Haines v. Vogel

Gregory Haines v. Gretchen Vogel, No.1789, September Term 2019. Opinion by Wells, J. CIVIL PROCEEDURE – MOTION TO DISMISS – FAILURE TO STATE A CLAIM – STANDARD OF REVIEW Appellate courts apply a de novo standard of review to determine whether a trial court’s dismissal of a complaint was legally correct. TORTS – INTENTIONAL INTERFERENCE WITH PARENTAL RELATIONS – REQUIRED ELEMENTS OF THE COMPLAINT Based on the precedent established by this Court in Lapides v. Trabbic, 134 Md. App. 51 (2000), and the precedent established by the Court of Appeals in Hixon v. Buchberger, 306 Md. 72 (1986) and Khalifa v. Shannon, 404 Md. 107 (2008), we hold that to properly assert a complaint for intentional interference with custody or visitation, a petitioner must allege the physical removal and harboring of the child from the other parent. TORTS – INTENTIONAL INTERFERENCE WITH PARENTAL RELATIONS – REQUIRED ELEMENTS OF THE COMPLAINT Allegations that amount to “emotionally distancing” a child from a parent, regardless of severity, and even if such actions lead to a child’s refusal to visit with a parent, are an insufficient basis on which to sustain a complaint for intentional interference with custody or visitation as that tort has been defined in Maryland.

TORTS – INTENTIONAL INTERFERENCE WITH PARENTAL RELATIONS – REQUIRED ELEMENTS OF THE COMPLAINT Here, the complaint did not allege that a parent had physical removed or harbored a child from the other parent so as to frustrate that parent’s visitation or make visitation impossible. Therefore, the circuit court properly dismissed Count I of the complaint. TORTS – INTENTIONAL INFLICTION EMOTIONAL DISTRESS To sustain a claim for intentional infliction of emotional distress one must allege that: (1) the conduct at issue was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there is causal connection between the extreme and outrageous conduct and the resultant distress; and (4) the emotional distress is severe. TORTS – INTENTIONAL INFLICTION EMOTIONAL DISTRESS In this case, the appellant’s allegations were not “extreme or outrageous,” as defined by precedent, nor did the appellant allege “severe” emotional distress.

Consequently, the circuit court properly dismissed Count II of the complaint. Circuit Court for Carroll County Case No. C-06-CV-19-0126 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1789 September Term, 2019 _____________________________________ GREGORY HAINES v. GRETCHEN VOGEL _____________________________________ Graeff, Wells, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. _____________________________________ Opinion by Wells, J. _____________________________________ Filed: April 7, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-04-07 09:28-04:00 Suzanne C. Johnson, Clerk Appellant, Gregory Haines, filed a complaint against appellee, Gretchen Vogel, his former wife and the mother of their two children, alleging that her conduct toward him amounted to (1) tortious interference with visitation and custody and (2) intentional infliction of emotional distress. The Circuit Court for Carroll County dismissed the complaint with prejudice. Mr. Haines filed a timely appeal and poses two questions which we have reworded:1 1.

Did the circuit court properly dismiss appellant’s claim for intentional interference with visitation and custody? 2. Did the circuit court properly dismiss appellant’s claim for intentional infliction of emotional distress? For the reasons that we explain below, the circuit court properly dismissed the complaint. We, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND Gregory Haines, (hereafter “Father”) and Gretchen Vogel, (hereafter “Mother”), a married couple, had two children, J. born in 2000, and T., born in 2005.2 The parties 1 Mr. Haines’ verbatim questions read: I. Did the Circuit Court for Carroll County err in dismissing Count I of Appellant’s Complaint, Intentional Interference with Visitation and Custody?

II

Did the Circuit Court for Carroll County err in dismissing Count II of Appellant’s Complaint and Amended Complaint, Intentional Infliction of Emotional Distress? 2 For the children’s privacy, we shall refer to them by the initial of their first names. Also, we note that by the time Father filed the complaint, J. was an adult. separated in October 2013 for various reasons including Father’s self-admitted “marital misconduct.” After the separation, it is undisputed that Mother had de facto physical and legal custody of the children. Mother filed for divorce in December 2013, and according to Father, he was permitted access with the children, “six and a half hours a week.” In February 2014, Mother filed a petition seeking domestic violence protection from Father. Although a court denied the petition, according to Father, the court entered a temporary order allowing him alternating weekend visitation with the children, plus one evening during the week.

We will discuss Father’s allegations against Mother in detail later. For now, it is enough to say that for various reasons, the children grew reluctant or outright refused to visit with him. From October 2014 through October 2015, the parties turned to Amy Mazer, LCSW-C,3 to help them try to repair the relationship between the children and Father. That effort seemed marginally helpful, because the parties retained Dr. Paul Berman, Ph.D., a psychologist, to assess the parties, their children, and make “access and treatment recommendations” aimed at restoring some sort of relationship between the children and Father.

Dr. Berman’s report, dated July 13, 2016, is included in the joint record extract. About one year later, July 3, 2017, the circuit court appointed Rebecca Snyder, Psy.D., “to serve as the forensic reunification therapist.” The outcome of these 3 LCSW-C or Licensed Certified Social Worker-Clinical is the highest level of licensure for a Social Worker. This level allows the license-holder to have a private practice, perform clinical social work, and train LCSW’s. See Maryland Code Annotated (1981, 2014 repl.), Health Occupations, Title 19; COMAR 10.42.01-10. 2 interventions are unknown.

Based on what happened next, it did not seem that either Dr. Berman’s or Dr. Snyder’s efforts led to positive results. On March 20, 2019, Father filed a complaint against Mother alleging in Count I, intentional interference with visitation and custody, and in Count II, intentional infliction of emotional distress. In Count I, Father alleged that Mother’s continuing conduct had “deliberately and maliciously” deprived him of his “custodial and/or visitation rights and has alienated the children” from him such that a relationship with them was now “impossible.” He demanded damages exceeding $75,000.00. In Count II Father alleged that Mother’s conduct had caused him “extreme emotional distress.” He demanded damages in excess of $75,000.00.

Mother moved to dismiss. She asserted that the complaint failed to state a cause of action. Specifically, with regard to Count I, she argued that the holdings in Hixon v. Buchberger, 306 Md. 72 (1986), Lapides v. Trabbic, 134 Md. App. 51 (2000), and Khalifa v. Shannon, 404 Md. 107 (2008), require finding that for Father to succeed on a claim of intentional interference of visitation or custody, he must allege that Mother physically removed the children so that it would be impossible for Father to visit with the children. As for Count II, citing primarily, Batson v. Shifflett, 325 Md. 684 (1992), Mother claimed that Father’s allegations, even if believed, did not amount to the type of outrageous conduct required to sustain an allegation of intentional infliction of emotional distress.

Therefore, the circuit court properly dismissed the complaint. Father maintained that “the lessons” from the holdings of the cited cases, is “that the conduct and the harm must be serious” to successfully prove intentional interference 3 with custody. In Father’s estimation the allegations he raised were several orders of magnitude more severe than the conduct in either Hixon or Lapides. Father argued that Mother’s conduct was on par with the conduct under scrutiny in Khalifa.

There, a mother moved her two minor children to Egypt without telling the children’s father. A jury found that the mother had interfered with the father’s custody and awarded him substantial money damages. 404 Md. at 113 . Father also argued that Mother’s continuing efforts to keep the children from him were so outrageous that her conduct met the standard to support his claim for intentional infliction of emotional distress On June 21, 2019, the circuit court held a hearing on Mother’s motion to dismiss. After listening to counsels’ arguments, the court dismissed the complaint, but permitted Father to amend within thirty days.

He did. The amended complaint essentially restated Mother’s alleged misconduct and added other examples, none of which alleged that Mother had physically removed the children to prevent Father from having contact with them. After a hearing on Mother’s renewed motion to dismiss, the court dismissed Father’s amended complaint with prejudice. Father subsequently filed this timely appeal.

Additional facts are discussed below as necessary. DISCUSSION We review a circuit court’s grant of a motion to dismiss without deference. “In determining whether the decision of a lower court was legally correct, we give no deference to the trial court findings and review the decision under a de novo standard of review.” Lamson v. Montgomery Cnty., 460 Md. 349 , 360 2018 (quoting Walter v. Gunter, 367 Md. 386, 392 (2002); Howard v. Crumlin, 239 Md. App. 515, 521 (2018) (“[T]he standard of 4 review of the grant or denial of a motion to dismiss is whether the trial court was legally correct.” I. Intentional Interference with Visitation and Custody Both parties rely for support on the previously cited cases of Hixon, Lapides, and Khalifa. We examine each case separately. 1. Hixon v. Buchberger Jonathan Hixon and Linda Liebelt had a child during their relationship.

A court order granted Liebelt residential custody of the child and granted Hixon specified visitation. 306 Md. at 73-74 . Liebelt began living with and later married Paul Buchberger. Hixon sued Buchberger, claiming, [t]hat on November 16, 1984, at a time when [Hixon] lawfully went to [Liebelt’s and Buchberger’s] address to pick up the minor child for visitation purposes, the Defendant Buchberger began making belligerent and hostile statements to [Hixon] in the presence of the minor child, stating that [Hixon] was not really the child’s father. The said Defendant Buchberger made it difficult for the Plaintiff, Jonathan D. Hixon, to physically take his child with him to exercise normal visitation, at times the Defendant flatly refused to surrender the child to [Hixon] and repeatedly threatened violence.

Id. at 74 . The circuit court dismissed Hixon’s claim of tortious interference with visitation and Hixon appealed to this Court.4 Id. at 75 . Before we could consider the appeal, the Court of Appeals granted certiorari. 4 As was the case here, Hixon’s complaint consisted of two counts. The first count sought an injunction.

The second count claimed intentional interference with visitation and demanded compensatory and punitive damages totaling $85,000.00. Hixon, 306 Md. at 75 . 5 In evaluating the circuit court’s dismissal of Hixon’s complaint, the Court reviewed decisions from the turn of the last century, observing that those cases dealt with tortious interference with domestic relations known as enticement or abduction of a child. Id. However, the Court determined that the Restatement (Second) of Torts (1977) (“Restatement”), section 700 was more applicable.

That section states: [o]ne 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. Hixon, 306 Md. at 78 . The Court concluded that comment g of the Restatement section 700 permitted, a custodial parent who suffers the tort [to] recover damages for the loss of society of the child, for emotional distress resulting from abduction or enticement, for loss of service, and for the reasonable expenses of regaining the child and in treating any harm suffered by the child as a result of the tortious conduct. Id.

Hixon acknowledged this lineage of cases but urged the Court to instead rely on the holding in Ruffalo v. United States, 590 F. Supp. 706 (W.D.Mo.1984), arguing that the cause of action should not be limited to the custodial parent. Id. at 79. In Ruffalo, the United States Court for the Western District of Missouri granted a mother a money judgment after she successfully sued for tortious interference of custody. There, the mother had legal custody of the parties’ minor son.

The father and the child entered the Federal Witness Protection Program and were given new identities. Ruffalo, 590 F. Supp. at 709 . The federal court found that the father’s and son’s entry into the Witness Protection 6 Program “had the effect of destroying [the mother’s] pre-existing legal right.” The court found that “[i]ntentional interference with visitation rights may therefore be imputed to the governmental sponsor of the Witness Protection Program.” Id. The court suggested that “state courts could well restrict this type of claim to situations that are not insubstantial in duration and effect” but, “the possibility of truly petty damage suits does not argue persuasively against recognition of a right to sue.” Id. at 713 .

The court then made “an educated guess,” that Missouri would recognize a damage suit for interference with visitation rights and assessed damages to the mother for the deprivation of those rights. Id. After examining Ruffalo and appellate precedent from other jurisdictions, the Court of Appeals declined to expressly rule on Mr. Hixon’s contention that “Maryland law should not limit monetary recoveries in cases of intentional interference with parent/child relations to interferences with custody.” Hixon, 306 Md. at 78 . Instead, the Court stated that “a proper recognition of the interests of a parent who is awarded visitation rights includes recognition of a cause of action for damages for intentional interference with visitation rights.” Id. at 79 .

Significantly, the Court concluded that “the interference alleged here falls short, by a considerable distance, of the more substantial interferences presented in many of the cases relied upon by Hixon.” Id. The Court concluded that the “belligerent words” that Buchberger used were “so minor” that that they did not amount to an interference with Hixon’s visitation rights. Id. Indeed, the Court rejected Ruffalo’s reasoning which suggested that the bringing of a tortious interference of custody suit might deter illegal conduct.

Id. at 83 . The Court 7 concluded that damage suits are an undesirable remedy for a relatively minor interference with visitation rights. Overarching all of the contentions in disputes concerning custody or visitation is the best interest of the child. But a damage action for interference with the transfer of a child from custody to a visitation, or vice versa, based on words spoken, even if they are objectively hostile and belligerent, would not seem to be generally in the best interest of the child involved.

Inevitably the defense in such cases will be that the claimed interference by speaking was really an effort to protect the child from some detriment. Such issues should be resolved by the chancellor as an adjunct to jurisdiction over the child and not by a jury in the context of awarding or withholding damages between litigating adults. Id. at 83-84 (emphasis supplied). The Court concluded by stating that Hixon had “a variety of equitable remedies” available to him without adding “an additional weapon” to “the arsenals of divorced or separated parents.” Id. 2.

Lapides v. Trabbic Jeffrey Lapides had joint residential custody of his three children with Kathy Gabriel. Lapides sued Gabriel’s domestic partner, Kristen Trabbic, alleging that she interfered in his relationship with his teenage daughter, Jessica, who was living with Gabriel and Trabbic. 134 Md. App. at 54 . Lapides alleged that Trabbic’s interference, included refusing and denying him the opportunity to speak with Jessica on the telephone; interfering with his telephone calls to Jessica; making deliberate plans to interrupt his time spent with Jessica; instructing Jessica to not speak to him; directing Jessica to disregard his authority; and advising Jessica that he was not the parent responsible for disciplining her. 8 Id. at 54-55 . Among the four counts in Lapides’ complaint, was one for “[i]ntentional interference with parent/child relations.”5 Id. at 54 .

After a hearing, the circuit court granted Trabbic’s motion to dismiss and Lapides appealed to this Court. Id. at 55 . We began our analysis of Lapides’ claims by reviewing the Court of Appeals’ analysis in Hixon. Although not cited by the Court of Appeals in Hixon, nor in either of the briefs submitted in Lapides, we determined that Restatement section 699 was “critical” to fully understanding Restatement section 700, previously quoted.

Restatement section 699 states: One who, without more, alienates from its parent the affections of a child, whether a minor or of full age, is not liable to the child’s parent. Viewing both sections together, “we [saw] that under the Restatement view, an actionable tort must be predicated on proof of acts other than the mere persuasion of a child to transfer its affection from its parent.” Lapides, 134 Md. App. at 59 . We concluded that Lapides’ allegations revealed that Trabbic’s conduct was “mere persuasion.” Nevertheless, Lapides implored us to see that Trabbic’s actions were more serious and formed “a pattern of continuing intentional disruptive conduct.” Id. Still, Lapides did not assert that Trabbic “induce[d] or encourage[d] Jessica to live with her mother, rather than appellant.” Id.

We acknowledged that Lapides’ allegations were serious and could properly be the subject of a contempt action or a petition for modification 5 The other counts alleged negligence, enticement, and fraud. Lapides, 134 Md. App. at 54 . 9 of custody. However, we held that Lapides’ allegations did not “transform a family law issue into a tort claim under either existing Maryland law or precedent in other states.” Id. In reaching this conclusion, we examined cases from other jurisdictions, including Murphy v. I.S.K. Con. of New England, Inc., 571 N.E.2d 340 , cert. denied, 502 U.S. 865 , (1991), where the Massachusetts court observed that the tortious conduct referred to [in previous Massachusetts cases] includes the abduction, enticement, and harboring and secreting of minor children from their parents, or in other words, the intentional interference with parental interests or rights.

The elements of these causes of action are well established. Abduction is the physical taking of a minor child from the parent having legal custody. An action for enticement will lie where one, through an ‘active and wrongful effort’ and knowing that the parent does not consent, induces a child to leave the parent’s home. One ‘harbors’ a minor child by inducing or encouraging a child, who is away from the parent without the parent’s consent, to remain away from the parent[.] Id. at 351 (emphasis supplied) (citations omitted).

And, Stone v. Wall, 734 So.2d 1038 (Fla.1999), where the Florida Supreme Court relying, in part, on the analysis in Murphy, recognized the cause of action for interference with parent/child relations when a grandparent and others intentionally abducted the child. Id. at 1046 . Based on these cases, we held that “physical removal of the child from the custodial parent would be essential to such action.” Lapides, 134 Md. App. at 63 . Specifically, we held that the heightened “potential for injury resulting from physical removal may warrant the imposition of tort damages.” Id.

However, any lesser interference with a parent’s custodial rights would be outweighed in balancing the merits of the tort action as a deterrent to interference, and the great potential for injury to children that will result from such additional litigation. Id. We concluded that this would be the result even if Lapides’ 10 allegation was that Trabbic “induced and compelled Jessica not to reside with appellant,” because the parents had agreed that Jessica could choose which parent she wished to live with on a weekly basis. Id. at 64-65 . 3.

Khalifa v. Shannon Michael Shannon sued his ex-wife, Nermeen Khalifa Shannon, and her mother, Afaf Nassar Khalifa, in the Circuit Court for Anne Arundel County for intentional interference with custody and visitation after the mother and grandmother took the couple’s two minor sons to Egypt to live, without his knowledge. 404 Md. 112 . The mother and grandmother moved to dismiss the father’s complaint, arguing, among other things, that intentional interference with custody and visitation was not recognized in Maryland. Id. at 113 . The circuit court declined to dismiss, and the matter proceeded to a jury trial.

The jury returned a verdict exceeding $3 million in compensatory and punitive damages. Id. The mother and grandmother appealed to this Court. Before we could consider the appeal, the Court of Appeals issued a writ of certiorari.

Id. at 114 . The Court of Appeals saw its task as determining “whether the tort of interference with custody and visitation rights exists, and whether a parent, who has both legal custody and visitation rights under court order at the time of the abduction and harboring of minor children, has to plead and prove that he or she has suffered an economic loss as a result of the abduction and harboring.” Id. at 115 . The Court began its analysis with a review of the abduction and harboring children cases from the early twentieth century in Maryland and other jurisdictions. Those cases, exemplified by Baumgartner v. Eigenbrot, 100 Md. 508 (1905), recognized a tort cause of action resulting from the harboring or the abduction 11 a child from a parent or anyone having custody. “Abduction is the unlawful taking or detention by force, fraud, or persuasion of a person…a child or a ward, from the possession, custody, or control of the person legally entitled thereto.” Khalifa, 404 Md. 116 (quoting Baumgartner, 100 Md. at 513 ).

The Court