Pyle v. Pyle

• Decision Date: 19 September 1983
• Citation: 11 O.B.R. 63,463 N.E.2d 98,11 Ohio App.3d 31
• Court: Ohio Court of Appeals
• Parties: , 11 O.B.R. 63 PYLE, Appellee, v. PYLE, Appellant. (Two Cases.)

Page 31

11 Ohio App.3d 31

463 N.E.2d 98, 11 O.B.R. 63

PYLE, Appellee, v. PYLE, Appellant. (Two Cases.)

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 19, 1983.

Syllabus by the Court

1. A cause of action may be stated for the intentional infliction of serious emotional stress without a contemporaneous physical injury.

2. In order to recover damages for the intentional infliction of serious emotional distress four elements must be proved: a) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; b) that the actor's conduct was extreme and outrageous, that it went beyond all possible bounds of decency and that it can be considered as utterly intolerable in a civilized community; c) that the actor's actions were the proximate cause of the plaintiff's psychic injury; and d) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable person could be expected to endure it.

William T. Wuliger, Cleveland, for Ralph E. Pyle.

Joyce Barrett, Cleveland, for Mary Joan Pyle.

PARRINO, Judge.

The instant cause is a consolidation of appeals from two lower court orders: case No. 45726 is an appeal by Mary Joan Pyle from an award of tort damages to Ralph Pyle on an action for intentional infliction of emotional stress rendered July 23, 1982 by Judge Richard McMonagle of the General Division of the Court of Common Pleas of Cuyahoga County; case No. 45831 is an appeal by Ralph Pyle from the August 12, 1982 entry of Judge Herbert Whiting of the domestic relations division denying Ralph Pyle's motion for change of custody.

The parties to this appeal were married in 1969; a decree of dissolution was entered November 1, 1978 which incorporated a separation agreement giving Mary Joan Pyle custody of the two minor children, James and Joseph. Ralph Pyle was to pay $50 per week per child as child support and was to have reasonable visitation. The agreement also stated that neither party would remove the children from the state of Ohio without approval of the other or a court order. At the time of the dissolution, Mary Joan Pyle lived in Brunswick, Ohio, with the children. The agreement also stated that neither party would interfere with the other's life.

In May 1979 Mary Joan Pyle moved to Columbus with the children. The move made visitation between Ralph Pyle and the children less convenient than when the children lived in Brunswick. At some point Ralph Pyle began deducting money from his child support payments to cover his visitation expenses of driving to Columbus. In September 1980 Mary Joan Pyle filed a motion to show cause claiming that Ralph Pyle was $604 in arrears. In November 1980 Ralph Pyle stopped paying child support.

Before the motion to show cause was heard Ralph Pyle filed a motion for change of custody (December 3, 1980) and a motion to modify support (January 30 1981). An interim order was rendered by Judge Whiting August 3, 1981 whereby Ralph Pyle was ordered to pay $35 a week per child for support and $200 on the arrearages. He was also to have the children from August 8 until August 27. In December 1981 Ralph Pyle filed a motion to show cause stating that Mary Joan Pyle had denied all visitation since August 1981.

Meanwhile, on April 7, 1981 Ralph Pyle filed a complaint sounding in tort against Mary Joan Pyle. The complaint alleged intentional infliction of emotional distress. On February 12, 1982 an amended complaint was filed which added allegations of defamation by slander and invasion of privacy. Neither of the two added claims was pursued at trial.

In April 1982 a hearing on the pending domestic relations motions was heard by a referee and a referee's report including findings of fact and conclusions of law was filed. The referee recommended that both parties be found in contempt with sentences suspended if court orders were followed. The referee further recommended that Ralph Pyle's motion to change custody be denied, child support remain at $35 per week per child plus $5 a week on the arrearage and a definite visitation schedule be set with Ralph Pyle to pay the cost of transporting the children to visitation and Mary Joan Pyle absorbing the cost of transporting them back home. Ralph Pyle filed objections to the report which were overruled. Judge Whiting adopted the referee's report and judgment was entered August 12, 1982.

The trial on Ralph Pyle's tort complaint proceeded before Judge McMonagle in July 1982. Following his presentation, counsel for Mary Joan Pyle moved for dismissal which motion was overruled. Final judgment was entered for Ralph Pyle finding Mary Joan Pyle liable for intentional infliction of extreme emotional distress and awarding $150 compensatory damages, $2,500 punitive damages and $1,000 attorney fees.

Ralph Pyle filed a timely notice of appeal from Judge Whiting's order and Mary Joan Pyle filed timely notice of appeal from Judge McMonagle's order. The appeals were consolidated upon motion by Mary Joan Pyle.

I

The issue raised by Mary Joan Pyle, appellant in case No. 45726 (hereinafter "defendant"), is whether her former husband properly stated and proved an action for intentional tort against her without the occurrence of a contemporaneous physical injury which allegedly resulted in severe emotional distress to him. The events in question arose from a custody and visitation dispute between the parties.

At trial the plaintiff Ralph Pyle (hereinafter "plaintiff") based his case on the conduct of his ex-wife, defendant Mary Joan Pyle, regarding visitation. A number of incidents were asserted, but the focus was on the defendant's move to Columbus with the children without prior notice, her oft-repeated refusal to allow plaintiff visitation and a "peanut" incident during Christmas visitation of 1980. The Christmas incident involved a gift of peanuts from the youngest son to the plaintiff. Plaintiff has diverticulitis, a condition which prohibits him from eating certain foods, such as peanuts; the ingestion of such foods can cause severe pain and illness. Defendant was aware of plaintiff's condition, but neither of the children was.

When the boys came for their Christmas season visit with plaintiff in 1980, the youngest brought a gift-wrapped package of peanuts. Before the present was opened the boy was sitting on plaintiff's lap asking questions, one of which was to the effect of "Do you like peanuts?" Plaintiff responded that he could not eat peanuts. Plaintiff testified that the boy then jumped off his lap and ran into the other room crying hysterically. When plaintiff tried to calm the child, he discovered that the child had brought him peanuts as his Christmas present. Plaintiff testified that he was so upset by this incident that he suffered headaches, stomach aches and had trouble sleeping. He did not eat any peanuts but was distressed by his son's reaction. Defendant knew about the peanuts, but did not mention them to plaintiff before the visit.

The court entered judgment in favor of plaintiff and specifically declared that defendant's actions were "intentional, deliberate, wanton and reckless and that it was done with malice and intent to injure and harm the Plaintiff, Mr. Pyle." The court also stated that:

"The Plaintiff, in his Complaint, has alleged that the Defendant's actions have directly and proximately caused him severe emotional and mental distress, stomach upset and nausia [sic ], headaches, nervousness, loss of sleep, and other related physical and psychological injury and damage. Plaintiff has proved said allegations to this Court."

Defendant has raised six assignments of error for our review which are addressed in order.

"1. The trial court erred in overruling appellant's [defendant's] motion to dismiss for lack of jurisdiction over the subject matter."

Defendant argues that the general division of the court of common pleas was without jurisdiction to hear the complaint filed by plaintiff as proceedings were pending in the domestic relations division involving the very same fact situation. Her argument is that plaintiff had chosen his remedy, i.e., a motion for change of custody and to modify support, and that he was thereby precluded from relitigating the facts in a tort case.

We find this position not supported by the facts of this case. Plaintiff's amended complaint stated three causes of action for intentional torts: intentional infliction of emotional distress, defamation by slander and invasion of privacy. These allegations, if proved, are properly within the purview of the general division of the court of common pleas rather than the domestic relations division. See R.C. 3105.011.

The complaint was sufficient to invoke the jurisdiction of the general division of the trial court and the court properly overruled defendant's motion to dismiss. The first assignment of error is overruled.

"2. The trial court erred in overruling appellant's [defendant's] motion to dismiss following the appellee's [plaintiff's] opening statement."

At the close of plaintiff's opening statement defendant again moved to dismiss claiming that the opening statement failed to indicate facts which if proved would support his claims. The opening statement did not refer at all to the second and third causes of action, defamation and invasion of privacy, and it may be assumed these causes were abandoned. On appeal defendant argues that this failure to mention anything in support of these two causes of action requires dismissal. However, plaintiff did raise allegations, which if proved, could support an action for intentional infliction of emotional distress. Therefore, the trial court acted properly in overruling defendant's second motion to dismiss.

"3. The trial court erred in overruling appellant's [defendant's] motion for a directed verdict at the conclusion of appellee's [plaintiff's] case in...