Larson v. Dunn

• Decision Date: 02 January 1990
• Docket Number: No. C7-89-1139,C7-89-1139
• Parties: John LARSON, individually and John Larson as father and natural guardian of Jessica Larson, a minor, Appellant, v. Loree Carol DUNN, a/k/a Jennifer Dunn, et al., Defendants, Franklin Rigenhagen, et al., Rick Olson, Respondents.
• Court: Minnesota Court of Appeals

Page 751

449 N.W.2d 751

John LARSON, individually and John Larson as father and natural guardian of Jessica Larson, a minor Appellant, v. Loree Carol DUNN, a/k/a Jennifer Dunn, et al., Defendants Franklin Rigenhagen, et al., Rick Olson, Respondents.

No. C7-89-1139.

Court of Appeals of Minnesota.

Jan. 2, 1990.

Review Granted Feb. 21, 1990.

Syllabus by the Court

A custodial parent may recover in tort for damages resulting from intentional interference with custodial rights.

Terry W. Viesselman, Wilhelm & Viesselman, P.A., Fairmont, for appellant.

James R. Carlson, Muir, Heuel, Carlson & Spelhaug, P.A., Rochester, for Franklin Rigenhagen, et al.

Steven R. Sunde, Sunde, Olson, Kircher and Zender, Saint James, for Rick Olson.

Heard, considered and decided by HUSPENI, P.J., and SHORT and KLAPHAKE, JJ.

OPINION

SHORT, Judge.

John Larson appeals from the dismissal of his action against respondents for intentional interference with the custody of his minor child. The trial court dismissed the case for failure to state a claim upon which relief can be granted. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

FACTS

Appellant alleges the following facts. The marriage between appellant John Larson and Loree Dunn a/k/a Loree Larson was dissolved on November 5, 1980. Under the dissolution decree, the trial court awarded permanent custody of the parties' minor child, Jessica Larson, to John Larson. Before the marriage dissolution, temporary custody of Jessica had been awarded to Dunn with visitation privileges granted to Larson.

On the evening of November 5, 1980, Larson went to the home of respondents Franklin and Carol Rigenhagen, Dunn's parents, to pick up Jessica pursuant to a scheduled visitation. Franklin Rigenhagen refused to surrender Jessica to Larson stating Larson would have permanent custody of Jessica the next day. Rigenhagen then slammed the door on Larson's hand.

The next day, Larson returned to the Rigenhagen home with a copy of the judgment and decree to obtain custody of Jessica. Upon arriving, Franklin Rigenhagen told Larson that Dunn had fled with Jessica. Larson contacted local law enforcement authorities, and an arrest warrant was issued for Dunn.

In 1985, Larson learned from the Federal Bureau of Investigation (F.B.I.) that Dunn and Jessica had stayed with Dunn's aunt in California immediately after fleeing Minnesota, and that the Rigenhagens had helped to move them before Christmas of 1980. Based on this information, Larson commenced an action in federal court against the Rigenhagens, Loree Dunn, and the aunt in California. Larson later voluntarily dismissed the action in the face of denials by the defendants and the F.B.I.'s refusal to testify during an ongoing investigation. Dunn had not yet been located.

In August of 1987, federal authorities located and apprehended Dunn and Jessica in the state of Washington. During the intervening seven years, Larson expended over $50,000 in efforts to locate Jessica. As part of those efforts, the F.B.I. questioned the Rigenhagens about Jessica's whereabouts. Each denied any knowledge as to the location of Dunn or Jessica.

Upon being reunited with her father, Jessica stated that the Rigenhagens were frequent visitors while she and Dunn were outside Minnesota. According to Jessica, the Rigenhagens babysat her when Dunn remarried in 1983 and when her half-brothers were born. She stated that she was never permitted to go to the Rigenhagens' home. She also stated that her uncle, Rick Olson, had visited her while she was in hiding. Respondent Olson had denied to police and to Larson that he knew Jessica's location.

Larson filed this action against Dunn, the Rigenhagens, Olson and various other defendants who are not parties to this appeal. The complaint alleged intentional interference with custodial rights, intentional infliction of emotional distress, fraud, and civil conspiracy. The Rigenhagens and Olson moved for dismissal of the complaint for failure to state a claim upon which relief can be granted. The trial court granted the motion. The Rigenhagens alone moved for dismissal for lack of personal jurisdiction, and also moved for a stay pursuant to Minn.R.Civ.P. 41.04. The trial court denied both motions. Olson moved for summary judgment based on the pleadings and affidavits filed with the court. The trial court denied the motion, holding that genuine issues of material fact would remain if the custody tort is recognized on appeal, and that genuine issues of material fact exist as to the other alleged causes of action. Although the claims for emotional distress and fraud stated causes of action, the trial court apparently dismissed the entire complaint to make the case appealable.

ISSUES

I. Did the trial court err in dismissing a claim for intentional interference with custodial rights for failure to state a claim?

II. Did the trial court err in denying the Rigenhagens' motion to dismiss for lack of personal jurisdiction?

III. Did the trial court err in denying the Rigenhagens' motion for a stay pursuant to Minn.R.Civ.P. 41.04?

ANALYSIS

I.

Appellant Larson asks this court to recognize his claim for intentional interference with custodial rights. No Minnesota statute authorizes this cause of action and no prior Minnesota appellate court case has considered it. The supreme court has said that the novelty of a claim is no reason for denying its existence. Miller v. Monsen, 228 Minn. 400, 406, 37 N.W.2d 543, 547 (1949). It has also said:

[T]he development of the common law is within the proper sphere of judicial authority and responsibility. * * * * * * Lack of precedent cannot absolve a common-law court from responsibility for adjudicating each claim that comes before it on its own merits.

Salin v. Kloempken, 322 N.W.2d 736, 741 (Minn.1982). The history of this court and the supreme court is replete with examples of the recognition of novel claims. ¹ Minnesota appellate courts have refused to recognize new claims that are not authorized by existing law and also conflict with public policy. ² Thus, it is our duty to ascertain whether recognition of the tort of intentional interference with custodial rights promotes or conflicts with the public policy of this state, as evidenced by legislative and judicial declarations.

A. Background

Between 100,000 and 750,000 children are stolen from one parent by the other parent each year. L. Karp & C. Karp, Domestic Torts: Family Violence, Conflicts & Sexual Abuse, Sec. 5.01 (1989). Often the parent who abducts the child is aided by friends and family. Id. Seventy percent of these children are never returned to their custodial parent. Note, Tortious Interference With Custody: An Action to Supplement Iowa Statutory Deterrents to Child Snatching, 68 Iowa L.Rev. 495, 495 (1983).

The legislative response to parental child abduction has been dramatic. The Uniform Child Custody Jurisdiction Act (UCCJA) has been enacted in every state, the District of Columbia, and Puerto Rico. Karp, supra; see Minn.Stat. Sec. 518A.01-.25 (1988). The UCCJA provides for a single jurisdiction in which to resolve custody disputes, and thus removes the incentive to abduct the child and seek a custody determination in a more favorable forum. See Comment, Parental Kidnapping in Minnesota, 13 Wm. Mitchell L.Rev. 985, 998-99 (1987). On the federal level, Congress enacted the Parental Kidnaping Prevention Act of 1980 to facilitate enforcement of custody decrees and deter the unilateral abduction and removal of children. Parental Kidnaping Prevention Act of 1980, Pub.L. No. 96-611, 94 Stat. 3566 (codified in scattered sections of 18, 28 and 42 U.S.C.). The federal law provides for exclusive, continuing jurisdiction in the home state in custody determinations, unless the home state declines to exercise its jurisdiction or does not fulfill the jurisdictional requirements. See 28 U.S.C.A. Sec. 1738A(c), (d), (f), (g) (West Supp.1989). The federal law also attaches a criminal penalty to parental kidnapping cases. See 18 U.S.C.A. Sec. 1073 (West 1976 & Supp.1989).

Minnesota has made parental child abduction a felony. Minn.Stat. Sec. 609.26 (1988 & Supp.1989). The proscribed conduct includes child abduction and concealment. Id., subd. 1. It is a defense if the abductor or concealer reasonably believed the child was physically endangered while in the custody of the parent. Id., subd. 2. The cost of returning the child to the custodial parent may be allocated to the wrongdoer. Id., subd. 4.

Contrary to respondents' arguments, the existence of a criminal penalty for particular conduct does not deprive the injured person of a civil remedy. Minn.Stat. Sec. 611A.05 (1988). We recognize, however, that a criminal statute does not automatically give rise to a civil cause of action unless the statute expressly or by clear implication so provides. H.J. Inc. v. Northwestern Bell Corp., 420 N.W.2d 673, 675 (Minn.Ct.App.1988), pet. for rev. denied (Minn. May 16, 1988). No such language appears in Minn.Stat. Sec. 609.26. Neither the federal nor the state laws authorize a cause of action for damages by the victimized parent.

B. The tort of intentional interference with custodial rights.

To fill the void, virtually every state that has considered the issue has adopted the tort of intentional interference with custodial rights. ³ A very few states have rejected or deferred recognition of the tort. ⁴

The tort of intentional interference with custodial rights is defined as follows:

One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.

Restatement (Second) of Torts Sec. 700 (1977). Thus, a plaintiff must prove:

(1) The plaintiff had legal custody of a minor child;

(2) The defendant abducted,...