Hakkila v. Hakkila, 10970

• Decision Date: 21 March 1991
• Docket Number: No. 10970,10970
• Citation: 812 P.2d 1320,1991 NMCA 29,112 N.M. 172
• Parties: E. Arnold HAKKILA, Petitioner-Appellant, v. Peggy J. HAKKILA, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 1320

812 P.2d 1320

112 N.M. 172

E. Arnold HAKKILA, Petitioner-Appellant, v. Peggy J. HAKKILA, Respondent-Appellee.

No. 10970.

Court of Appeals of New Mexico.

March 21, 1991.

Certiorari Denied June 4, 1991.

[112 NM 172] Steven L. Tucker, Jones, Snead, Wertheim, Rodriguez & Wentworth, P.A., Santa

[112 NM 173] Fe, and Byron L. Treaster, Los Alamos, for petitioner-appellant

George M. Scarborough and Winston Roberts-Hohl, Santa Fe, for respondent-appellee.

OPINION

HARTZ, Judge.

In response to the petition of E. Arnold Hakkila (husband) for dissolution of marriage, Peggy J. Hakkila (wife) counter-petitioned for damages arising from alleged intentional infliction of emotional distress. Husband appeals from the judgment entered against him on the tort claim and from the award of attorney's fees in the divorce proceeding. We reverse the damage award and remand for further proceedings with respect to the award of attorney's fees.

I. FACTS

Husband and wife were married on October 29, 1975. Each had been married before. They permanently separated in February 1985. Husband filed his petition for dissolution of marriage the following month. Husband, who holds a Ph.D. in chemistry, had been employed at Los Alamos National Laboratory throughout the marriage. Wife, a high school graduate with credit hours toward a baccalaureate degree in chemistry and a vocational degree as a chemical technician, had been employed at the laboratory as a secretary for seven years and as a chemical technician for about seven and one-half years. She voluntarily terminated her employment in December 1979.

The district court found that "[wife's] emotional and mental health, especially since the parties' separation, has been shown to have been characterized by acute depression and one psychotic episode." The district court's findings noted conflicting testimony concerning wife's past and current mental condition. The district court summarized one psychologist's testimony as diagnosing wife "as subject to a borderline personality disorder pre-dating the parties' marriage," and summarized another's as diagnosing her as "an intellectualizing personality in the early years of her marriage and as suffering from acute depression since approximately 1981." Apparently all the experts agreed that wife was temporarily emotionally disabled at the time of the hearing.

Finding No. 22 summarized husband's intentional misconduct:

The manner in which [husband] treated [wife] during the marriage and which resulted in her disability and impairment is as follows. [Husband] on occasions throughout the marriage and continuing until the separation[:]

a. assaulted and battered [wife],

b. insulted [wife] in the presence of guests, friends, relatives, and foreign dignitaries,

c. screamed at [wife] at home and in the presence of others,

d. on one occasion locked [wife] out of the residence over night in the dead of winter while she had nothing on but a robe,

e. made repeated demeaning remarks regarding [wife's] sexuality,

f. continuously stated to [wife] that she was crazy, insane, and incompetent,

g. refused to allow [wife] to pursue schooling and hobbies,

h. refused to participate in normal marital relationship with [wife] which ultimately resulted in only having sexual relations with [wife] on four occasions in the last three years of the marriage,

i. blamed his sexual inadequacies upon [wife].

Finding No. 26 stated:

[Husband's] acts in intentionally inflicting severe emotional distress upon [wife] was so outrageous in character and so extreme in degree as to be beyond all possible bounds of decency and were atrocious and utterly intolerable.

The district court also found:

31. [Wife] has been sufficiently legally incompetent since 1981 to be unable to file a lawsuit against [husband] for damages, and any statute of limitations which may have run prior to the filing of [wife's] counterclaim for the period from 1981 to the date of the filing of the countersuit were tolled because of such disability.

(Husband has not raised the statute of limitations issue on appeal.)

With respect to each of the matters listed by the district court in Finding No. 22, the record shows¹:

a. There was evidence of several incidents of assault and battery. In late 1984 when wife was pushing her finger in husband's chest, he grabbed her wrist and twisted it severely. In 1981 during an argument in their home husband grabbed wife and threw her face down across the room, into a pot full of dirt. In 1978 when wife was putting groceries in the camper, husband slammed part of the camper shell down on her head and the trunk lid on her hands. In 1976 and "sometimes thereafter" during consensual sexual intercourse husband would use excessive force in attempting to stimulate wife with his hands.

b. The one incident in which husband insulted wife in the presence of others was at a friend's Christmas party. At about 11:00 p.m. wife approached husband, who was "weaving back and forth with his hands in his pockets," and suggested that they go home. Husband began screaming, "You f_____ bitch, leave me alone." Wife excused herself and walked home alone.

c. Wife also testified that when she and husband were home alone he would go into rages and scream at her. There was no evidence of his screaming at her in the presence of others except for the incident described in "b."

d. The locking-out incident occurred after husband returned from a trip. Wife had been at a friend's home where she had eaten dinner and had some wine. During an argument that had ensued when he returned, she grabbed his shirt and popped all the buttons off. She went downstairs and stepped outside. He closed and locked the door. She went across the street to a home of neighbors, who let her in. He then threw his clothes into a camper and drove off for the night. When he returned the next morning, they made up and made love.

e. On several occasions husband told wife that "you prefer women to men." He did not use the word "lesbian." He testified that he meant only that wife preferred the company of other women to his company. She did not testify that his remarks had sexual connotations.

f. Throughout the marriage husband made remarks such as, "You're just plain sick, you're just stupid, you're just insane."

g. With respect to the finding that husband "refused to allow [wife] to pursue schooling and hobbies," husband's brief-in-chief contends that no evidence supports the finding. Wife's answer brief does not respond to the contention, so we will not consider that finding as support for the judgment.

h., i. With respect to the final two items in the finding, husband acknowledges that their sexual relationship atrophied and that wife testified that (1) it was his decision not to engage in sexual relations more frequently, and (2) he blamed her for their poor sexual relationship.

II. SHOULD WE RECOGNIZE THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IN THE MARITAL CONTEXT?

A. Introduction

Husband argues that as a matter of public policy one spouse should have no cause of action against the other spouse for intentional infliction of emotional distress. Wife responds that husband's argument is foreclosed in this court by the New Mexico Supreme Court's recognition of the tort.

We reject, at least for the time being, husband's suggestion. Nevertheless, the policy grounds opposing recognition of the tort in this context counsel caution in permitting lawsuits of this nature.

B. Supreme Court Precedents Do Not Resolve the Matter

"New Mexico recognizes the tort of intentional infliction of emotional distress." Ramirez v. Armstrong, 100 N.M. 538, 540, 673 P.2d 822, 824 (1983) (emphasis in original); see Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (Ct.App.1981); Acosta, The Tort of "Outrageous Conduct" in New Mexico: Intentional Infliction of Emotional Harm Without Physical Injury, 19 N.M.L.Rev. 425 (1989). The tort (also known as the tort of "outrage") is described in Restatement (Second) of Torts Section 46 (1965) (the Restatement ):

Outrageous Conduct Causing Severe Emotional Distress.

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.

Wife contends that we must recognize the tort when committed by one spouse against the other because New Mexico has abandoned immunity for interspousal torts. See Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975) (wrongful death--airplane crash); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App.1973) (intentional stabbing). Yet the abolition of immunity does not mean that the existence of the marriage must be ignored in determining the scope of liability. After explaining the reasons for abolition of interspousal immunity, the commentary to Restatement Section 895F points out:

The intimacy of the family relationship may ... involve some relaxation in the application of the concept of reasonable care, particularly in the confines of the home. Thus, if one spouse in undressing leaves shoes out where the other stumbles over them in the dark, or if one spouse spills coffee on the other while they are both still sleepy, this may well be treated as not negligence.

Id., comment h. The comment refers to Section 895G comment k, which explains that despite abolition of parental immunity:

The intimacies of family life also involve intended physical contacts that would be actionable between strangers...