Stone v. Wall

• Decision Date: 17 June 1999
• Docket Number: No. 92,499.,92,499.
• Citation: 734 So.2d 1038
• Parties: Walter L. STONE, etc., Appellant, v. Georgene WALL, et al., Appellees.
• Court: Florida Supreme Court

734 So.2d 1038

Walter L. STONE, etc., Appellant, v. Georgene WALL, et al., Appellees.

No. 92,499.

Supreme Court of Florida.

June 17, 1999.

Nathan D. Clark of Coral Reef Law Offices, P.A., Pinecrest, Florida, for Appellant.

Stephen Marc Slepin of Slepin & Slepin, Tallahassee, Florida, and Robert P. Frankel of Lapidus & Frankel, P.A., Miami, Florida, for Appellees.

PARIENTE, J.

This matter is before the Court for consideration of the following question certified by the United States Court of Appeals for the Eleventh Circuit:

WHETHER A CAUSE OF ACTION EXISTS FOR INTERFERENCE WITH THE PARENT/CHILD RELATIONSHIP WHERE A THIRD PARTY (THAT IS, A NONPARENT WHO HAS NO CUSTODY RIGHTS OVER THAT CHILD) INTENTIONALLY ABDUCTS A MINOR CHILD FROM A PARENT LEGALLY ENTITLED TO THE CHILD'S CUSTODY.

Stone v. Wall, 135 F.3d 1438, 1443 (11th Cir.1998). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. We answer the question, as narrowly framed, in the affirmative.

BACKGROUND

Appellant, Walter Stone, is the parent and natural guardian of S.P.S., his minor child. Stone filed this diversity action in federal district court on his behalf and on the behalf of S.P.S. for interference with a custodial parent-child relationship and abduction by a third party. The appellees are Georgeanne Wall, S.P.S.'s maternal grandmother; Gina Wall Masterson, S.P.S.'s maternal aunt; and Brock Green, attorney for Wall and Masterson.¹

The narrow issue we confront is whether Florida should recognize a common law cause of action for intentional interference with a custodial parent-child relationship or abduction of a child by a third party who has no custody rights over the child. Because this case comes to us on a motion to dismiss, we must accept the well-pleaded factual allegations of the complaint as true. See Londono v. Turkey Creek, Inc., 609 So.2d 14, 18-19 (Fla.1992).

According to the allegations in Stone's first amended complaint, Wall, Masterson and Green conspired to interfere with Stone's right of custody of his minor child. Stone and Gwen Lindgren, the parents of S.P.S., were formerly married. After Stone and Lindgren divorced, Stone exercised "parental responsibility and custody rights." The pertinent additional factual allegations are set forth in the Eleventh Circuit's opinion:

In 1987 Stone and Lindgren were divorced in Virginia. In 1994, Stone exercised his visitation rights with S.P.S. at his home in Mississippi. Stone says that he then was informed by his ex-wife, Lindgren, that she had been diagnosed with brain cancer and was not expected to live more than six months. At Lindgren's request, Stone allowed the child to return to Virginia and to stay with Lindgren, for Lindgren's final days. Plaintiffs further allege that, when Stone returned with S.P.S. to Virginia, Wall asked about Stone's plans for the custody of S.P.S. upon the death of Lindgren. Wall said that she desired that custody of the child be given to Masterson. Stone informed Wall that he would take full custody of S.P.S. and live in Mississippi.

Plaintiffs allege that Defendants Green, Wall, and Masterson acted with intent to interfere with Stone's custody of S.P.S. In addition, Defendants conspired, in Florida, to remove S.P.S. from Virginia to Colorado without the consent of Stone, who was the parent and natural guardian of S.P.S. According to the Complaint, Defendants (1) removed the child from Virginia before the death of her mother; (2) refused to respond to Stone's inquiries about the whereabouts of his child; (3) executed a guardianship/entrustment agreement without the knowledge and consent of Stone[²]; (4) concealed the guardianship agreement from Stone; (5) continued to conceal the child, who Stone located only by his own efforts; and (6) refused to return the child to Stone despite repeated requests and despite Stone's status as the natural guardian legally entitled to custody of the child.

Stone, 135 F.3d at 1440.

In order to locate his child, Stone hired attorneys in both Virginia and Colorado and incurred "travel costs, investigative costs and other costs" associated with locating and returning S.P.S. to his custody. After locating his child in Colorado, Stone took physical custody of her with the knowledge and consent of the Federal Bureau of Investigation, the Commonwealth Attorney in Virginia, and the Cherry Hills, Colorado, Police Department. See id. at 1440 n. 1.

The federal district court dismissed Stone's complaint, concluding that Stone failed to state a claim upon which relief could be granted and that even if a claim had been stated, the family law nature of the case warranted abstention. See id. at 1440. The Eleventh Circuit reversed the district court, finding that abstention was not warranted because the complaint was for the recovery of money damages arising from an alleged tort. See id. at 1441. The Eleventh Circuit also concluded that Florida law was applicable.³See id. However, because there was no precedent from this Court to assist in determining whether a cause of action exists for Stone's claims, the Eleventh Circuit certified the question on review as requiring resolution by this Court. See Stone, 135 F.3d at 1443.

ANALYSIS OF THE PROPOSED CAUSE OF ACTION

A cause of action for interference with a custodial parent-child relationship has its roots in English common law, descended from a writ giving the father an action for the abduction of his heir. See Pickle v. Page, 252 N.Y. 474, 169 N.E. 650, 651 (1930); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 124, at 924 (5th ed.1984); see also Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 571 N.E.2d 340, 351 (1991). The writ was based in trespass, and the father's property interest in his heir was the legal theory supporting the writ. See Pickle, 169 N.E. at 651 (citing Barham v. Dennis, 78 Eng. Rep. 1001 (K.B.1600)); Keeton, supra § 124, at 924. The claim was eventually extended to the abduction of any child for whom the father could show lost services. See Pickle, 169 N.E. at 651; Keeton, supra § 124, at 924. With few exceptions, the mother could not bring the action because the mother had no property rights in the child. See Keeton, supra § 124, at 924.

Since at least the mid-1800's, American courts have allowed parents to sue child kidnappers. See Rice v. Nickerson, 91 Mass. (9 Allen) 478 (1864); Magee v. Holland, 27 N.J.L. 86, 88 (N.J.Sup.Ct.1858); Clark v. Bayer, 32 Ohio St. 299, 301 (1877). By the turn of this century, American courts had discarded, as an "outworn fiction," the requirement of loss of services as the foundation for the tort. Howell v. Howell, 162 N.C. 283, 78 S.E. 222, 224 (1913). As the Pickle court observed,

[i]t would be a reproach to our legal system if, for the abduction of a child in arms, no remedy ran to its parent, although `for a parrot, a popinjay, a thrush' and even `for a dog' an ample remedy is furnished to their custodian for the loss of their possession.

Pickle, 169 N.E. at 653 (quoting Barham, 78 Eng. Rep. at 1001, which refused to recognize a cause of action for abduction of a child other than an heir because the father had no "property or interest" in his non-heirs).

Most often referred to as "interference with child custody"⁴ or "intentional abduction of a child" or by some other version of such terms,⁵ this cause of action has been the subject of recent scholarly discussion. However, as early as 1938, the tort was included in the American Law Institute's first Restatement of Torts. See Restatement of Torts, § 700 (1938). The most recent version, Restatement of Torts (Second) § 700 (1977), provides the common law cause of action with its contemporary definition:

One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.

In its twentieth-century form, the action may be brought by either parent, and loss of services is no longer always a predicate to recovery. See, e.g., Pickle, 169 N.E. at 652-53; Keeton, supra, § 124. This more modern view recognizes that the tort serves to protect the parent-child relationship. See Keeton, supra, § 124, at 924-25.

The elements of the cause of action include that the plaintiff had superior custody rights to the child and that the defendant intentionally interfered with those rights. See Restatement (Second) of Torts, § 700 cmt. c. The Supreme Court of West Virginia recently elaborated on the elements by holding that a prima facie case for tortious interference requires a showing that:

(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent's consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party's intentional interference caused harm to the complaining parent's parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720, 765-66 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999). Similarly, the Alabama Supreme Court has held that:

To state a claim of intentional or malicious custodial interference, a plaintiff need only plead facts tending to show:

"(1) [S]ome active or affirmative effort by [the] defendant to detract the child from the parent's custody or service, (2) [that] the enticing or harboring [was] willful, [and] (3) [that the enticing or harboring was done] with notice or knowledge that the child had

...