McCulloh v. Drake

• Decision Date: 15 June 2001
• Docket Number: No. 99-316, No. 99-317.
• Citation: 2001 WY 56,24 P.3d 1162
• Parties: Gerri E. McCULLOH, f/k/a Gerri E. Drake, Appellant (Plaintiff), v. John W. DRAKE, Appellee (Defendant). John W. Drake, Appellant (Defendant), v. Gerri E. McCulloh, f/k/a Gerri E. Drake, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

24 P.3d 1162

2001 WY 56

Gerri E. McCULLOH, f/k/a Gerri E. Drake, Appellant (Plaintiff), v. John W. DRAKE, Appellee (Defendant).

John W. Drake, Appellant (Defendant), v. Gerri E. McCulloh, f/k/a Gerri E. Drake, Appellee (Plaintiff).

Nos. 99-316, 99-317.

Supreme Court of Wyoming.

June 15, 2001.

Representing Gerri McCulloh: C. John Cotton, Gillette, WY. Argument by Mr. Cotton.

Representing John Drake: Ann M. Rochelle of Williams, Porter, Day & Neville, P.C., Casper, WY, and John D. Ward, Sheridan, WY. Argument by Ms. Rochelle.

Before LEHMAN, C.J., and THOMAS,¹ MACY,² GOLDEN, and HILL, JJ.

LEHMAN, Chief Justice.

[¶ 1] The marriage of Gerri E. McCulloh (the wife) and John W. Drake (the husband) endured for approximately three and a half years before the wife sought a divorce. One son was produced by the marriage. The parties' divorce proceedings involved tort allegations in addition to the usual issues regarding child custody, child support, alimony, and property division. Neither party was completely satisfied with the way the trial court decided the various issues, and they both filed appeals.

[¶ 2] We affirm in part, reverse in part, and remand.

ISSUES

[¶ 3] The wife presents the following issues for our review:

Issue No. 1: Did the Court err in ordering divided custody, and in granting divided custody and primary decision making authority to a known perpetrator of domestic abuse?

Issue No. 2: Did the Court err in connection with child support calculations?

Issue No. 3: Did the Court err in connection with property settlement issues?

Issue No. 4: Did the Court err in sua sponte denying Plaintiff a jury trial on tort issues?

Issue No. 5: Did the Court err in failing to apply controlling Wyoming law in connection with the determination of punitive damages?

Issue No. 6: Did the Court err in ordering payment to the GAL directly from the parties, instead of out of the marital estate generally, prior to distribution?

The husband seeks our review of issues pertaining to the tort claims:

1. As to Wife's tort claims, Husband is only contesting the tort claim findings and rulings as to the September, 1997 pillow incident. Husband specifically raises the following issues: (a) While Wyoming has abrogated interspousal immunity and has adopted the tort of emotional distress, does Wyoming recognize the tort of intentional infliction of emotional distress in a marital context? (b) If the tort does exist in a marital setting, Husband's conduct with regard to the pillow incident in September, 1997 was not outrageous; Husband did not act with the requisite intent; Wife did not suffer severe emotional distress; and Husband's alleged conduct of inflicting ... emotional harm did not proximately cause[] Wife's damages.

2. As to punitive damages, Husband asserts that Wife failed in the first instance to make a prima facie case and/or prove her claim for punitive damages by a preponderance of the evidence.

3. If this case is remanded as to the tort issues, Husband should be allowed to have Wife's counseling, psychological, psychiatric and medical records prior to marriage so as to demonstrate Wife's condition prior to the marriage. The Trial Court improperly limited Husband's access to Wife's medical, psychological, psychiatric and counseling records to those since the date of the marriage.

4. If this case is remanded, Husband should be allowed to take the deposition of Cody McCulloh Cabe, Wife's son from her first marriage.

FACTS

[¶ 4] The husband and the wife were married on March 5, 1994. The wife had one son from a prior marriage, and the couple had another son in October of 1994. During the marriage, the family lived on a ranch that the husband purchased prior to the marriage. After moving to the ranch, the couple commenced the operation of a Morgan horse business.

[¶ 5] The wife asserts that, beginning shortly after the marriage, the husband began a pattern of physical and sexual abuse. She maintains that various incidents of abuse led up to an encounter where the husband held a pillow over her face, which ultimately caused her departure from the relationship. The wife left her husband on October 4, 1997, and filed for divorce on December 31, 1997. On October 29, 1998, the wife filed the complaint wherein she asserted the various tort claims and requested a jury trial. The trial court denied the jury trial request and, from July 26, 1999, through July 30, 1999, heard evidence pertaining to child custody, child support, property division, alimony, attorney and guardian ad litem fees, the tort claims, and punitive damages.

[¶ 6] At the conclusion of the trial, the trial court awarded shared physical custody of the child but gave primary decision-making power regarding medical and educational issues to the husband. It also awarded $1,200 per month to the wife for child support. Regarding the property that was acquired before and during the marriage, the trial court made the following finding:

Prior to the marriage Father was worth about 3.9 million and at the time of separation he was worth about 4.9 million (EX. YYYY-2). The 1 million in increased worth during this marriage was primarily due to more inheritance-not earned appreciation. Very little evidence supports the proposition that Father's holdings appreciated as a result of Plaintiff's efforts. The horse business pursued by both parties lost considerable amounts during this marriage.

The wife was allowed to keep the $100,000 she withdrew from the parties' joint bank account in October of 1997 as well as the $50,000 the husband was ordered to pay her. She was also awarded $200,000, the financial contributions made by the husband to her son from a previous marriage, her personal bank accounts and investment portfolio, four horses, two miniature donkeys, a pickup and horse trailer, a house in Sheridan, and items personal to her. The trial court awarded the husband his bank accounts and investment portfolio that included his inheritance from his parents and grandmother, fifteen horses, his interest in the various properties he owned before the marriage, the ranch that the couple and the boys lived on during the marriage, several vehicles and trailers, and items personal to him.

[¶ 7] The trial court allowed the wife to keep the temporary spousal support of $1,400 per month she was given from March 1998 through August of 1999 but ruled that she was not entitled to any future alimony, finding the property division took into account any entitlement to future alimony. Finally, the trial court ordered the husband and the wife to split the guardian ad litem fees and to bear the responsibility for their own attorney fees and costs.

[¶ 8] In addressing the various tort claims, the trial court found, regarding the claims of negligent infliction of emotional distress, intentional infliction of emotional distress (except for the pillow incident), outrageous conduct, and sexual assault, that the wife failed "to state a claim for which relief can be granted; to prove the claim by a preponderance of the evidence; to present sufficient evidence on damages; and/or to timely file some allegations." Specifically with regard to the sexual assault claim, the trial court found that the wife "failed to prove by a preponderance of the evidence that a tortious sexual assault occurred."

[¶ 9] The trial court found that the wife did prove a tort occurred in September of 1997 when the husband briefly held a pillow over her face and concluded that, although she did not currently suffer a disability, there was some proof she suffered emotional distress as a result of the incident. Accordingly, the trial court awarded damages of $4,250 and $750 in punitive damages, using the following rationale to arrive at the latter figure:

Given the incompatibility of these parties, conflict was inevitable. Happily, there were no stitches nor broken bones. Still, court decisions must reflect society's disdain for domestic abuse of any type. Hence, the Court finds punitive damages are appropriate.

... The Court finds the September 1997 incident where Defendant covered Plaintiff's head briefly with a pillow most closely resembles a battery under W.S. 6-2-501(b). The maximum criminal fine for violating this statute is $750.00.

[¶ 10] Neither party was satisfied with the trial court's final decision, and they each filed an appeal. In the wife's appeal, she takes issue with the divided custody order, the award of primary decision-making authority to the husband, the child support award, and the property settlement. The wife also claims that the trial court should not have denied her request for a jury trial on the tort issues and it failed to apply controlling Wyoming law with regard to the punitive damages. She lastly complains that the trial court ordered each party to pay half of the guardian ad litem fees rather than requiring payment from the marital estate prior to distribution. The husband questions whether Wyoming recognizes the tort of intentional infliction of emotional distress in a marital context and, if so, whether the elements of that tort were satisfied with regard to the pillow incident. He also asserts that the wife failed to prove her claim for punitive damages by a preponderance of the evidence. Finally, he requests discovery of the wife's psychological records from prior to the marriage and seeks to take the deposition of the wife's son from a previous marriage if the case is remanded.

DISCUSSION

A. Child Custody & Support

[¶ 11] The wife asserts that the trial court erred when it ordered divided custody and gave primary decision-making authority to a perpetrator of domestic violence. The husband responds that the trial court properly applied the best-interests-of-the-child standard.

[¶ 12] After the parties' oral arguments in this court, the wife filed a Petition for Modification of Decree of Divorce to Place Primary Custody With Petitioner (Mother) as Child's Historic Primary...