Wood v. Wood

• Decision Date: 21 September 1983
• Docket Number: No. 68316,68316
• Citation: 338 N.W.2d 123
• Parties: Judy Rae WOOD, Appellant, v. Kenneth WOOD, Appellee.
• Court: Iowa Supreme Court

Page 123

338 N.W.2d 123

Judy Rae WOOD, Appellant, v. Kenneth WOOD, Appellee.

No. 68316.

Supreme Court of Iowa.

Sept. 21, 1983.

Timothy W. Shuminsky, of Shuminsky, Shuminsky & Molstad, Sioux City, for appellant.

Considered en banc.

LARSON, Justice.

The substantive issue here is whether a claim for damages may be asserted against a parent who has refused to return the parties' child within the time provided in the dissolution decree. A motion to dismiss the petition was sustained by the district court. We reverse and remand.

The plaintiff's petition alleged that, "from December 25, 1981, to January 29, 1982, the defendant kidnapped the minor child of plaintiff from her care, custody and control" and that such act was "negligent, willful, malicious and in utter disregard for the rights of the plaintiff." She demanded actual and punitive damages.

The defendant responded by filing a motion to dismiss, alleging:

1. That there is no cause of action as alleged by the plaintiff as to warrant her receiving money damages from the defendant so that this matter should be dismissed.

2. That there are no statutory nor common law grounds which form the basis of this action.

WHEREFORE, defendant prays that plaintiff's petition be dismissed at her cost.

The district court sustained the motion to dismiss in a calendar entry which simply said: "Defendant's Motion to Dismiss is sustained. Copies to counsel."

I. The Procedural Issue.

The plaintiff complains that the district court's ruling sustaining the motion to dismiss did not comply with Iowa Rule of Civil Procedure 11 because it did not rule separately on each ground of the motion. Rule 118 provides:

Specific rulings required. A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.

This court has said that the purpose of this rule is to enable the parties to know which grounds are sustained by the court and to narrow the issues on appeal, thereby saving time and expense. Brown v. Ellison, 304 N.W.2d 197, 200 (Iowa 1981); Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739, 743 (Iowa 1977). We have held that failure of a court to abide by rule 118 ordinarily is reversible error. Brekken v. County Board of Review, 223 N.W.2d 246, 247 (Iowa 1974); Ruby v. Easton, 207 N.W.2d 10, 14-15 (Iowa 1973).

In this case, however, failure of the court to separately rule on each paragraph of the motion did not amount to a failure to rule on "separate grounds" as required by rule 118. While the motion to dismiss was in separate paragraphs, it raised only one issue: Does Iowa recognize this claim for damages?

II. The Claim for Abduction.

In an early case, this court discussed the right of a parent to recover damages for deprivation of custody of a child:

That the father has a right to the care and custody of his minor children, and to superintend their education and nurture, is a proposition that does not admit of controversy. And where he is deprived of such care and custody, and of this superintendence, by the act of another, he has his remedy, by proper action, against such person, is equally clear. As it is the duty of the father to educate, protect, and nurture his children, so it is his right to have their society, their services, and the control of their moral and intellectual training.

Everett v. Sherfey, 1 Iowa 356, 359 (1855).

In its early stages, a claim for wrongfully seizing or retaining custody of a child was restrictively applied; only a father could pursue the claim, and it was based on a deprivation of the child's services. Id. at 360-61; see also Pyle v. Waechter, 202 Iowa 695, 697, 210 N.W. 926, 927 (1926); W. Prosser, Handbook of the Law of Torts § 124, at 882-83 (4th ed. 1971). The rule permitting recovery has since been expanded; most courts requiring a loss of services as a prerequisite have been willing to find a constructive loss of services, even though none are being rendered. Other courts disregard earlier restrictions and merely adopt what is characterized as the "modern" view. Under this approach, the essence of the claim is the interference with the parental relationship, not a loss of services. Id. at 883.

As long ago as 1938, the Restatement of Torts recognized an action for tortious interference with custody. See Restatement of Torts § 700 (1938). The current section states the principle:

§ 700 Causing Minor Child to Leave or not to Return Home. 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.

Restatement (Second) of Torts (1977). The Restatement rule permits suits by parents against noncustodial parents, as well as against nonrelatives:

c. When both parents entitled to custody and earnings. 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. When by law only one parent is entitled to the custody and earnings of the child, only that parent can maintain an action under the rule stated in this Section. One parent may be liable to the other parent for the abduction of his own child if by judicial decree the sole custody of the child has been awarded to the other parent.

Restatement, supra, § 700, comment c. (Emphasis added.)

The claim for interference with custody rights appears to have been recognized in every jurisdiction which has addressed the issue. See, e.g., Rosefield v. Rosefield, 221 Cal.App.2d 431, 435-37, 34 Cal.Rptr. 479, 483 (1963); Bennett v. Bennett, 682 F.2d 1039, 1044 (D.C.Cir.1982); Spencer v. Terebelo, 373 So.2d 200, 202 (La.App.1979) (cause of action based on violation of kidnapping statute; breach of legal duty); Wasserman v. Wasserman, 671 F.2d 832, 834-35 (4th Cir.1982) (applying Maryland law) (complaint alleging "child enticement" is a generally recognized common law tort); Kipper v. Vokolek, 546 S.W.2d 521, 525 (Mo.App.1977) ("The tort may be actionable between parents of the child where, by proper judicial decree, the sole custody of the child has been awarded to one of the parents." The Missouri court dismissed the father's action, however, because the custody orders upon which he based his claim were void for lack of proper notice); LeGrenada v. Gordon, 46 N.C.App. 329, 331-32, 264 S.E.2d 757, 758-59, appeal on petition for review dismissed, 300 N.C. 557, 270 S.E.2d 109 (1980) (interspousal suit under a valid custody agreement); Fenslage v. Dawkins, 629 F.2d 1107, 1109 (5th Cir.1980) (applying Texas law); Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431 (1978) (cause of action for intentional infliction of mental distress resulting from denial of personal contact or communication with daughter allowed to be maintained); Lloyd v. Loeffler, 694 F.2d 489, 495-96 (7th Cir.1982) (applying Wisconsin law); Kajtazi v. Kajtazi, 488 F.Supp. 15, 18-21 (E.D.N.Y.1978) (applying New York law). ¹ See also Restatement (Second) of Torts § 700 (1977); W. Prosser, Handbook on the Law of Torts (4th ed. 1971) § 124, at 883-84; 67A C.J.S.Parent and Child § 130, at 512 (1978); see generally Note, Tortious Interference with Custody: An Action to Supplement Iowa Statutory Deterrents to Child Snatching, 68 Iowa L.Rev. 495 (1983).

Another, similarly uniform, line of cases establishes the tort claim where the interference is instigated or furthered by relatives or other third parties. While these cases do not have spouses as defendants, they often spring from abduction of the child by a spouse. In all, the logic and language support a cause of action by a custodial parent against the other, noncustodial parent. See Gibson v. Gibson, 15 Cal.App.3d 943, 93 Cal.Rptr. 617 (1971); Hinton v. Hinton, 436 F.2d 211, 213 (D.C.Cir.1970), aff'd w'out op., 492 F.2d 669 (D.C.Cir.1974); Brown v. Brown, 338 Mich. 492, 498, 61 N.W.2d 656, 659 (1963); Oversmith v. Lake, 295 Mich. 627, 295 N.W. 339 (1940); Pickle v. Page, 252 N.Y. 474, 169 N.E. 650 (1930); Lisker v. City of New York, 72 Misc.2d 85, 338 N.Y.S.2d 359 (1972); McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977); McBride v. Magnuson, 282 Or. 433, 436, 578 P.2d 1259, 1259-60 (1978).

Frequently, in fact, the abducting spouse figures prominently in the case and is not a defendant only because he or she has fled with the child to a foreign jurisdiction. See, e.g., Gibson, 15 Cal.App.3d at 945, 93 Cal.Rptr. at 618; Brown, 338 Mich. at 495-97, 61 N.W.2d at 657-59; McEvoy, 277 Or. at 784, 562 P.2d at 542. This recurring scenario itself suggests the need for recognition of a civil claim for damages.

III. Other Alternatives.

There obviously are several remedies available to a victimized parent. Each of them, including the tort claim, however, has its limitations. (A tort claim will obviously furnish little deterrent or likelihood of recovery in the case of an impecunious defendant.) Concerning the use of alternative remedies in such cases, see Note Tortious Interference with Custody, supra, 68 Iowa L.Rev. at 500-15.

The case now before us illustrates how the tort claim can, more effectively than any of the alternative sanctions, serve both to prevent child-snatching and to pick up the pieces if it does occur.

A. The UCCJA. The Uniform Child Custody Jurisdiction Act, Iowa Code chapter 598A, is basically just that--a jurisdiction act. It provides no compensation for interference with custody in any case. In the present case, it would not even allow recovery of expenses, because the custody decree is not one of "another state." See Iowa Code § 598A.15. Because the uniform act provides no compensation for the plaintiff, it provides little or no deterrent to the defendant.

Professor Sanford Katz, chairman of the Family Law Section of the American Bar Association and...