Villasenor v. Villasenor

• Decision Date: 16 August 1995
• Docket Number: No. 04-95-00007-CV,04-95-00007-CV
• Citation: 911 S.W.2d 411
• Parties: Hector VILLASENOR, Appellant/Appellee, v. Teresa VILLASENOR, Appellee/Appellant.
• Court: Texas Court of Appeals

Page 411

911 S.W.2d 411

Hector VILLASENOR, Appellant/Appellee, v. Teresa VILLASENOR, Appellee/Appellant.

No. 04-95-00007-CV.

Court of Appeals of Texas San Antonio.

Aug. 16, 1995.

Rehearing Overruled Sept. 8, 1995.

Sam C. Bashara, Law Offices of Sam C. Bashara, P.C., San Antonio, for appellant.

Martha Fitzwater, Austin, for appellee.

Appeal from the 166th District Court of Bexar County, Trial Court No. 91-CI-14546, David Berchelmann, Jr., Judge Presiding ¹.

Before CHAPA, C.J., and RICKHOFF and STONE, JJ.

OPINION

RICKHOFF, Justice.

This appeal joins post-divorce torts with counter-motions in a suit seeking to modify the parent-child relationship. In eleven points of error, Teresa Villasenor challenges the sufficiency of the evidence supporting the findings of intentional infliction of emotional distress, slander, residency of the children, and attorney's fees. In nine cross points, Hector Villasenor challenges the child support award. We affirm in part and reverse in part.

Procedural Summary

Teresa and Hector, the parents of two sons and a daughter, were divorced on April 16, 1992. On February 18, 1994, Teresa sought modification of the support, visitation, and domicile provisions of the divorce decree. Hector counterclaimed for modification and additionally alleged slander and intentional infliction of emotional distress.

The court designated Bexar County as the residence of the children; ordered Hector to pay $4,000 per month in child support; adjudged $10,000 against Teresa for slander and $30,000 for intentional infliction of emotional distress; and ordered Teresa to pay Hector's attorney's fees. The court did not order Teresa to pay child support for Elena, the eldest child who remained in Hector's custody.

Hector's Tort Claims

Teresa's first six points of error address the sufficiency of the evidence supporting the trial court's findings on Hector's tort claims of intentional infliction of emotional distress and slander.

1. Standard of Review

In reviewing a challenge to the legal sufficiency of the evidence, we consider only the evidence and inferences that tend to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Behringer v. Behringer, 884 S.W.2d 839, 841 (Tex.App.--Fort Worth 1994, writ denied). If there is more than a scintilla of evidence to support the finding, the no evidence point of error must be overruled. LaCoure v. LaCoure, 820 S.W.2d 228, 232 (Tex.App.--El Paso 1991, writ denied).

In reviewing a challenge to the factual sufficiency of the evidence, we consider and weigh all the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 232-33. The appellate court cannot substitute its opinion for that of the trier of fact and determine that it would reach a different conclusion. Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex.App.--Houston [1st Dist.] 1988, writ denied).

2. Intentional Infliction of Emotional Distress

In her first through third points of error, Teresa contends there is legally and factually insufficient evidence to support the trial court's finding of intentional infliction of emotional distress and its corresponding damage award. In its findings of fact, the court found that Teresa had recklessly and intentionally engaged in a pattern of conduct that caused Hector severe emotional distress. The court also found that Hector's damages were $30,000.

To prove intentional infliction of emotional distress, the plaintiff must demonstrate: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional stress; and (4) the plaintiff's emotional stress was severe or extreme. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993); Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 942 (Tex.App.--Beaumont 1985, writ ref'd n.r.e.) (adopting RESTATEMENT (SECOND) OF TORTS § 46 (1965)). Teresa specifically challenges the second and fourth elements: whether her conduct was extreme and outrageous and whether Hector suffered severe or extreme emotional distress. Because we find the issue of distress dispositive, we do not address the outrageousness of Teresa's conduct. ²

a. Factual Background

The evidence supports the following incidents relied upon by Hector to prove intentional infliction of emotional distress:

1. Teresa, while on the phone with her then nine-year-old son Carlos, suggested he ask Hector's wife Tammy about Daniel Prado and Nicole Prado, Tammy's former husband and deceased daughter.

2. Teresa left a message on the answering machine of Tammy's sixteen-year-old daughter claiming that Hector had admitted several affairs with other women and had placed Tammy at risk of contracting acquired immunodeficiency syndrome (AIDS). ³

3. Teresa denied Hector's court-ordered possession of Carlos on his eighth birthday. ⁴

4. Teresa faxed a letter to Hector informing him that Carlos could not have a birthday party because Hector had insisted upon his court-ordered birthday visitation.

5. Teresa denied Hector access to his children on September 8, 1993.

6. Teresa blocked Hector's vehicle in her driveway and scratched it with her keys.

7. Teresa placed over 100 harassing phone calls to Hector's home after the divorce, including hang-up calls.

8. Teresa put the three children in the middle of disputes.

9. Teresa would "bad-mouth" Hector to the children.

10. Teresa taunted Hector with threats of taking his children to another city.

11. Teresa confronted Tammy and the children at Fiesta Texas, called Tammy a "bitch" and accused the children of stealing their park passes.

12. Teresa refused to let the children play sports.

13. Teresa called the children at Hector's house during his visitation with the children.

14. Teresa did not allow the children to go to the Alamodome with Hector on August 7, 1993.

To this list Teresa's brief adds several incidents:

1. Teresa faxed two messages to Hector (a) about his tardy return of the children after his visitation; and (b) that only Tammy had to worry about where he is sleeping.

2. Teresa failed to immediately give Hector the children's ski clothes he requested.

3. Teresa did not disclose the location of the children's savings bonds.

4. Teresa gave Hector only a few days' notice of his son's first communion.

b. Analysis

The tort of intentional infliction of emotional distress requires there be sufficient proof of severe emotional distress, in addition to any outrageous conduct on the defendant's part. Walters, 699 S.W.2d at 944. As evidence of his emotional distress, Hector refers to his statements that he loves his sons and daughter; they hunt, fish, and attend football games; and he helps with homework and coaches their teams. He said it "hurt" when Teresa put the children "in the middle of every situation."

He complained that "when I don't see my kids for a period of a week, it hurts." About the incident when Teresa scratched his car, Hector said, "It emotionally upsets me and hurts to have my child there seeing everything." When Teresa directed Carlos to ask Tammy about her former husband and deceased daughter, Hector felt "hurt" and "angry" because Tammy cried. About the ski clothes incident, Hector said, "It hurts me seeing my kids hurt and crying that they don't have clothes to go skiing. When I know, I paid for them myself." Hector testified that he cried after certain incidents; for example, when he was denied visitation on Carlos' eighth birthday.

Emotional distress includes all highly unpleasant mental reactions, such as fright, humiliation, embarrassment, anger, and worry. Behringer, 884 S.W.2d at 844. To be recoverable, the distress must be so severe that no reasonable person should be expected to endure it. Washington v. Knight, 887 S.W.2d 211, 216 (Tex.App.--Texarkana 1994, writ denied); Behringer, 884 S.W.2d at 844 (citing RESTATEMENT (SECOND) OF TORTS § 46, cmt. j (1965)). The plaintiff must prove that he suffered more than mere worry, anxiety, vexation, embarrassment, or anger. Regan v. Lee, 879 S.W.2d 133, 136 (Tex.App.--Houston [14th Dist.] 1994, no writ).

Emotional distress was severe in Behringer, where the plaintiff feared for his life, slept with a pistol, cried in public, and lost his appetite. 884 S.W.2d at 844-45. Similarly, in Motsenbocker v. Potts, 863 S.W.2d 126, 135 (Tex.App.--Dallas 1993, no writ), the plaintiff was so disturbed, uncomfortable, worried, and frightened that he considered suicide. In Walters, the plaintiff refused to speak or see anyone, became ill and disoriented, and experienced extreme anger. 699 S.W.2d at 945. In contrast, feelings of anger, depression, and humiliation (even when embarrassed in front of children), are insufficient evidence of severe distress, especially when suit is brought to punish the defendant. Regan, 879 S.W.2d at 136-37.

In this case, there is no evidence that Hector experienced nauseousness, loss of appetite, sleeplessness, depression, fear, or rage. Hector did not testify that his "hurt" interrupted his work or social interests. There is no evidence that Hector consulted professional help or suffered a pecuniary loss as a result of Teresa's actions. Furthermore, Hector cannot recover for the pain suffered by his children, his wife, or other third parties. See Cavanaugh v. Jones, 863 S.W.2d 551, 557 (Tex.App.--Austin 1993, writ denied) (limiting bystander recovery); RESTATEMENT (SECOND) OF TORTS § 46, cmt. l (1965) (limiting third party recovery for intentional infliction of emotional distress). While we recognize that proof of physical injury is not required in order to recover for emotional distress, St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 654 (Tex.1987), we conclude that Hector offered no evidence of the severity of his pain nor did he demonstrate how the distress was unendurable. Thus, Hector did not prove the...