Wolf v. Wolf

• Decision Date: 07 January 2005
• Docket Number: No. 02-1292.,02-1292.
• Citation: 690 N.W.2d 887
• Parties: Timothy Lee WOLF, Appellee, v. Joan Lynn WOLF, Appellant.
• Court: Iowa Supreme Court

690 N.W.2d 887

Timothy Lee WOLF, Appellee, v. Joan Lynn WOLF, Appellant.

No. 02-1292.

Supreme Court of Iowa.

January 7, 2005.

G. Brian Weiler, Davenport, for appellant.

Arthur L. Buzzell, Davenport, for appellee.

LARSON, Justice.

The Scott County District Court, in reliance on Wood v. Wood, 338 N.W.2d 123 (Iowa 1983), awarded this plaintiff-father actual and punitive damages for the defendant's tortious interference with the plaintiff's custody ¹ rights in the parties' daughter, Ashley. We affirm in part, reverse in part, and remand.

I. Facts and Prior Proceedings.

Timothy Wolf and his former wife, Joan, have been embroiled in a bitter tug-of-war in Arizona and Iowa courts over the physical care of Ashley. Ashley, born in 1985, is now an adult, but the battle continues. The parties divorced in 1990, and the court awarded sole legal custody and primary physical care to Joan. In 1993 the court modified the decree by granting the parties joint legal custody and primary physical care to Timothy. In 1998 the district court modified the decree, retaining joint legal custody but granting primary physical care to Joan. Timothy appealed, and the court of appeals reversed, reaffirming physical care in Timothy. By this time, Ashley had moved to Arizona with Joan, and Joan petitioned an Arizona court to award her primary care. The Arizona court refused.

In August 2000, eleven months after the court of appeals ordered that physical care be returned to Timothy, Ashley was still not returned to Iowa. Timothy obtained a writ of habeas corpus in Iowa and went to Arizona to retrieve Ashley. He brought her back to Iowa, and she lived with him for approximately a month and a half. However, on October 8, 2000, when Ashley was fifteen, she left Timothy's home and flew to Arizona. On November 8, 2000, Joan petitioned an Arizona court to award her temporary physical custody, but the Arizona court refused, ruling that Iowa retained jurisdiction.

On November 14, 2000, Joan filed a petition in Iowa to modify the decree, and she and Ashley came to Iowa to testify. During that trial, the court, concerned that Joan might flee the jurisdiction with Ashley, stated:

I will issue an order that all parties are to remain in the State of Iowa, and will be personally present for the remainder of these proceedings.

During the modification proceedings, the court entered a show-cause order in connection with Joan's failure to abide by the earlier court order to return Ashley to Iowa. The court set the show-cause hearing for three days later. This colloquy followed:

THE COURT: I would like the record to reflect that the [show-cause] order is being handed through counsel to the Respondent, and also I wish to state on the record that the Respondent understands that it is further an order — an interim order of the Court that the Respondent shall remain in the State of Iowa pending the hearing on the contempt action.

Do you understand that, Ms. Wolf?

MS. WOLF: Yes, I do.

THE COURT: Do I have your word that you will remain here in the State of Iowa until this matter is heard?

MS. WOLF: Yes.

Joan did not stay in Iowa as promised, but immediately left for Arizona with Ashley. In an order of December 27, 2000, the district court denied Joan's modification petition and confirmed Timothy's right to custody.

In May 2002 Timothy filed this suit for damages, based on the Wood case and Restatement (Second) of Torts section 700 (1977). At the trial, Timothy introduced the evidence outlined above, and the court took judicial notice of the court files in the prior cases between the parties. Joan did not appear for the hearing and produced no evidence. Her lawyer, however, appeared for her and moved to dismiss the suit for failure to establish a prima facie case of tortious interference. The court denied the motion.

In Wood we recognized the tort claim of intentional interference with custody and stated the rule:

"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."

338 N.W.2d at 124 (quoting Restatement (Second) of Torts § 700). A similar cause of action is now codified at Iowa Code section 710.9 (2001), although this was not a basis for the trial court's ruling and, in fact, was not raised at trial or on appeal until oral arguments.²

Despite a vigorous dissent in Wood raising several "slippery slope" arguments, see338 N.W.2d at 127-30 (Wolle, J., dissenting), we adopted the cause of action for several reasons: (1) similar claims had already been recognized at common law, id. at 124; (2) several other jurisdictions had recognized the claim, id. at 124-25; and (3) "the tort claim can, more effectively than any of the alternative sanctions [such as the Uniform Child Custody Jurisdiction Act, kidnapping prosecution, and contempt], serve both to prevent child-snatching and to pick up the pieces if it does occur," id. at 126-27. The prediction in the Wood dissent that a flood of intrafamily litigation would ensue has not been borne out. In fact, only one case involving the Wood cause of action, Lansky v. Lansky, 449 N.W.2d 367 (Iowa 1989), has reached this court in the twenty-one years since Wood. In Lansky we reaffirmed the holding of Wood. See Lansky, 449 N.W.2d at 368.

To establish a claim of tortious interference with custody, a plaintiff must show (1) the plaintiff has a legal right to establish or maintain a parental or custodial relationship with his or her minor child; (2) the defendant took some action or affirmative effort to abduct the child or to compel or induce the child to leave the plaintiff's custody; (3) the abducting, compelling, or inducing was willful; and (4) the abducting, compelling, or inducing was done with notice or knowledge that the child had a parent whose rights were thereby invaded and who did not consent. See 67A C.J.S. Parent and Child § 322, at 409 (2002).

II. The Issues.

The defendant argues: (1) the plaintiff's evidence is insufficient to establish a prima facie case of tortious interference, specifically with respect to any active conduct to entice Ashley away from her father; (2) there was insufficient evidence of willful and wanton conduct to support a claim for punitive damages; (3) the punitive damages award was excessive; and (4) the court erred in awarding attorney fees to Timothy.

The defendant's appeal brief also argues that Timothy could not sue for intentional interference because the parties have joint legal custody. See Restatement (Second) of Torts § 700 cmt. c ("When the parents are by law jointly entitled to the custody and earnings of the child, no action can be brought against one of the parents who abducts or induces the child to leave the other."). The defendant did not raise this argument in the district court, and she now concedes that Timothy has superior custody rights for purposes of this case. In any event, we hold that "primary physical care" under Iowa Code sections 598.1(7) and 598.41(5) is a sufficient basis for maintaining the cause of action, even if the parties have "joint legal custody" under Iowa Code sections 598.1(3) and 598.41(2), (4). To be consistent with the wording of the Restatement, we use "custody" in this case to refer to primary physical care.

III. Principles of Review.

In a law action tried to the court, our review is for the correction of errors at law, and the district court's findings of fact are binding on us if they are supported by substantial evidence. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490 (Iowa 2000); Grinnell Mut. Reins. Co. v. Voeltz, 431 N.W.2d 783, 785 (Iowa 1988). "Evidence is substantial if reasonable minds would accept it as adequate to reach a conclusion." Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 221 (Iowa 1998).

IV. The Court's Findings of Fact.

The district court found that Joan knew Ashley's father did not consent to her being in Joan's custody. The court further found that Joan induced Ashley to leave her father and not return as ordered by the court. The court based its inducement finding, in part, on testimony that, while Ashley was living with Timothy for a brief time in 2000, Joan sent an airline ticket, credit card, and a cell phone battery through a friend of Ashley to facilitate her leaving Iowa. She also fled with Ashley during a prior court proceeding in Iowa.

Joan did not attend the hearing on Timothy's tort suit, presumably because she was under the contempt show-cause order in Iowa. However, her lawyer appeared and argued that her client was unable to force Ashley to return to Iowa and that Joan merely provided shelter for her. The court rejected the lawyer's argument, saying "I want to hear evidence. I don't want to hear it through argument." In any event, this "fact" adduced by Joan's lawyer is belied by the record. When it was in Joan's interest to have Ashley testify in support of Joan's modification petition, she seemed to have no trouble getting Ashley back to Iowa. Also, by furnishing Ashley with the credit card and related items to facilitate her flight to Arizona, Joan went beyond merely providing shelter. The plaintiff's evidence, which was uncontroverted, is substantial and supports the court's finding that Joan induced Ashley to avoid returning to Iowa.

V. Punitive-Damage Award.

A. Are punitive damages recoverable in this case? In Wood we recognized a plaintiff's right to punitive damages in tortious-interference cases and noted the public policy considerations underlying that right. Wood, 338 N.W.2d at 127 ("potential punitive damages will serve as an additional deterrent"); cf. Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 404 (Iowa 1982) (allowing punitive damages for tortious interference with contractual relationship). See generally 67A C.J.S. Parent & Child §...