Raftery v. Scott
| Citation | 756 F.2d 335 |
| Decision Date | 07 March 1985 |
| Docket Number | No. 84-1052,84-1052 |
| Parties | William E. RAFTERY, Sr., Appellee, v. Katheryn Girvin SCOTT, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
William M. Kunstler, New York City (Kunstler & Mason, New York City, on brief), for appellant.
Sa'ad El-Amin, Richmond, Va. (Sa'ad El-Amin & Associates, Richmond, Va., on brief), for appellee.
Before HALL and MURNAGHAN, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.
In a diversity case brought by a New York citizen, William E. Raftery, Sr., against a Virginia citizen, Katheryn Girvin Scott, a jury in the United States District Court for the Eastern District of Virginia returned a verdict against the defendant of $40,000 in compensatory damages and $10,000 in punitive damages.
The plaintiff and defendant had formerly been married to one another. During their seven year marriage one child, William E Raftery, Jr., was born on July 4, 1974. In May 1977, while a divorce decree was pending, Scott, the former wife, left the state of New York with the child. The divorce decree, promulgated on June 6, 1977, one month later awarded custody of the son to Scott. Raftery testified during the trial below that he had been unable to establish Scott's whereabouts until December 1981 when he learned that she had remarried and taken up residence in Henrico County, Virginia. According to Raftery's testimony, he had engaged in efforts to learn Scott's whereabouts because of his desire to foster a parent/child relationship with his son, who was nearly seven years old in late 1981.
In February 1982 Raftery sued in the Circuit Court of Henrico County to enforce visitation provisions of the New York divorce decree. In her answer to the complaint, Scott opposed visitation rights in Raftery, claiming that it would be negative for the child to see him after the long separation. According to evidence which, at this stage of the proceedings, following a verdict for the plaintiff, we must construe in a manner most favorable to the plaintiff, the former wife succeeded in persuading the son that he should not see his father. A clinician at the Henrico County Mental Health Center, to whom the matter had been referred by the Henrico County court after a hearing on October 12, 1982 so that the best interests of the child might be ascertained, concluded, following three meetings with the child, that she was "unable to introduce any positive ideas about his father or visitation in a way that the child could accept due to the overwhelming amount of negative material he has heard about father and visitation."
In February, May, June and July 1983, there followed attempts at structured visits between the father and the son. There then ensued a court hearing in August 1983 growing out of an altercation between Raftery and Albert Scott, the defendant's new husband. At the court hearing, the son refused to speak to his father either in court or after the hearing had concluded.
There was testimony from a psychologist who treated Raftery that he suffered from "reactive depression" triggered by the mother's "conduct toward the son and his relationship with [the son]."
Following the August 1983 hearing, the Henrico County court ordered a reevaluation by the Mental Health Clinic. On September 13, 1983 the clinical director recommended that Raftery "no longer have visitation because of the emotional impact it has on the child."
Subsequently, in December 1983, the state court decided to issue an order permitting structured visitation, with both Raftery and Scott seeking psychiatric evaluations. Those decisions taken in December 1983 have not been effectuated, however, because of the imminence of trial in the present action, in which Raftery sought damages for intentional infliction of mental distress. The case had been commenced by Raftery on February 23, 1983 and was tried to a jury on January 3 through January 5, 1984. There was evidence clearly sufficient to establish that the former wife had engaged in a continuing and successful effort to destroy and to prevent rehabilitation of the relationship between the former husband and their son. The appeal concentrates on two claims, neither asserting that error occurred during the course of the trial, each, rather, disputing the propriety of the case's having come to trial in the first place.
First, it is contended that the domestic relations exception should apply to defeat entirely federal diversity jurisdiction. However, the domestic relationship between the parties largely terminated with the 1977 divorce, and the suit concerns not the establishment and implementation of visitation rights but, rather, seeks an award of damages precisely because of acts by the former wife to frustrate whatever domestic relations aspects remained of her relationship with her former husband. If someone who had never been married to Raftery, a family member such as an aunt, a cousin or a grandparent or even a nonrelative such as a child nurse or babysitter had set about destroying the relationship between the father and his son, any cause of action arising out of such behavior would not be foreclosed from a hearing in federal court because it partook of some intra-family aspects. As held in Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir.1980):
A district court may not simply avoid all diversity cases having intrafamily aspects. Rather it must consider the exact nature of the rights asserted or of the breaches alleged. 1
In Wasserman v. Wasserman, 671 F.2d 832, 834-35 (4th Cir.1982), we held:
[H]owever, the torts of child enticement and intentional infliction of emotional distress are in no way dependent on a present or prior family relationship.... Most importantly, appellant is not seeking a determination of entitlement to custody or any other adjustment of family status....
A decision by a federal court not requiring the adjustment of family status or establishing familial duties or determining the existence of a breach of such duties, does not contravene the domestic relations exception to federal diversity jurisdiction. Kelser v. Anne Arundel County Dept. of Social Services, 679 F.2d 1092 (4th Cir.1982) ().
Consequently, jurisdiction is not lacking. 2 We, therefore, proceed to the second issue presented by Scott. The claim is made that the assertions by Raftery and the proof at trial really demonstrate only "alienation of the affection" of the child for the parent. In attempting to develop the asserted defense, Scott argues that, even as the rose, alienation of affection by any other name is still the same. Use of other descriptive language for the tort involved such as "intentional infliction of emotional distress" or "wanton, malicious and willful conduct depriv[ing] Raftery of the companionship and care of the couple's minor son" should not, she claims, permit escape from the provisions of the Virginia statute. Ann.Code of Virginia Sec. 8.01-220 (1981). The statute has eliminated the causes of action arising on or after June 28, 1968 for a) alienation of affection, b) breach of promise to marry, or c) criminal conversation. By subsequent addition, the code provision abrogates the civil action for seduction for events arising on or after July 1, 1974. Both parties accepted, for purposes of the case, that alienation of affection could not be a basis of recovery. 3
However, Raftery took the position that the facts independently supported a claim for intentional infliction of emotional distress, and we are persuaded that he is correct. 4 The fact that a tort may have overtones of affection alienation does not bar recovery on the separate and distinct accompanying wrongdoing. For example, one might owe a substantial sum of money to a long-time friend. If a third party were to abscond with the money to pay the debt, preventing satisfaction of the obligation, while the friend's affection could well be alienated, that fact would not constitute a bar to recovery of the stolen funds from the malefactor.
To put things somewhat differently there might in the instant case have been no diminution in the son's affection for the father. Yet, realizing that the father was not in a position to provide him a home, and appreciating that custody had been awarded to the mother, the son might have concluded that his best interests dictated a display by him of an assumed indifference towards, even dislike for, his father to make life more tolerable at home. The unwarranted breach in the physical relationship and its resulting adverse impact on the father would have entitled Raftery to some damages, even if the affection of his son for him remained unabated. 5
Without, in any way, suggesting that an action by the son could be maintained against the mother for the adverse consequences of the rupture she occasioned between father and son, 6 still it seems clear that, absent a bar for some reason, altogether independent of the alienation of affection contention, a cause of action should lie for psychological damage flowing from the enforced separation from the father, even, or, indeed, especially if the affection of the father had in no way abated, an entirely plausible possibility. Thus, if such an action were indeed not maintainable, the reason would in no way be the supposed similarity of the claim to one for alienation of affection.
Finally, Scott asserts a public policy argument that a child will suffer from psychological adversities if he is cast in the role of a pawn in a battle inspired by greed for filthy lucre of one of the parents. She urges that we not permit resuscitation of...
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