Plante v. Engel, 82-420

Decision Date07 December 1983
Docket NumberNo. 82-420,82-420
Citation469 A.2d 1299,124 N.H. 213
Parties, 49 A.L.R.4th 1 Brian S. PLANTE v. John N. ENGEL et al.
CourtNew Hampshire Supreme Court

Perkins, Upshall & Robinson, P.A., Concord (Kenneth L. Robinson, Jr., Concord, on brief, and Frederick E. Upshall, Concord, orally), for plaintiff.

Law Offices of James J. Barry, Jr., P.C., Manchester (James J. Barry, Jr., Manchester, on brief and orally), for defendants.


The plaintiff appeals from an order of the Superior Court (Wyman, J.) granting the defendants' motion to dismiss. The trial court dismissed the plaintiff's writ "on the merits for failure to state a cause of action cognizable under the law of this jurisdiction." The issue is whether a declaration alleging the intentional aiding and abetting in the interference with parental custody is actionable. We hold that such a cause of action is cognizable under the laws of New Hampshire and, therefore, reverse.

"In ruling on a motion to dismiss, all facts properly pleaded by the plaintiff are deemed true, and all reasonable inferences derived therefrom are construed most favorably to the plaintiff." Weld Power Industries, Inc. v. C.S.I. Technologies, Inc., 123 N.H. 121, ---, 467 A.2d 568, 569 (1983).

In the declaration to his writ, the plaintiff alleges that he is the father of two minor children, and that he was awarded permanent custody of these children as part of a decree of the Merrimack County Superior Court divorcing himself and his former wife, Carolyn J. Plante, the children's mother. Following the divorce decree and contrary to its terms, the children's mother moved to Texas with the children without notifying the plaintiff. The defendants, John N. Engel and Elizabeth Engel, are the parents of Carolyn J. Plante and, therefore, the grandparents of the children.

The declaration continues by stating,

"that the defendants were at all times under a duty not to interfere with plaintiff's parental rights or relationship with his children and not to assist Carolyn J. Plante or others in defying a valid and final order of the Merrimack County Superior Court; although having knowledge of said court order, but being wholly unmindful of these duties, the defendants did aid and abet the said Carolyn J. Plante in her efforts to absent herself from the State of New Hampshire with the minor children and move to another location in contravention of the final order of the Court with the intent to deprive the plaintiff of his rightful custody of his minor children...."

The plaintiff alleges that, as a direct and proximate result of the willful and intentional breach of the defendants' duty not to interfere with the plaintiff's parental rights, he suffered various damages. He alleges that he incurred expenses in locating and regaining actual custody of the children; that he was deprived of the comfort, custody, and companionship of his children; that he suffered severe emotional distress; and that he suffered other substantial and consequential damages.

With these allegations, the plaintiff attempts to set out an action for the intentional interference with, and resulting harm to, that bundle of interests which attends a parent's custody of his or her child. See generally Note The Tort of Custodial Interference--Toward a More Complete Remedy to Parental Kidnapping, 1983 U.Ill.L.Rev. 229. The first question for the court is whether such an intentional tort is cognizable in New Hampshire jurisprudence. If such a tort does exist, the next question is whether a person who aids and abets one who commits this tort will also be liable for his or her actions.

The plaintiff argues that recognizing such an action for intentional interference with parental custody is a natural extension of our holding in Sargent v. Mathewson, 38 N.H. 54 (1859). In Sargent, a father brought an action against a man who had harbored his child and encouraged the child to remain away from him. We let stand a jury verdict for the plaintiff father for the loss of his son's services. In so ruling, we observed:

"No question is made that the father, unless he has in some way forfeited or relinquished the right, is entitled to the services and custody of his minor child, and may recover damages against the party who deprives him of this right, by seducing away or harboring the child."

Id. at 57-58; see also Beaudoin v. Beaudoin, 118 N.H. 325, 386 A.2d 1261 (1978).

This common-law action for loss of a child's services is distinguishable from an action for loss of custody. In the former action, compensation is sought for the actual pecuniary losses associated with the deprivation of the child's services, while in the latter, compensation is sought primarily for the emotional losses associated with being deprived of the child's care and comfort. An action for interference with custody resembles, in this respect, an action for loss of a spouse's consortium. See RSA 507:8-a; Guevin v. Railway, 78 N.H. 289, 99 A. 298 (1916). At common law, no such action for the loss of a child's care, comfort and companionship would lie. E.g., Baxter v. Superior Court of Los Angeles Cty., 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871 (1977); Gilbert v. Stanton Brewery Inc., 295 N.Y. 270, 67 N.E.2d 155 (1946); see also W. Prosser, Handbook of the Law of Torts § 125, at 888-90 (4th ed. 1971).

The importance of the parent-child relationship is reflected in its treatment in New Hampshire law. See, e.g., State v. Robert H.--, 118 N.H. 713, 715-16, 393 A.2d 1387, 1388-89 (1978) (holding that parental...

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