Massey v. Massey

• Decision Date: 07 March 1991
• Docket Number: No. 01-89-01188-CV,01-89-01188-CV
• Citation: 807 S.W.2d 391
• Parties: Henry P. MASSEY, Appellant, v. Gayle Scott MASSEY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 391

807 S.W.2d 391

Henry P. MASSEY, Appellant, v. Gayle Scott MASSEY, Appellee.

No. 01-89-01188-CV.

Court of Appeals of Texas Houston (1st Dist.).

March 7, 1991.

Rehearing Denied April 11, 1991.

Jon Mercer, Theodore C. Flick, Houston, for appellant.

John F. Nichols, Houston, for appellee.

Before STEPHENS ^*, SAM BASS and PRICE ^**, JJ.

OPINION

STEPHENS, Justice.

On August 8, 1989, following a trial and jury verdict, the trial court signed its final decree of divorce and judgment, dissolving the 22-year marriage of Henry P. Massey and Gayle Scott Massey and dividing their community estate. In six points of error, Henry Massey appeals from those portions of the judgment dividing the parties' community property and awarding Gayle Massey monetary damages and attorneys' fees.

Henry Massey contends that the trial court improperly characterized some assets and incorrectly valued others, resulting in a disproportionate division of the parties' community property estate. In addition, Henry Massey challenges the court's award to Gayle Massey of certain monetary damages that he claims were not recoverable as a matter of law.

Specifically, Henry Massey appeals the following aspects of the trial court's judgment:

1. The value placed on the Columbus State Bank stock of $3000 per share by the jury (point of error number 4);

2. The trial court's exclusion of certain parol evidence and its ruling, as matter of law, that 157 shares of Columbus State Bank stock and two tracts of Colorado County land were community property rather than gifts to Henry Massey's separate estate (point of error number 5);

3. The trial court's overall disproportionate division of property which, appellant contends, was manifestly inequitable, unfair and unjust (point of error number 1);

4. The award, as part of an "owelty" judgment, of $55,000 in damages assessed by the jury for constructive fraud (point of error number 2);

5. The award of $90,000 in attorneys' fees and $20,000 in appellate attorneys' fees, $30,000 of which comprised an additional part of the "owelty" judgment, and some other part of which was allegedly attributable to the prosecution of Gayle Massey's tort claim and was, therefore, not recoverable as a matter of law (point of error number 3); and

6. The trial of Gayle Massey's tort claim, coupled with the divorce, and the award of $362,000 assessed by the jury as damages for emotional distress (point of error number 6).

The Tort Claim

We first consider appellant's point of error six, particularly his contention that, absent a finding of physical injury, a cause of action for infliction of emotional distress may not be asserted in a divorce suit or, alternatively, if such a cause of action does exist, that the trial court's failure to grant his motion for severance and a separate trial of Gayle Massey's tort suit was reversible error.

Appellant contends that, without proof of physical injury, Texas does not recognize a cause of action for the intentional or negligent infliction of emotional distress in a suit for divorce. He bases his conclusion squarely on the recent opinion in Chiles v. Chiles, 779 S.W.2d 127 (Tex.App.--Houston [14th Dist.] 1989, writ denied), and cites no other Texas statute or case law as authority for his proposition. The Chiles opinion has been questioned because of its interpretation of case law regarding the evolution of this tort as well as its independent conclusion regarding the prohibition of the tort cause of action in the family law context. ¹

Our conclusions, after reviewing the history of the tort of intentional and negligent infliction of emotional distress, significantly differ from those of the court in Chiles. After a careful study of Chiles and related supreme court authority, we find that the tort of infliction of emotional distress, without physical injury, is recognized as a separate cause of action in Texas and that the status of that cause of action in the area of family law is unclear.

In arriving at its conclusions to the contrary, the Chiles court acknowledged that the supreme court, in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), established, without limitation, that proof of physical injury is no longer required to recover for negligent infliction of emotional distress. St. Elizabeth Hospital, 730 S.W.2d at 654; see also Havens v. Tomball Community Hospital, 793 S.W.2d 690, 692 (Tex.App.--Houston [1st Dist.] 1990, writ requested) (physical injury is not an element of the tort of intentional infliction of emotional distress).

However, the Chiles opinion concludes, without citation of examples, that "The majority of cases dealing with emotional distress, as distinguished from physical injury, have found emotional distress to be noncompensable." Chiles, 779 S.W.2d at 131 (emphasis in the original). We disagree.

In St. Elizabeth Hospital v. Garrard, the supreme court discussed the requirement of physical injury in a suit for mental anguish damages in the following terms:

Clearly, freedom from severe emotional distress is an interest which the law should serve to protect.... Having recognized that an interest merits protection, it is the duty of this court to continually monitor the legal doctrines of this state to insure the public is free from unwarranted restrictions on the right to seek redress for wrongs committed against them. The physical manifestation requirement is one such restriction.... Thus we hold that proof of physical injury resulting from mental anguish is no longer an element of the common law action for negligent infliction of mental anguish.

St. Elizabeth Hospital, 730 S.W.2d at 653-654.

One month after it issued the opinion in St. Elizabeth Hospital, the supreme court handed down its opinion in Price v. Price, 732 S.W.2d 316 (Tex.1987). In the Price case, the court re-examined the doctrine of interspousal immunity, which mandates that one spouse cannot sue another for negligent conduct, and unequivocally abolished the doctrine "as to any cause of action." Price, 732 S.W.2d at 319.

The Chiles court acknowledged the Price opinion. However, in its analysis of Price, the Chiles opinion incorrectly states that, "The court candidly admitted ... that the issue of interspousal immunity had not been preserved for their review." Chiles, 779 S.W.2d at 131. If this statement were accurate, then the supreme court's holding in Price would largely be rendered dicta. What the supreme court said, however, was that the issue of interspousal immunity had not been preserved for its review in the case of Stafford v. Stafford, 726 S.W.2d 14, 15-16 (Tex.1987), decided by the court just four months prior to Price. See Price, 732 S.W.2d at 319-20. The clear implication of the statement made in Price was that the court would have overruled the doctrine in Stafford had the issue been before the court at that time. Id.

After rejecting the historical basis for the doctrine of interspousal immunity, that is, the fiction that husband and wife were one person, the Price court concluded that there was no longer:

any policy justification for retaining this feudal concept of the rights of parties to a marriage.... It is difficult to fathom how denying a forum for the redress of any wrong could be said to encourage domestic tranquility. It is equally difficult to see how suits based in tort would destroy domestic tranquility, while property and contract actions do not....

Price, 732 S.W.2d at 318.

To determine whether the supreme court specifically intended that the doctrine be abolished in the context of suits for divorce, we need only read on:

The doctrine of interspousal immunity has previously been abrogated as to some causes of action in this jurisdiction. We now abolish that doctrine completely as to any cause of action. We do not limit our holding to suits involving vehicular accidents only, as has been done by some jurisdictions and as has been urged upon us in this case. To do so would be to negate meritorious claims such as was presented in Stafford v. Stafford, 726 S.W.2d 14 (Tex.1987). ² In that case a husband had transmitted a venereal disease to his wife.... While we ruled for her, the issue of interspousal immunity had not been preserved for our review. To leave in place a bar to suits like that of Mrs. Stafford or other suits involving non-vehicular torts would amount to a repudiation of the constitutional guarantee of equal protection of the laws. Tex.Const.Ann. art. I, § 3.

Our result today is compelled by the fundamental proposition of public policy that the courts should afford redress for a wrong, and the failure of the rationale supporting the doctrine [of interspousal immunity] to withstand scrutiny.

Price, 732 S.W.2d at 319-20.

Based upon the unlimited and unequivocal holding by the supreme court in St. Elizabeth Hospital v. Garrard, we hold that the tort of intentional or negligent infliction of emotional distress is an established cause of action that does not require proof of physical injury. The equally clear mandate of the supreme court in Price v. Price further confirms that a cause of action for infliction of emotional distress may be brought by one spouse against the other. A selective requirement of physical injury in family law cases which does not exist in any other area of the law would be discriminatory, denying equal protection to persons because of their status as partners in a marriage relationship. Price, 732 S.W.2d at 320.

Severance

We next address appellant's alternative argument that, if a cause of action does exist for infliction of emotional distress without physical injury, it may not be joined with a suit for divorce. Appellant contends that the trial court erred in failing to grant a separate trial on Gayle Massey's tort claim and that he was prejudiced thereby.

A plaintiff in his or her claim may join as independent claims any or as many claims, either legal or equitable or both, as he or she may have...