Pickering v. Pickering

• Citation: 434 N.W.2d 758,57 USLW 2467
• Decision Date: 30 August 1988
• Docket Number: Nos. 16145,16150,s. 16145
• Parties: Paul S. PICKERING, Plaintiff and Appellant, v. Jody M. PICKERING and Thomas Kimball, Defendants and Appellees. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 758

434 N.W.2d 758

57 USLW 2467

Paul S. PICKERING, Plaintiff and Appellant, v. Jody M. PICKERING and Thomas Kimball, Defendants and Appellees.

Nos. 16145, 16150.

Supreme Court of South Dakota.

Considered on Briefs Aug. 30, 1988.

Decided Jan. 11, 1989.

N. Dean Nasser, Jr., Troy Leonard of Nasser Law Offices, P.C., Sioux Falls, for plaintiff and appellant.

Richard D. Casey of Pruitt, Matthews & Muilenburg, Sioux Falls, for defendants and appellees; Patrick Goetzinger, Legal Intern for Pruitt, Matthews & Muilenburg, Sioux Falls, on brief.

WUEST, Chief Justice.

Paul S. Pickering (Paul), brought an action against his estranged wife, Jody M. Pickering (Jody), and her paramour, Thomas Kimball (Tom). Paul's complaint alleged alienation of affections and tortious interference with a marital contract against Tom, fraud and deceit and negligent misrepresentation against Jody, and intentional infliction of emotional distress against both Jody and Tom. The trial court granted summary judgment in favor of Jody and Tom on all causes of action except the cause of action alleging alienation of affections against Tom. From the order of the trial court, Paul appeals. Tom raises by notice of review that part of the trial court's order denying his motion for summary judgment on the cause of action alleging alienation of affections. We affirm.

Paul and Jody were married on February 14, 1981. Sometime thereafter, Jody became acquainted with Tom at work and the two developed a platonic relationship.

In January, 1984, Jody and Tom travelled together to Tampa, Florida. Jody desired to go to Tampa to visit a friend, but wanted a travelling companion with whom she could share the expenses of the trip. Since Tom previously resided in Tampa, Jody asked him if he would be interested in accompanying her. The two spent very little time together in Florida.

During and after the trip, Tom perceived that Jody was unhappy. He approached this topic with her by asking if she was "ninety-nine percent happy with her life." Jody responded that she wasn't even ninety percent happy and indicated that romance was no longer present in her marriage. Although Jody expressed that she loved Paul, she felt that her affection for him was not as strong as it previously had been.

In late February, 1984, Tom mentioned to Jody that he had written a song about their trip to Florida and invited her to his apartment to hear it. Jody and Tom arranged to go to Tom's apartment after work. After they arrived at the apartment, the two sat on the floor together and began kissing, which ultimately led to sexual intercourse. Thereafter, their sexual liaisons continued for several months until Jody broke off the relationship because of her feelings of guilt.

Tom and Jody subsequently resumed and discontinued their relationship several times. Although Jody usually broke off relations with Tom out of her overwhelming sense of guilt, she always initiated the resumption of their relationship because of her deep affection for Tom and her desire to be with him.

Jody again broke off her relationship with Tom in January, 1985. Shortly thereafter, she discovered that she was pregnant. She was certain that Tom was the father of the child she was carrying because sexual relations between her and Paul had been infrequent. After Jody learned she was pregnant, she seduced Paul and had sexual intercourse with him. Jody wanted Paul to believe he was the child's father. She also desired to avoid hurting Paul and to preserve their marriage. Several weeks later, Jody indicated to Paul that she was experiencing symptoms of pregnancy. A home pregnancy test confirmed these "suspicions." Paul was surprised by the test results, but he was nonetheless pleased by them. In fact, he was so ecstatic about Jody's being pregnant that he "shouted it to the world."

Two months after the advent of her pregnancy, Jody again resumed her sexual relationship with Tom and continued it until two weeks prior to the birth of her daughter. During this time, Tom was under the impression that Jody was pregnant with Paul's child.

Jody gave birth to a daughter on September 15, 1985. She and Tom continued to see each other, but they did not resume their sexual relationship until nearly two months had passed. Although Jody maintained her silence about the child's paternity following its birth, it was during this period of time that Tom noticed a family trait in the baby's toes. He then confronted Jody about the paternity of the child and she admitted that Paul was not the father and that he was.

Upon learning this, Tom insisted that he be responsible for raising the child and that Paul be immediately notified of the child's true paternity. Jody hesitated to tell Paul that he was not the child's father because she did not want to hurt him, but she finally disclosed this fact to him on January 21, 1986. Subsequent paternity testing confirmed that Tom was the father of the child.

Paul and Jody attempted to reconcile their marriage and visited a marriage counselor. This attempt, however, was unsuccessful and Jody and the baby moved into a separate apartment.

On July 29, 1986, Paul commenced a suit for divorce against Jody and the present action against Jody and Tom alleging intentional infliction of emotional distress, fraud and deceit, negligent misrepresentation, tortious interference with a marital contract, and alienation of affections. Motions for summary judgment were submitted by defendants and plaintiff on May 1, 1987, and May 15, 1987, respectively. After a hearing, the trial court granted summary judgment in favor of Jody on all causes of action and in favor of Tom on all causes of action except alienation of affections. Paul's motion for summary judgment was denied. It is from these orders that Paul and Tom now appeal.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 164 (S.D.1987). The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Ruane v. Murray, 380 N.W.2d 362, 364 (S.D.1986). Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper. Weatherwax v. Hiland Potato Chip Co., 372 N.W.2d 118, 120 (S.D.1985); Ruple v. Weinaug, 328 N.W.2d 857, 859-60 (S.D.1983).

We first address the trial court's granting summary judgment in favor of Jody and Tom on the cause of action alleging intentional infliction of emotional distress. We believe the tort of intentional infliction of emotional distress should be unavailable as a matter of public policy when it is predicated on conduct which leads to the dissolution of a marriage. See Richard P. v. Superior Court (Gerald B.), 202 Cal.App.3d 1089, 249 Cal.Rptr. 246 (1 Dist.1988); Haldane v. Bogy, 208 Cal.App.2d 302, 25 Cal.Rptr 392 (2 Dist.1962); Van Meter v. Van Meter, 328 N.W.2d 497 (Iowa 1983) (McCormick, J., dissenting); Hafner v. Hafner, 135 N.J.Super. 328, 343 A.2d 166 (Law Div.1975); Artache v. Goldin, 133 A.D.2d 596, 519 N.Y.S.2d 702 (2 Dept.1987); Baron v. Jeffer, 98 A.D.2d 803, 469 N.Y.S.2d 815 (2 Dept.1983); Weicker v. Weicker, 22 N.Y.2d 8, 290 N.Y.S.2d 732, 237 N.E.2d 876 (1968). Furthermore, the law of this state already provides a remedy for this type of claim in the form of an action against the paramour for alienation of affections.

We next examine Paul's allegation of fraud and deceit against Jody. Paul contends that Jody intentionally kept him "in the dark regarding the illicit affair and the true paternity of the child" and caused him to "profess to his friends, family, and his church" that he was the child's natural father. As a result of these declarations, Paul suffered "untold humiliation, embarrassment, and emotional scarring." ¹

We need not determine whether Paul has established a prima facie case on this tort because we conclude that his action for fraud and deceit also should be barred as a matter of public policy. Although we agree with Paul that his allegations normally would suffice to state a cause of action for fraud, ² we believe the subject matter of this action is not one in which it is appropriate for the courts to intervene.

The exact issue that now confronts us was addressed by the California Court of Appeal in Richard P. v. Superior Court (Gerald B.), 202 Cal.App.3d 1089, 249 Cal.Rptr. 246 (1 Dist.1988). The court barred the action on the basis of public policy, stating:

Broadly speaking, the word "tort," means a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages. It does not lie within the power of any judicial system, however, to remedy all human wrongs. There are many wrongs which in themselves are flagrant. For instance, such wrongs as betrayal, brutal words, and heartless disregard of feelings of others are beyond any effective legal remedy and any practical administration of the law. To attempt to correct such wrongs or give relief from their effects "may do more damage than if the law leaves them alone."

Id. 249 Cal.Rptr. at 249 (quoting Stephen K. v. Roni L., 105 Cal.App.3d 640, 642-43, 164 Cal.Rptr. 618, 619 (2 Dist.1980)) (citations omitted). The court continued:

We conclude here that any wrong which has occurred as a result of [the defendant's] actions is not one that can be redressed in a tort action. We do not doubt that...