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This case deals with alienation of affection (interference with visitation) as a tort in Federal court.
Raftery v. Scott, 756 F.2d 335 (4th Cir. 03/07/1985)
| [1] | UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT |
| [2] | No. 84-1052 |
| [3] | 1985.C04.40346; 756 F.2d 335 |
| [4] | filed: March 7, 1985. |
| [5] | WILLIAM E. RAFTERY, SR., APPELLEE, v. KATHERYN GIRVIN SCOTT, APPELLANT. |
| [6] | Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. D. Dortch Warriner, District Judge. (C/A 83-0099-R). |
| [7] | William M. Kunstler (Kunstler and Mason on brief) for Appellant. |
| [8] | Sa'ad El-Amin (Sa'ad El-Amin & Associates on brief) for Appellee. |
| [9] | Before Hall and Murnaghan, Circuit Judges, and Michael, United States District Judge
for the Western District of Virginia, sitting by designation. |
| [10] | Author: Murnaghan |
| [11] | JUDGMENT |
| [12] | Appeal from the United States District Court for the Eastern District of Virginia, At
Richmond. D. Dortch Warriner, District Judge. |
| [13] | This cause came on to be heard on the record from the United States District Court for
the Eastern District of Virginia, at Richmond, and was argued by counsel. |
| [14] | On consideration whereof, It is now here ordered and adjudged by this Court that the
judgment of the said District Court appealed from, in this cause, be, and the same is
hereby, AFFIRMED. |
| [15] | MURNAGHAN, Circuit Judge: |
| [16] | 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. |
| [17] | 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. |
| [18] | 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." |
| [19] | 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. |
| [20] | 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]." |
| [21] | 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." |
| [22] | 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. |
| [23] | 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): |
| [24] | 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.*fn1 |
| [25] | In Wasserman v. Wasserman, 671 F.2d 832, 834-35 (4th Cir. 1982), we held: |
| [26] | However, 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. . . . |
| [27] | 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) (the action
claimed deprivation by the husband of the plaintiff's right to the custody and society of
her three minor children, a matter over which the district court did have jurisdiction,
exercisable once state custody proceedings were concluded). |
| [28] | Consequently, jurisdiction is not lacking.*fn2
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 depriving 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 §
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.*fn3 |
| [29] | 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.*fn4 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. |
| [30] | 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.*fn5 |
| [31] | 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,*fn6 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. |
| [32] | 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 the outlawed action for alienation of affection under the substitute label of
intentional infliction of emotional distress. However, the differences in the
characteristics of, and of the proof to establish, the two torts act to dissipate the
premise of the argument. Sufficient proof must be adduced of intentional infliction and
something much more than simply aggravation must be shown to make out a case of emotional
distress. The implicit threat of an avalanche of cases, arising whenever one parent makes
an uncomplimentary remark about the other, simply is not perceived by us as seriously
undermining society or its laws. The harm of deliberate frustration of a close and
affectionate relationship between parent and child, which the evidence permitted the jury
to find in the instant case, were there no remedy available to a parent who as a result
was psychologically damaged strikes us as more potentially a danger to society. |
| [33] | Accordingly, the case was properly submitted to the jury, and no error having been
claimed with respect to the evidence or instructions, and the amounts of the verdict for
compensatory damages and punitive damages being reasonably related to the tort asserted
and proven, the judgment below is |
| [34] | AFFIRMED. |
| [35] | Disposition |
| [36] | AFFIRMED |
| [37] | MICHAEL, District Judge, Concurring |
| [38] | In this case, because of the positive statement of the law governing this matter in
the Fourth Circuit in Cole v. Cole, 633 F.2d 1083 (4th Cir. 1980), as the doctrine there
laid out was reaffirmed in briefer form in Wasserman v. Wasserman, 671 F.2d 832 (4th Cir.
1982), I am constrained to concur in the result reached in the majority opinion, albeit
with reluctance. This concurrence is predicated on the fact that the law is so clearly set
out in Cole and Wasserman that it must be recognized that both the lawyers and the court
below are entitled to rely on that law as it is set out in those cases. This court sits to
review cases for asserted error, and, if error be found, to take corrective action.
Considered in light of the reasoning of Cole and Wasserman, the court below did not err in
its handling of this case*fn7, so that no
corrective action is appropriate. That being the case, joining the majority opinion
affirming the court below would be the usual -- and the more comfortable -- course.
Because of real concerns as to the implications of the doctrine of Cole, Wasserman, and
the majority opinion in this case, concurrence in the result here is an appropriate
course, but those concerns require an explication, as set out infra. |
| [39] | First, it cannot be disputed that in Cole, in Wasserman, and in the instant case, the
controversy between the parties ineluctably had its origin in the domestic discord which
developed between husband and wife in those three cases. This ultimate fact in these three
controversies should not be ignored or overlooked. The majority opinion here implicitly
acknowledges the Wasserman opinion language to the effect that "the previous marital
relationship of the parties and the presumably strong feelings associated with that
relationship may as a factual matter have contributed to the underlying events and the
initiation of this suit; ..." Wasserman at 834 (emphasis added). What has happened in
all three cases is that the opinions in Cole and Wasserman and the majority opinion in the
instant case have passed by this "factual matter" which contributed to the
"initiation of this suit" and have picked up beyond the marital relationship,
relegating that initiating fact pattern to outer darkness. Having thus put to one side the
ultimate source of the controversy, the opinions go on to find bases for the exercise of
federal jurisdiction which in the view of this concurrence strongly undercut the domestic
relations exception so fully developed in the previous cases in the federal courts
concerning the exception. |
| [40] | In Cole and in Wasserman, the controversies were directly between husband and wife, or
former husband and former wife, while the instant case asserts, in words and in effect, an
alienation of the affections of a child for its father by the actions of its mother, the
child then being in the custody of the mother, and a resulting intentional infliction of
emotional distress on the father by the mother. Leaving aside the thorny question of
whether alienation of the affections of a child was ever recognized at common law or by
the statutory law of the Commonwealth of Virginia, the factual distinction between the two
previous cases and the instant case is not significant in the analysis herein set out. |
| [41] | In the instant case, the record shows without contradiction that the parties were
engaged in domestic relations litigation in the state courts in Virginia and in New York
State when this action was brought in federal court. The New York litigation had resulted
in husband's obtaining a decree of divorce a vinculo matrimonii, the court there reserving
questions of visitation and the like for further proceedings. In the Virginia court
proceeding, efforts were being made by the court to determine the propriety of the
father's terms to be imposed, etc. While this litigation was ongoing in these two courts,
the plaintiff came forward with a suit charging alienation and the tortious offense that
the wife had engaged in the intentional infliction of emotional distress on the plaintiff
husband. It is essentially on this latter basis of tort that the case was tried in the
court below. |
| [42] | Certainly, it is hard to envision any situation between two parties more likely to
create emotional distress than the deterioration of the domestic relationship between a
husband and wife. It may be taken as given that actions by a spouse in derogation of the
marital relationship will produce an emotional distress in the other spouse. Whether that
action was taken with malice, wilfully to induce such emotional distress in the other, or
was taken with justification, or at least without the necessary malicious intent, is a key
issue in determining the existence of the tort of intentional infliction of emotional
distress. |
| [43] | Any practitioner in the state courts who ever engaged in any domestic relations work
knows with awesome clarity the emotional impetus which such controversies can generate in
all the parties involved in such litigation. If one is to change the situation shown in
the instant case, and is to assume that the parties are unrelated in any way, it is far
less likely that a jury could conclude that emotional distress was created in the
plaintiff by actions of the defendant taken arguably for the purpose of alienating the
affections of a child toward this assumed stranger-plaintiff. Only because of the domestic
relationship between the parties do we find that high level of emotional reaction which a
break-up of the marital relationship, and the consequent acts of the parties, may engender
in a plaintiff. In brief, if the case is to proceed on the basis of the intentional
infliction of emotional distress, it is inescapable that the former marital relationship,
now broken, and the actions taken following that breaking, will be taken into account. |
| [44] | It is true that on a technical basis the tort of intentional infliction of emotional
distress can be successfully prosecuted without any reference to the marital relation, and
it is on this pivot that Cole, Wasserman, and the instant majority opinion turn. |
| [45] | Yet, the record below clearly shows that the jury was advised of the former domestic
relationship and of the actions of the mother toward the child and against the interests
of the father. Only the most meticulous honing of the differentiation sought to be set out
by these three cases can support the leap in logic which says that the domestic
relationship between the parties is of no moment in the prosecution of the instant case. |
| [46] | If, for instance, it is assumed that a somewhat impecunious husband comes home to a
well-to-do wife one evening, to be advised by her that she and the children are leaving
him, one may easily imagine the emotional distress caused by any such event. Certainly, it
is an intentional event, so far as the wife is concerned, and it is clearly to be
discerned that there may or may not be legally cognizable reasons for her taking this
drastic step. If, to complicate the matter further, we assume that the parties lived in
reasonable tranquility in Bluefield, Virginia, until this bombshell announcement, husband
has only to move across the invisible state line which separates Bluefield, Virginia, from
Bluefield, West Virginia, in order to find the necessary diversity of citizenship. They
may live two blocks apart after the separation, but the diversity is there.
Husband-plaintiff then files suit in the United States District Court for the Western
District of Virginia asserting the intentional infliction of emotional distress. Without
question, wife will then undertake to indicate that there was no malign motive in her
taking this action, that it was not taken with malice, wilfully, etc., and that she had
ample justification for doing so. The matter then goes to trial, with husband asserting no
fault in this situation, and with wife asserting that he was entirely at fault. This comes
very close to defining a divorce action, though brought in the form of a suit seeking
relief for an alleged tort. Even if we assume that what remains of the domestic relations
exception after Cole, Wasserman, and the instant case do not permit the federal court to
grant the divorce, the narrow circumscription of that doctrine by those opinions might
just as well permit the district court to go to that extent, since essentially the
evidence appropriate to determining the status of the parties as to divorce will then be
before the court. After all, federal courts still retain chancery jurisdiction. U.S.
Const., art. III, § 2, cl. 1. Since the Federal Court will be sitting with diversity
jurisdiction, applying the law of the Commonwealth of Virginia in this assumed case, the
only bar to the granting of a divorce is whatever remains of the domestic relations
exception after Cole, Wasserman, and the instant case. |
| [47] | It scarcely seems appropriate to say in effect that such a pattern will occur so
rarely that it is not worthy of concern. Whether it will be a rare occasion or one of
increasing frequency -- which this writer believes will be the case -- the decision must
turn on the law, and on the effects of that law. In the hypothetical situation posed here,
it should also be pointed out that the district court will have before it most, if not
all, the evidence appropriate to making findings as to custody, visitation, etc. as well
as the appropriate evidence to determine whether a divorce should or should not be
granted, as noted supra. |
| [48] | In fact, the emergence of the somewhat recently discovered tort of "intentional
infliction of emotional distress" is the catalyst which brings these unfortunate
developments into congruence one with the other. It is even more unfortunate that that
congruence will in effect place the United States District Court in the position of
hearing all of the evidence relating to divorce, custody, alimony, and support money, in
connection with a determination of the existence or non-existence of the tort alleged,
and, assuming existence, the fixing of damages for the tort. Such a projection from Cole,
Wasserman, and the instant case reduces markedly the domestic relations exception which
has been so long and properly recognized in federal jurisdiction. |
| [49] | There are a number of reasons for that domestic relations exception, as previously
recognized and clearly explicated in previous cases. First, there is the uncontested fact
that the state through its courts has a stronger and more direct interest in the domestic
relations of its citizens than does the federal court. Second, there is the fact that
throughout the country, so far as investigation has disclosed, each state has set up
specialized courts which deal with domestic relations matters, particularly in relation to
children. They have vested in their courts jurisdiction over divorce matters, with the
ancillary matters of alimony, etc., flowing from that grant of jurisdiction. These and the
other factors mentioned in the cases conjoin to indicate that the domestic relations
exception in federal jurisdiction is a valid and appropriate exercise of restraint on the
part of the federal courts. |
| [50] | If the tort alleged is that of "intentional infliction of emotional
distress" with jurisdiction essentially predicated on diversity, as in the instant
case, then there will, almost inescapably, be placed before the trier of fact the question
of the domestic relations of the parties, principally as a means of showing the degree and
intensity of the emotional distress. It is thus difficult to see how one can reach the
conclusion that domestic relations do not enter into a suit based on this tort, in any
case where a spouse, or former spouse, sues the other for acts during or following the
marriage, which acts are related to the marital relationship. Obviously, if the tort is
asserted to have been committed by parties who are, or were, not in a domestic
relationship, then nothing concerning a domestic relationship comes into the case. In the
cases of Cole, Wasserman, and the instant case, however, the domestic relationships
between the parties were a salient part of the evidence which went to the jury. |
| [51] | More generally speaking, if the logic of Cole and Wasserman is to be followed, it
appears that two conclusions are inescapable. First, it must be concluded that the
district court should simply ignore one of the operative facts in the pattern, namely,
that the dispute arose out of, or was exacerbated by the break-up of, the marital
relationship between the parties. Second, by following this course, the courts are
undercutting the domestic relations exception. From a sociological point of view, this may
be a desirable result. As to this point, the majority apparently feels that any result
other than the one reached by it would leave the plaintiff without remedy for the tort.*fn8 It should not be thus readily assumed that
the state courts, particularly vested with domestic relations jurisdiction, are without
power to redress any such tort. |
| [52] | If such a result of narrowing the domestic relations exception is to be brought about,
it should be done by the action of Congress, rather than by this whittling away process.
It is significant that Congress has accepted the domestic relations exception for over 100
years, without undertaking to reduce it or to change it in any way. |
| [53] | If this is to continue to be the law governing such matters, then we have, in simple
terms, given to the plaintiff in circumstances such as these a ticket to ride serenely
past the bar of the domestic relations exception by the simple expedient of alleging
"intentional infliction of emotional distress". There is no question that the
proof of that tort does not require the proof of a domestic relations factor, but it is
equally certain that in these cases the offense arises out of the domestic relations
relationship and that the relationship is a salient factor -- probably the most salient
factor -- in showing the degree of emotional distress suffered by the plaintiff. I simply
cannot agree that the plaintiff, for future cases, under these circumstances should be
permitted to avoid the exception. |
| [54] | As set out above, the law in this Circuit is so clearly stated that the writer is
forced to concur in the result reached in the majority opinion. |
| [55] | I concur. |
| Opinion Footnotes | |
| [56] | *fn1 Paraphrasing the language in Cole v
Cole, "The duty to abstain from [curtailment or abrogation of a parent/child
relationship or even the alienation of a child's affection for his father] does not arise
out of or require, in order to give rise to the duty, a present or prior family
relationship." |
| [57] | *fn2 The concurring opinion, while
acknowledging that the law, as it has been laid down in Cole and Wasserman, permits no
other result, expresses a concern that the plaintiff has been given "a ticket to ride
serenely past the bar of the domestic relations exception." That, to us, appears to
have overlooked two considerations: (1) A year before Raftery sued in
federal court for intentional infliction of emotional distress, he claimed in a Virginia
state court, the only relief he has sought which would affect a readjustment of the
domestic relationship of the parties. He sought enforcement of visitation rights which, in
contravention of a state court decree, had been denied him by Scott. (2)
With relief which would adjust the domestic relationship apparently a remote possibility
because of Scott's success in turning the son against the father, Raftery
only then brought suit in federal court seeking exclusively monetary relief. The domestic
relations of the parties would not be affected, regardless of whether, on the merits, Raftery
should win or lose. Scott had arguably committed a tort, and she might be
poorer if that were established in court (as ultimately was the case). Payment of a
judgment, however, cannot reasonably be categorized as an act involving a domestic
relationship. Most individual defendants are apt to be married. They cannot escape federal
diversity jurisdiction simply by asserting that their wives will be upset if they are
forced to pay, or that their relationship with the plaintiffs will be worsened. Had Raftery
been struck by an automobile driven by Scott, or had he sold her goods for
which she refused to pay, the one time, fully terminated relationship of husband and wife
would not have sufficed to preclude federal diversity jurisdiction. |
| [58] | *fn3 We, therefore, have no occasion to
investigate whether the statute, indeed, reaches alienation of the affection of a child,
especially one of the same sex, rather than applying only to alienation of the affection
of an adult of the opposite sex. However, it should be noted that breach of promise to
marry and criminal conversation (and, incidentally, seduction as well) concern such
relationships between adults not necessarily or customarily related by blood and
application of the doctrine of noscitur a sociis (of which ejusdem generis is a
sub-species) suggests that the term alienation of affection, as employed in the statute,
is similarly so restricted. Therefore, there well may remain still viable in Virginia a
claim for alienation of the affection of one's child, if indeed one existed prior to June
28, 1968. See, however, Schuppin v. Unification Church, 435 F. Supp. 603, 609 (D. Vt.
1977). Moreover, indeed, a cause of action for alienation of the affection of one's
child may have first come into being in Virginia after June 28, 1968. It may well not have
existed prior to that date. Restatement Torts 2d § 699. See Coulter v. Coulter, 73 Colo.
144, 150, 214 P. 400, 402 (1923) ("No authority has been brought to our attention
that an action for alienation of affections exists, except as growing out of, or connected
with, the marriage relation."). In that case the statute could hardly be held to be a
bar. Non-existent at the time of the act's passage, a cause of action would be unlikely to
have been its target. However, we have no occasion to pursue that possibility. We may
assume, for purposes of the case, that an action for alienation of the affection of a son
brought by a father has been abrogated by the statute, or never existed in the first
place. |
| [59] | *fn4 Intentional infliction of emotional
distress and alienation of affection are two distinct causes of action. Under the former,
a plaintiff must establish that the tort is intentional or reckless, the tort-feasor's
conduct is outrageous and intolerable, the wrongful conduct and the emotional distress are
causally connected and the emotional distress is severe. Womack v. Eldridge, 215 Va. 338,
210 S.E.2d 145 (Va. 1974). To recover for the tort of alienation of affection, at least as
it existed prior to the 1968 statutory abolition, outrageous and intolerable conduct or a
showing of severe emotional distress were not prerequisites for recovery. Instead, a
plaintiff need only show a "malicious" (meaning unjustifiable) interference or
an intention that such interference result in the loss of affection. Annotation, Right of
Child or Parent to Recover for Alienation of Other's Affections, 60 A.L.R.3d 931, 939
(1974), citing Strode v. Gleason, 9 Wash. App. 13, 510 P.2d 250 (1973) (allowing
compensatory damages against a third party who maliciously alienated the affections of a
minor child). Unlike the tort of intentional infliction of emotional distress, alienation
of affection also has required an existing family relationship. See generally, 9B Michie's
Jurisprudence of Virginia and West Virginia § 101 (1984); 60 A.L.R.3d 931, 935. Hence,
not only are the elements of the two causes of action different, but intentional
infliction of emotional distress implies a higher burden of proof than alienation of
affection. We have here, therefore, not merely a solitary rose (alienation of affection)
but rather a bouquet containing, in addition, the tulip of intentional infliction of
emotional distress. |
| [60] | *fn5 An argument that there should be a
retrial to effect a reduction in the amounts of the compensatory and punitive verdicts, to
strike out such parts thereof as might be wrongly calculated with reference to alienation
of affection, irrespective of whether the argument otherwise has any validity, is not open
to Scott. She opted for an all or nothing approach and may not assert a
claim that only some of the recovery was appropriate. |
| [61] | *fn6 Nevertheless, in 1981 interspousal
immunity came to an end by statute. Ann. Va. Code § 8.01-220.1, signifying the
recognition of a profound societal change with regard to the consequences of suits between
family members. By the time the son attains majority and is emancipated, and within the
time limit established by the appropriate statute of limitations, it may be determined
that the relationship between an emancipated son and his parent is not, as a matter of
Virginia common law, so subject to adverse consequences as to bar a suit by the son
against Scott, especially if the claim is that the parent acted wilfully or
maliciously. Cf. Worrell v. Worrell, 174 Va. 11, 27-29, 4 S.E.2d 343, 350 (1939);
Brumfield v. Brumfield, 194 Va. 577, 580-82, 74 S.E.2d 170, 173, 174 (1953); Smith v.
Kauffman, 212 Va. 181, 185-86, 183 S.E.2d 190, 194 (1971). See especially, Strode v.
Gleason, supra. |
| Concurrence Footnotes |