Neal v. Neal, 19086

• Decision Date: 29 June 1993
• Docket Number: No. 19086,19086
• Citation: 125 Idaho 627,873 P.2d 881
• Parties: Thomas A. NEAL, Plaintiff-Counterdefendant Respondent, v. Mary NEAL, Defendant-Counterplaintiff-Appellant, and Jill LA GASSE, Counterdefendant-Respondent.
• Court: Idaho Court of Appeals

Page 881

873 P.2d 881

125 Idaho 627

Thomas A. NEAL, Plaintiff-Counterdefendant Respondent, v. Mary NEAL, Defendant-Counterplaintiff-Appellant, and Jill LA GASSE, Counterdefendant-Respondent.

No. 19086.

Court of Appeals of Idaho.

June 29, 1993.

Review Granted July 30, 1993.

[125 Idaho 628] Marcus, Merrick & Montgomery, Boise, for appellant. Craig Marcus argued.

Ringert, Clark, Chtd; Moffatt, Thomas, Barrett, Rock & Fields, Boise, for respondents. Jeffrey R. Christenson argued for respondent Thomas A. Neal and Kirk R. Helvie argued for respondent Jill LaGasse.

SUBSTITUTE OPINION

The Court's prior opinion, dated April 26, 1993, is hereby withdrawn.

WALTERS, Chief Judge.

This is an appeal from an order dismissing a wife's action for damages allegedly suffered as a result of the adulterous relationship between her husband and his mistress. On review, we are asked to decide whether a party has an actionable right to an exclusive sexual relationship with his or her spouse. We also consider whether, under the facts alleged, a party may recover for mental anguish resulting from the fear that he or she may have contracted sexually transmitted diseases. Finally, we address whether the facts alleged are sufficient to constitute a civil battery for which nominal damages may be awarded. As explained below, we answer these questions in the negative and affirm the district court's order of dismissal.

I. Facts and Procedural Background

For purposes of this review, we deem the following facts to be true. Thomas and Mary Neal were married in 1984. They had one child. In 1988, the couple moved to Boise where Thomas, a licensed physician, took a residency at a local medical clinic. His work also took him to Spokane, Washington, the home of Jill LaGasse. In November of 1988, Thomas and LaGasse began an extra-marital affair which they kept secret from Mary for approximately five months. During this time Thomas engaged in sexual intercourse with Mary and also with LaGasse. Mary did not discover the affair until the spring of 1989, when she confronted Thomas with her suspicions. Thomas admitted the relationship and advised he wanted a divorce.

In 1990, Thomas filed an action for divorce in the magistrate's court. Mary responded with an answer and counterclaim asking that she be granted the divorce on grounds of adultery, extreme cruelty, and wilful desertion, and that the magistrate make a disproportionate property award in her favor. She also asked that the decree award her spousal maintenance, child custody and child support. Mary asserted additional counterclaims to recover damages for the tortious interference with her marital relationship and for her emotional distress suffered as a result of her fear of contracting sexually transmitted diseases. Viewing these damages claims to be beyond its jurisdiction, the magistrate transferred the matter to the district court. The district judge bifurcated the action and remanded to the magistrate the issues pertaining to the divorce, including property division, spousal support, child custody and child support. Those matters were decided by the magistrate and are not before us in this appeal. The district court retained Mary's action for damages. Subsequently, Mary filed an amended pleading in the district court joining her husband's mistress, Jill LaGasse, as an additional party counterdefendant under I.R.C.P. 18 and 19. Thomas and LaGasse then filed for dismissal under I.R.C.P. 12(b)(6), contending that the amended pleading failed to state any claim upon which relief could be granted. In support of his motion, Thomas Neal submitted evidentiary material consisting of his affidavit and extracts from the deposition of Mary Neal. The court accepted these materials and the motion was converted to a proceeding for summary judgment, as required under the last section of Rule 12(b). ¹

In her brief in response, ² Mary advanced various theories of recovery based on the right to damages for the intentional interference with and invasion of her marital relationship. She also argued that she was entitled to damages for her emotional distress resulting from the fear that she may have contracted AIDS, herpes, or other sexually transmitted diseases. After considering the materials and arguments of the parties, the district court dismissed Mary's action. Mary filed this appeal.

II. Issues Presented and Standard of Review

This appeal presents the following issues for review:

(A) whether Mary has an actionable right to an exclusive sexual relationship with her husband;

(B) whether, under the facts alleged, Mary can recover damages for emotional distress resulting from her fear that she may have contracted sexually transmitted diseases; and

(C) whether, under the facts alleged, Mary can recover nominal damages for battery.

As noted above, the motion for dismissal was converted to and disposed of as a motion for summary judgment under I.R.C.P. 56, as required under the last section of Rule 12(b). Accordingly, the standards applicable to a summary judgment govern our review. On appeal from an order granting summary judgment, we will review the pleadings, depositions, and admissions on file, together with the affidavits, if any, to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Ray v. Nampa School Dist. No. 131, 120 Idaho 117, 814 P.2d 17 (1991). Standards applicable to summary judgment require the district court, and the appellate court on review, to liberally construe facts in the existing record, and draw all reasonable inferences therefrom, in favor of the party opposing the motion. Ray, 120 Idaho at 122, 814 P.2d at 19. We note, however, that the existence of disputed facts will not defeat summary judgment when the plaintiff fails to make a showing sufficient to establish the existence of an element essential to its claim, and on which it will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Garzee v. Barkley, 121 Idaho 771, 828 P.2d 334 (Ct.App.1992). Facts in dispute cease to be "material" facts when the plaintiff fails to establish a prima facie case. In such a situation, there can be "no genuine issue of material fact," since the failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. See Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552.

With these standards in mind, we turn to the issues presented by this appeal.

A. Recovery for interference with the marital relationship.

Mary Neal seeks to recover for the respondents' adulterous conduct which she contends is actionable under the tort theories of criminal conversation, invasion of privacy, and interference with contract. Mary recognizes that the Idaho Supreme Court expressly has abolished the spousal right of action for alienation of affections, thereby barring recovery based on the loss of her husband's love, society, companionship and comfort. See O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1987). She argues, however, that O'Neil did not proscribe her right to maintain an action for interference with her exclusive sexual relationship with her husband. She further avers that her right of action for adultery is grounded in I.C. § 32-901, which provides that a spouse has a marital duty of fidelity, and I.C. § 18-6601, which provides a criminal penalty for adultery, and therefore cannot be judicially abolished. We address these issues in turn.

Mary submits that notwithstanding the decision in O'Neil, the tort of criminal conversation, evidently recognized in Idaho in the case of Watkins v. Lord, 31 Idaho 352, 171 P. 1133 (1918), ³ is and should remain a viable cause of action in Idaho. Criminal conversation--adultery in the aspect of a tort--is one of several causes of action available at common law for the intentional interference with the marital relationship. Criminal conversation seeks to protect a spouse's private right to exclusive sexual intercourse and is, in this regard, distinct from the right to conjugal affection, which may or may not involve sexual misconduct. See PROSSER AND KEETON ON TORTS § 124, at 916-19 (5th ed. 1984). Both actions, however, have their genesis in the proposition that one spouse has property rights in the other, a premise that has been condemned by modern courts and authorities as an anachronism. See, e.g., O'Neil, 112 Idaho at 475, 733 P.2d at 696; PROSSER AND KEETON, supra, § 124, at 917.

Although sexual misconduct was not involved in O'Neil, the Court, at least by reference, contemplated the harm occasioned where such behavior is actionable:

The primary purpose in bringing the action is often for the plaintiff to vindicate himself and gain revenge on the other spouse and the defendant. The unplanned nature of the tort, at least where sexual activities are involved, makes the threat of any damage suit unlikely to deter the culpable conduct that has allegedly interfered with the marriage....

The suit also exposes defendants to the extortionate schemes of the plaintiff. Since the suit may well ruin the reputation of the defendant, this often creates an incentive for the plaintiff to bring the suit in hopes of forcing an expensive settlement on the defendant. This is especially true where the suit is related to divorce proceedings and the plaintiff is using the suit vengefully against the defendant and the alienated spouse....

Id., 112 Idaho at 477, 733 P.2d at 698 (emphasis added; citations omitted). Rejecting the purported purpose for the action, which is to discourage third persons from weakening marriages, the Court noted that the initiation of such a lawsuit undermines a marriage by notifying the public of its instability, embarrassing family members and increasing family tension. Id., 112 Idaho at 477, 733 P.2d at 698. The...