Flugge v. Flugge

• Decision Date: 02 June 2004
• Docket Number: No. 23001, No. 22989
• Citation: 681 NW 2d 837,2004 SD 76
• Parties: RICHARD C. FLUGGE, Plaintiff and Appellant, v. BARBARA A. FLUGGE, Defendant and Appellee.
• Court: South Dakota Supreme Court

2004 SD 76

681 NW 2d 837

RICHARD C. FLUGGE, Plaintiff and Appellant, v. BARBARA A. FLUGGE, Defendant and Appellee.

Nos. 22989, 23001

Supreme Court of South Dakota.

Considered on Briefs on April 26, 2004

Opinion Filed June 2, 2004

JOHN R. PEKAS, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.

DAVID ALAN PALMER, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

SABERS, Justice.

[¶ 1.] Richard Flugge brought a lawsuit against his former wife, Barbara Flugge, claiming abuse of process, barratry, unlawful eviction and punitive damages. Barbara counterclaimed for intentional infliction of emotional distress and malicious prosecution. Each party moved for summary judgment and the circuit court granted the motions. Both parties appeal.

FACTS

[¶ 2.] Richard and Barbara were married on February 16, 1969 and were contemplating divorce in 1998. During the unpleasantness that surrounded the parties' separation, Barbara filed for a temporary restraining order against Richard on an allegation that Richard assaulted her and threatened violence with a handgun. That restraining order was later extended. As a result of the protection order, Richard was required to leave the marital home. Barbara subsequently obtained another protection order against Richard based on allegations by their minor child that Richard hit him.

[¶ 3.] On January 26, 2000, the parties entered into a Stipulation and Agreement in anticipation of divorce which purported to settle all of the parties' claims against one another. On January 31, 2000, the parties were divorced. On October 26, 2001, Richard filed a motion for change of custody. That motion was denied after a custody trial which ended on May 1, 2002. Richard initiated the present case on August 16, 2002. Barbara counterclaimed.

[¶ 4.] The trial court granted both parties' motions for summary judgment. Richard appeals raising five issues, which we consolidate into two:

1. Whether the circuit court erred in granting Barbara's motion for summary judgment on Richard's claims arising out of her petitions for protection orders.

2. Whether the circuit court erred in refusing to grant Richard's motion to strike under SDCL 15-6-12(f) for violation of Local Rule 11(A).

By notice of review, Barbara raises one issue:

3. Whether the circuit court erred in granting Richard's motion for summary judgment on Barbara's counterclaim for intentional infliction of emotional distress and malicious prosecution.

STANDARD OF REVIEW

[¶ 5.] Summary judgment is proper where,

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

SDCL 15-6-56(c).

We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party. In addition, the moving party has the burden of clearly demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Luther v. City of Winner, 2004 SD 1, ¶6, 674 NW2d 339, 343 (internal citations and quotations omitted).

[¶ 6.] 1. Whether the circuit court erred in granting Barbara's motion for summary judgment on Richard's claims arising out of her petitions for protection orders.

[¶ 7.] Richard's claims are based on the protection orders obtained in 1998 and 1999 by Barbara on the allegation that Richard had been physically abusive. Richard now claims that the protection orders were falsely obtained. Although Barbara denies the allegation, she states in her brief, "for purposes of there being no genuine issues of material fact, the Court may assume, arguendo, that Richard's assertion is true."

[¶ 8.] Barbara filed the first petition for a protection order on September 14, 1998. The petition alleged that Richard caused, attempted to cause and inflicted fear of physical harm or bodily injury. The magistrate entered an ex parte temporary order of protection which was to expire on October 13, 1998. On September 21, 1998, the circuit court entered an order of protection. The order stated that the parties were present and represented by counsel. The court found, "without admitting to the allegations in the petition, [Richard] waives further hearing, findings of fact and conclusions of law, and stipulates to the entry of an order of protection[.]" (Emphasis supplied.) The order was effective for one year. Among the terms stipulated by Richard were: "[Barbara] shall have sole possession of the residence" and "[Richard] shall immediately leave the residence." Richard did not appeal entry of the protection order.

[¶ 9.] Barbara filed a second verified petition for a protection order on January 5, 1999. The second order was based on the allegation of the parties' ten year old son that Richard hit him. The petition indicated that the child's counselors recommended that the child not be left alone with Richard until Richard underwent a psychiatric evaluation. The petition requested an order that Richard be restricted to supervised visitation with the child and that Richard undergo psychiatric evaluation. An ex parte protection order was entered that day and set to expire on January 12, 1999. The parties, who were both represented by counsel, entered into a stipulation on January 14, 1999 that each party and the child were to undergo mental health evaluations. The court incorporated the stipulation into an order "pursuant to hearing held January 12, 1999," that continued the order that visitation between Richard and the child be supervised. Richard did not attempt to set aside the order and there is no indication in the record that he refuted the allegation of abuse. Several months later, the minor child indicated to his counselors that his allegation that Richard hit him was false.

[¶ 10.] The January 26, 2000 Stipulation and Agreement purported, among other things, to settle custody of the minor child. Contrary to the spirit of the agreement, Richard made a motion to change custody without any showing of a substantial change in circumstances. The trial court denied the motion, finding it "frivolous." Undeterred, Richard brought the present action within weeks of settling payment of Barbara's attorney fees from the action that was determined to be frivolous.

[¶ 11.] The circuit court granted both motions for summary judgment, finding that the parties' claims were "entirely derivative of the initial divorce proceeding" and "the sheer number of times the parties have attempted to litigate the same issues in this judicial circuit is also determinative as a matter of res judicata." The court also found that the parties "again attempt to use the judicial system for the insincere purpose of dragging out divorce hostility."

[¶ 12.] The circuit court came to its conclusion by "synthesizing the principle of res judicata with the holding in [Christians v. Christians, 2001 SD 142, 637 NW2d 377]." The court noted that this Court had recognized in Christians that a cause of action by a former spouse against the other spouse "requires the existence of a tort independent from the divorce proceeding." The circuit court went on to note that the parties' claims were completely derivative of the initial divorce proceeding and concluded, "both doctrinally and [as] a matter of common sense, res judicata bars issues previously litigated to a final result from being re-litigated in a subsequent and distinct lawsuit."

[¶ 13.] In Christians, we acknowledged that conduct leading to the dissolution of a marriage does not constitute grounds for a claim of intentional infliction of emotional distress. However, we noted that independent torts are actionable. Christians, 2001 SD 142 at ¶21, 637 NW2d at 382 (citing Henry v. Henry, 534 NW2d 844, 846 (SD 1995); Scotvold v. Scotvold, 68 SD 53, 55, 298 NW 266, 269 (1941)). We held that to recover for a claim of intentional infliction of emotional distress, the claimant must establish the necessary elements of the tort separate from the grounds for divorce. In a special concurrence, Justice Konenkamp stated, "to ensure that these tort claims are not conceived out of petty spite or as leverage for concessions on divorce issues, trial courts [] must sift out unmeritorious suits." Christians, 2001 SD 142 at ¶41, 637 NW2d at 385 (Konenkamp, J., concurring specially).

[¶ 14.] The elements we consider when determining whether an issue is res judicata are well settled. They are:

1) whether the issue decided in the former adjudication is identical with the present issue;

2) whether there was a final judgment on the merits;

3) whether the parties are identical; and

4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication.

Faulk v. Faulk, 2002 SD 51, ¶17, 644 NW2d 632, 635 (additional citations omitted). The only element apparently disputed by Richard is whether he had a full and fair opportunity to litigate his claims. He asserts that since Christians was not decided until after the divorce was finalized, element four was not satisfied. However, since 1941, this Court has acknowledged the right of one spouse to bring a civil suit against the other spouse. Scotvold, 68 SD at 55, 298 NW at 269. See also, Gassman v. Gassman, 296 NW2d 518, 522 (SD 1980); Henry, 534 NW2d at 847. Richard's assertion that he did not have a full and fair opportunity to litigate his current claims because the law did not allow it at the time is without merit.

[¶ 15.] Every one of Richard's claims is based on the argument that the protection orders were falsely obtained. Richard was present and represented by counsel when the orders regarding both petitions for protection orders were entered. In both cases, he stipulated to entry of orders and did...