Hixon v. Buchberger

RODOWSKY, Judge. After the trial court held that his complaint failed to state a claim, the petitioner asked us to recognize as part of Maryland common law a cause of action for money damages based on intentional interference by a nonparental, noncustodial third party with the child visitation rights of a noncustodial parent. The intentional interference alleged here is primarily belligerent and hostile statements made to the petitioner, Jonathan D. Hixon (Hixon). We agree that his complaint does not state a damage claim.

Our explanation follows. Hixon’s visitation rights were judicially declared in a kind of reverse paternity action brought by him, as putative father, in the Circuit Court for Montgomery County against Linda A. Liebelt (Liebelt), who had borne a child out of ⁷⁴ wedlock. 1 A consent decree in that case, dated August 13, 1984, recited that the results of certain biomedical laboratory tests indicated the probability that Hixon was the father of the child. The court declared, inter alia, that Hixon was the father, that the child’s name was to be David Charles Hixon, that Liebelt was to have custody, and that Hixon had specified visitation rights. Following this decree Liebelt and the child resided with the respondent, Paul Buchberger (Buchberger).

Liebelt subsequently married Buchberger who was Liebelt’s fiancee at the time of the alleged interference with visitation. In his complaint filed November 28, 1984, the heart of Hixon’s allegations describing the interferencé is [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. These allegations are at best ambiguous.

Literally they describe a single incident occurring on November 16, 1984, at which Buchberger “made it difficult for [Hixon] to physically take his child with him.” Hixon does not aver that Buchberger actually prevented him from taking the child with him. Additionally, Hixon alleges that “at times the Defendant flatly refused to surrender the child to [Hixon].” If the intent of the pleader were thereby to ⁷⁵ allege that on other occasions (“times”) Hixon was actually prevented from taking the child with him by Buchberger’s flat refusals to surrender the child, it would be unusual pleading to emphasize one incident of November 16 when the interference resulted only in the exercise of visitation rights being made “difficult,” whereas interferences on other occasions prevented any visitation at all. Under these circumstances we apply the rule that ambiguities in the pleading are to be construed against the pleader. See Read Drug and Chemical Co. v. Colwill Construction Co., 250 Md. 406, 416 , 243 A.2d 548, 555 (1968).

Consequently we interpret the complaint’s references to flat refusals as specifying types of hostile statements made in the course of the confrontation on November 16. Hixon further alleged that Buchberger’s conduct made it obvious that Buchberger intended to supplant Hixon in the child’s mind as the child’s father. Buchberger’s actions were characterized as “malicious and committed in an outrageous, hostile and belligerent manner, calculated to put [Hixon] in fear for his safety.” To compensate him for this interference with his visitation rights Hixon seeks $10,000. To vindicate a perceived societal interest in punishing and deterring the conduct described, Hixon asks that Buchberger be ordered to pay him $75,000 in punitive damages.

Hixon also demands a jury trial. The complaint in this case was filed in two counts. The first count, seeking an injunction, was dismissed by the trial court, with leave to amend, at the conclusion of oral argument on Buchberger’s motion and that count was abandoned on appeal. The second count, claiming a tort by way of interference with visitation rights, was taken under advisement and subsequently dismissed without any express grant or denial of leave to amend.

Hixon never sought leave to amend count II from the trial court. We issued the writ of certiorari prior to the consideration of Hixon’s appeal by the Court of Special Appeals. ⁷⁶ At oral argument before this Court Hixon’s counsel reviewed the facts. That description confirms that the allegations, as interpreted above, are the facts on which Hixon relies. We were told: Sometime in November of 1984, I believe, an incident which was, I understand, typical of the relationship generally, but a particularly grievous incident took place where Mr. Hixon attempted to exercise visitation rights and the defendant overtly interfered with it by making a number of abusive statements to the child who was approximately two years old at the time, I believe, and to the effect that Hixon was not the father of the child, ... physically restrained the child, and threatened physical violence against Mr. Hixon and this was all set forth in the complaint.

Thereafter the filing—the complaint was filed, by the way, roughly twelve days after this particular incident took place. During oral argument Hixon’s counsel never categorically represented that Buchberger prevented Hixon from visiting with his child on the occasion of this “particularly grievous incident.” Buchberger’s counsel, on the other hand, both in brief and at oral argument emphasized that the allegations refer to a single incident and that they fail to state that the visit was prevented on that occasion. Consequently we view the alleged interference as consisting primarily of belligerent and hostile statements. We begin our analysis by emphasizing what this case does not present.

Hixon does not contest the dismissal of his claim for an injunction. We are not concerned with whether Liebelt violated the consent decree or with whether a proceeding for contempt would be available against her. 2 Nor does Hixon raise the question of whether knowing and intentional interference by Buchberger with Hixon’s court-ordered visitation could be the basis for an application for contempt by Hixon against Buchberger directly. Cf Fed.R. ⁷⁷ Civ.P. 65(d) (“Every order granting an injunction ... is binding only upon the parties to the action ... and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”). While Hixon’s point is that Buchberger’s conduct is a tort for which money damages will lie, Hixon does not allege that the interference constituted an assault or a battery.

The complaint does not undertake to describe conduct which is “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,’ ” Harris v. Jones, 281 Md. 560, 567 , 380 A.2d 611, 614 (1977) (quoting Restatement (Second) of Torts § 46 comment d (1965)), and Hixon does not argue that Buchberger committed an intentional infliction of emotional distress. Our decisions involving interference with the relationship between parent and child do not assist Hixon’s position. These cases, decided in the decades on both sides of the turn of the last century, dealt with that tortious interference with domestic relations known as enticement or abduction of a child. See generally Prosser and Keeton on the Law of Torts, § 124, at 924-25 (W.P. Keeton 5th ed. 1984).

Those Maryland cases state the prerequisites of that tort to be that the parent have the right to custody and that actual service have been rendered by the child to the parent which the parent lost due to the abduction, enticement, or harboring by the defendant. See Kenney v. Baltimore and Ohio Railroad Co., 101 Md. 490 , 61 A. 581 (1905) (suit dismissed for insufficient evidence of enticement or service); Baumgartner v. Eigenbrot, 100 Md. 508 , 60 A. 601 (1905) (insufficient evidence of abduction and harboring where minor child left voluntarily to stay with relative); and Loomis v. Deets, 30 A. 612 (Md.1894) (insufficient evidence of enticement or harboring). Under the rules for this tort espoused in Restatement (Second) of Torts (1977), “loss of service or impairment of ability to perform service is not a necessary element of a ⁷⁸ cause of action.” § 700 comment d. The general rule there formulated is that [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.

Under § 700 a custodial parent who suffers the tort can 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. Comment g. Of principal significance for present purposes is that the § 700 tort lies only at the instance of a custodial parent. Comment c underscores that requirement.

In part it reads that “[w]hen 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.” The corollary to the foregoing rule is that “[o]ne 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.” Comment c. Illustrative of the rules found in Restatement § 700 are DiRuggiero v. Rodgers, 743 F.2d 1009 (3d Cir. 1984); Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.), aff'g, 539 F.Supp. 998 (E.D.Wis.1982); Bennett v. Bennett, 682 F.2d 1039 (D.C.Cir.1982); Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir. 1980); Hinton v. Hinton, 436 F.2d 211 (D.C.Cir.1970); Wood v. Wood, 338 N.W.2d 123 (Iowa 1983); Kipper v. Vokolek, 546 S.W.2d 521 (Mo.App.1977); and Brown v. Brown, 338 Mich. 492 , 61 N.W.2d 656 (1953), cert. denied, 348 U.S. 816 , 75 S.Ct. 27 , 99 L.Ed. 644 (1954). Cf. Kajtazi v. Kajtazi, 488 F.Supp. 15 (E.D.N.Y.1978) (Where the court hearing a divorce action between parents had awarded to the mother pendente lite custody of their son whom the father abducted and took to Yugoslavia, it was held under New York law that the mother could recover damages from ⁷⁹ accomplices of the father on the theory of intentional infliction of emotional distress.).

Hixon contends that Maryland law should not limit monetary recoveries in cases of intentional interference with parent-child relations to interferences with custody. He urges 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. Hixon sees support for his position in the cases reviewed below because, although they are not uniform with regard to the