Lapides v. Trabbic

ADKINS, Judge. In this case, a father with joint custody of his teenage daughter sought tort damages from his ex-wife’s companion. Jeffrey R. Lapides, appellant, sued Kirsten Trabbic, appellee, the domestic partner of his former wife, for interfering with his parental rights and harming his relationship with his daughter. In reviewing the dismissal of appellant’s complaint, we must consider whether Maryland recognizes a tort cause of action by a parent against a third party who allegedly persuaded a child to transfer her affection from that parent.

FACTS AND LEGAL PROCEEDINGS Appellant and Kathy Gabriel (“Kathy”) were separated in April 1994, and subsequently divorced in June 1996. Before they separated, three children were born to the marriage: Jessica, born May 23, 1981; David, born June 23, 1984; and Benjamin, born June 20,1986. Appellant and Kathy’s Separation and Property Settlement Agreement (“Agreement”) was incorporated into their divorce decree. Under this Agreement, appellant and Kathy shared joint custody of their three children.

The Agreement provided that Jessica was “to choose the location where she resides on any given day.” Appellee currently resides with, and is the intimate domestic partner of Kathy. On March 1, 1999, appellant filed a complaint against appel-lee alleging: (1) “Intentional interference with parent/child relations;” (2) “Negligence;” (3) “Enticement;” and (4) “Fraud.” 1 Appellant alleged, inter alia, that appellee’s actions “included refusing and denying him the opportunity to speak with Jessica on the telephone; interfering with his ⁵⁵ 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.” Appellant prayed compensatory damages in the amount of $500,000 and punitive damages in the amount of four million dollars. Appellee filed an answer to the complaint denying the stated allegations and a subsequent motion to dismiss. After a September 27, 1999 hearing, the court dismissed the complaint without leave to amend.

Appellant timely noted this appeal. Additional facts will be added as necessary to our discussion. DISCUSSION Appellant claims that the trial court erred in dismissing his complaint. Specifically, he argues that Maryland courts have not foreclosed a claim by a custodial parent for interference with parent/child relations.

In addition, he contends that appellee owed him a duty “based on the responsibility each person has to exercise due care to avoid unreasonable risk of harm to others,” and that she breached this duty by engaging in acts that contributed to the “estrangement [of] his relationship with his daughter.” Appellant’s final claim is that he was fraudulently induced to “back off’ his claim for sole custody of his children due to his reliance on appellee’s answers regarding the nature of her relationship with Kathy during a deposition taken in appellant’s divorce case. I. Standard Of Review In considering a motion to dismiss for failure to state a cause of action, a trial court must assume the truth of all well-pleaded relevant and material facts in the complaint, as well as all inferences that reasonably can be drawn therefrom. See Odyniec v. Schneider, 322 Md. 520, 525 , 588 A.2d 786 (1991). To this end, the facts comprising the cause of action ⁵⁶ must be pleaded with sufficient specificity.

See Continental Masonry Co. v. Verdel Constr. Co., 279 Md. 476, 481 , 369 A.2d 566 (1977). Further, although the words of a pleading will be given reasonable construction, when a pleading is doubtful and ambiguous, it will b.e construed most strongly against the pleader in determining its sufficiency. See Hixon v. Buchberger, 306 Md. 72, 75 , 507 A.2d 607 (1986).

Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff. See Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624 (1995). On appeal from the granting of a motion to dismiss, this Court must determine whether the trial court was legally correct, examining solely the sufficiency of the pleading. See Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371 (1997).

II

Intentional Interference With Parent/Child Relations And Enticement Appellant contends that the trial court erred in dismissing his claims of intentional interference with parent/child relations and enticement. He posits that his allegations that appellee committed intentional acts aimed at destroying his relationship with Jessica were the equivalent of stating a claim that appellee induced Jessica to remain apart from him. Appellant asserts that “Maryland recognizes such torts” and bases his argument on Hixon v. Buchberger, supra, and the Restatement (Second) of Torts (“Restatement”) (1977) § 700. We are not persuaded that appellant has stated a claim recognizable under either the Restatement or prior Maryland decisions.

We explain. In Hixon , the fiancé of the custodial mother made “belligerent and hostile statements” to the father, Hixon. See Hixon, 306 Md. at 73 , 507 A.2d 607 . After the case was dismissed in the trial court for failure to state a claim, the Court of Appeals was called upon to “recognize as part of Maryland common law a cause of action for money damages based on intentional ⁵⁷ interference by a nonparental, noncustodial third party with the child visitation rights of a noncustodial parent.” Id.

This the Court declined to do. Hixon urged the Court to adopt a theory of law stating 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 , 507 A.2d 607 . In its discussion, the Hixon Court reviewed “cases, decided in the decades on both sides of the turn of the last century, [dealing with] that tortious interference with domestic relations known as enticement or abduction of the child.” Id. at 77 , 507 A.2d 607 . It found that these older 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.” Id.

The Hixon Court then reviewed the Restatement view 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 [sic] left him, is subject to liability to the parent.’ Id. at 78 , 507 A.2d 607 (quoting Restatement § 700). It recognized that under the more modern view stated in the Restatement, “ ‘loss of service or impairment of ability to perform service is not a necessary element of a cause of action.’ ” Id. at 77-8, 507 A.2d 607 (quoting Restatement, § 700 cmt. d). The Hixon Court did not expressly accept or reject the Restatement view of the tort, but concluded that “[o]f principal significance for present purposes is that the § 700 tort lies only at the instance of a custodial parent.” Id. at 78, 507 A.2d 607 . It expressly declined, however, to rule on Hixon’s contention that “Maryland law should not limit monetary recoveries in cases of intentional interference with parent/child relations to interferences with custody” and that “a proper ⁵⁸ 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 , 507 A.2d 607 .

After discussing cases from other jurisdictions, the Court rested its holding upon the minor nature of the interference alleged to have occurred: It is apparent from the foregoing review 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. The belligerent words described by Hixon are a' relatively minor interference. Indeed, the nature of the interference alleged here is so minor that it is doubtful whether most courts would recognize it as mounting up to a tortious interference with custody rights, remediable by damages, were the same verbal exchange to have taken place when a custodial parent might be picking up a child at the end of a visit with a noncustodial parent. Consequently we need not decide in this case whether, or, if so, under what circumstances a damage action might lie for interference with visitation rights.

We hold simply that a parent or that parent’s ally who, without committing any tort presently recognized in Maryland, speaks hostilely to the other parent about that parent’s exercise of custody or visitation rights does not thereby become liable in damages. Id. at 83 , 507 A.2d 607 . The Court further stated that it did not accept the proposition “that, because they deter (or might deter) illegal conduct, damage suits are a desirable remedy....” Id. The Court concluded that, in light of the other equitable remedies available to an aggrieved parent, “[w]e are not persuaded that an additional weapon is needed in the arsenals of divorced or separated parents to deal with harsh words passing between them over the exercise of custody or visitation rights.

There need not be a damage suit to remedy every annoyance which one encounters in life.” Id. at 84 , 507 A.2d 607 . In the present case, appellant, like Hixon, relies on Restatement § 700. Not cited by appellant, but critical to under ⁵⁹ standing the Restatement view, is the preceding section 699 of the Restatement, entitled “Alienation of Affections of Minor or Adult Child.” 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 sections 699 and 700 together, we see 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.

At best, the allegations of the present complaint only allege this type of persuasion. We explain. Appellant contends that the present case is much more egregious than Hixon in that he “has alleged much more than a single incident of belligerent remarks; rather he has described a pattern of continuing intentional disruptive conduct.” On appeal, he relies on the following conduct to support his claim: “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.” Notably, appellant does not assert in his brief that he relies on any action by appellee to induce or encourage Jessica to live with her mother, rather than appellant. The actions alleged by appellant could have serious repercussions, and would be considered by a court sitting in equity evaluating a contempt action for violation of a custody or visitation order, a petition for modification of custody or visitation under Md.Code (1984, 1999 Repl.Vol.) § 9-105 of the Family Law Article (“FL”), or similar actions.

They are not the type of actions, however, that transform a family law issue into a tort claim under either existing Maryland law or precedent in other states. Appellant has not cited any out-of-state authority to support his position, and relies only on Restatement § 700, which we ⁶⁰ have previously discussed. We have looked extensively at cases involving claims for tortious interference with parent/child relations in other jurisdictions, and find no authority recognizing a tort based on facts similar to this case. The cases that recognize the tort have generally involved instances where the custodial parent was deprived of the physical presence of the child for a continuous period because of the defendant’s actions in abducting, enticing, or assisting in the abduction or enticing of a child from that parent’s custody.

See Anonymous v. Anonymous, 672 So.2d 787, 789-90 (Ala. 1995) (holding that tort may be recognized in case involving abduction of child by male juvenile and his parents); Surina v. Lucey, 168 Cal.App.3d 589 , 214 Cal.Rptr. 509, 511-13 (1985) (abduction by uncle of child); D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520, 523-24 (Colo.1989) (recognizing the tort based on a criminal statute making it a crime to take child from his or her lawful custodian and to deprive the lawful custodian of custody of a child); Connecticut v. Vakilzaden, 251 Conn. 656 , 742 A.2d 767, 770-72 (1999) (holding that helping nephew to flee country with nephew’s daughter constitutes interference with rights of mother, who was custodial parent); Plante v. Engel, 124 N.H. 213 , 469 A.2d 1299, 1301-02 (1983) (non-custodial mother, in violation of custody order, moved child to another state); Casivant v. Greene County, 234 A.D.2d 818, 819-20 , 652 N.Y.S.2d 115 (N.Y.A.D.1996), aff'd 90 N.Y.2d 969 , 665 N.Y.S.2d 952 , 688 N.E.2d 1034 (1997) (holding that tort requires abduction); Brown v. Denny, 72 Ohio App.3d 417 , 594 N.E.2d 1008, 1011 (1991) (holding that grandparents tortiously interfered with parental relationship by taking, keeping, or harboring parent’s children); Kessel v. Leavitt, 204 W.Va. 95 , 511 S.E.2d 720, 758-59 , cert. denied, 525 U.S. 1142 , 119 S.Ct. 1035 , 143 L.Ed.2d 43 (1998) (third parties assisted in removing child to Canada for adoption against father’s rights). See also Prosser, The Law of Torts, § m (4th ed.1971). At least one case has explicitly articulated the child’s continuing physical absence from the custodial parent to be a ⁶¹ prerequisite for statement of a claim for tortious interference with parenf/child relations. See Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842 , 571 N.E.2d 340, 351 , cert. denied, 502 U.S. 865 , 112 S.Ct. 191 , 116 L.Ed.2d 152 (1991).

In Murphy , the Massachusetts court summarized the common law basis for the tort: ‘The common law has traditionally recognized a parent’s interest in freedom from tortious conduct harming his relationship with his child,’ and the parent ‘may be compensated therefor when there is interference with the normal parent-child relationship.’ 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.... Implicit in each action is the requirement that the child be physically absent from the home for a continuous period of time. To allow recovery for interference with parental interests without physical absence of the minor child from the home would be to allow an action for alienation of affections, for which recovery cannot be had. Id. at 351, 571 N.E.2d 340 (citations omitted).

Relying, in part, on Murphy , the Supreme Court of Florida, in a recent decision of first impression, recognized the cause of action for interference with parent/child relations when a grandparent and others intentionally abducted the child. See Stone v. Wall, 734 So.2d 1038 (Fla.1999). 2 In its opinion, the ⁶² Florida court distinguished the latter tort from the historical tort of alienation of affections, which had been abolished by-statute. 3 See id. at 1046 . It also reasoned that “[i]t is obviously in the best interests of children to be returned promptly to their legal custodians.” Id. Quoting the Iowa Supreme Court, it said: A tort suit will be more likely to effect a speedy return of the child; it will result in better cooperation by potential third-party defendants seeking to avoid the suit; ... and increased knowledge of a child’s whereabouts will result through the broad scope of civil-case discovery.

Id. (quoting Wood v. Wood, 338 N.W.2d 123, 127 (Iowa 1983)). Finally, the Florida Supreme Court justified the risk that children may be injured by such litigation concerning them, by balancing that risk against the greater injury that may result when children are removed from their legal caretakers: While the courts must be constantly vigilant to guard against the misuse of the legal process, those who would bypass the legal system by taking children from those who have a superior right to legal custody cause a far greater affront to our system of justice. Such conduct has the ⁶³ potential for causing far greater harm to the children than litigation.

Id. at 1046. Were Maryland to recognize an action for tortious interference with parent/child relations, we think that physical removal of the child from the custodial parent would be essential to such action. The great potential for injury resulting from such physical removal may warrant the imposition of tort damages. Any lesser interference with a parent’s custodial rights would be outweighed in the balancing between the merits of the tort action as a deterrent to interference, and the great potential for injury to children that will result from additional litigation involving the children.

The potential for such injury was best articulated by the Supreme Court of Minnesota in Larson v. Dunn, 460 N.W.2d 39 (Minn.1990): Children of divorce generally love their parents and want a loving and helpful relationship with both parents once the marriage is dissolved. With this tort, a child may be forced to testify against his or her own mother or father. One can only imagine the torment of a young child forced to testify in writing or verbally against a parent he or she loves.... Evidence is piling up that children can be devastated by divorce, and their continuing development can be detrimentally affected by subsequent events....

For the good of our children, the law should seek to promote such harmony as is possible in families fractured by the dissolution process. At a minimum, the law should not provide a means of escalating intra family warfare. Id. at 45-6 (citations' omitted). 4 Our discussion to this point has been based on the assumption that appellee’s alleged actions did not cause the removal of Jessica’s physical presence from appellant’s care and con ⁶⁴ trol to her mother’s care and control. As previously indicated, we interpret appellant’s arguments in this appeal to rely solely on allegations made in the complaint that