Koestler v. Pollard

471 N.W.2d 7, 162 Wis. 2d 797, 1991 Wisc. LEXIS 477

• Court: Wisconsin Supreme Court
• Decided: June 19, 1991
• Docket: 90-1004
• Status: Published

Opinions

LOUIS J. CECI, J.

This case is before the court on certification from the court of appeals, pursuant to sec. (Rule) 809.61, Stats. The plaintiff, Richard J. Koestler, Jr. (Koestler), commenced this action against Donald E. Pollard (Pollard), seeking damages for the intentional infliction of emotional distress. Koestler alleged that Pollard intentionally concealed from him the fact that Pollard was the biological father of a child born to Koestler's wife during their marriage and revealed said fact after Koestler developed a bond with the child.

Koestler appeals from the decision and order of the circuit court for Waukesha county, Willis J. Zick, Circuit Judge, dismissing the action. In granting the motion to dismiss, the circuit court reasoned that the legislature intended to abolish claims such as Koestler's when it abolished actions for criminal conversation and alienation of affection.¹

One issue is presented by this review — whether a complaint alleging the following states a claim for relief: (1) the defendant intentionally concealed from the plaintiff the fact that the defendant is the biological father of a child born to the plaintiffs wife during their marriage, and (2) the defendant revealed the child's paternity after the plaintiff developed a bond with the child. We hold that a complaint which alleges the facts necessary to state a claim for criminal conversation does not state a claim for relief even if it alleges additional facts which need not be alleged to state a claim for criminal conversation. Accordingly, we conclude that Koestler's complaint fails to state a claim upon which relief may be granted.

The facts relevant to this appeal are not in dispute. On June 14, 1989, Koestler commenced this action. Koestler alleged, inter alia, that while he was married to Vickie Lynn Koestler, Pollard engaged in sexual intercourse with Vickie which resulted in the birth of a child, C.K., in 1983. Koestler further alleged that Pollard knew he was the biological father of C.K. but intentionally caused this information to be kept from Koestler until June 17,1987. As a result of the initial concealment and eventual disclosure of the paternity of C.K., Koestler alleged that he suffered an extreme and disabling emotional response which disturbed his relationship with C.K. and with his other child.

On August 23, 1989, Pollard moved the court to dismiss Koestler's complaint for failure to state a claim upon which relief may be granted. Pollard argued that public policy bars Koestler's claim.

The circuit court heard Pollard's motion to dismiss on March 9,1990. By order entered March 27,1990, the circuit court granted Pollard's motion to dismiss. In granting the motion, the circuit court reasoned that the legislature intended to abolish Koestler's claim when it abolished claims for criminal conversation and alienation of affection.

Koestler appealed from the decision of the circuit court, and the court of appeals certified the appeal to this court.

Whether a complaint states a claim upon which relief may be granted is a question of law which we decide independently and without deference to the decisions of lower courts. Blue Cross v. Fireman's Fund, 140 Wis. 2d 544, 548, 411 N.W.2d 133 (1987). In reviewing the grant of a motion to dismiss for failure to state a claim upon which relief may be granted, we take the facts stated in the complaint as true. Id. at 546.

As Koestler's counsel admitted at oral argument, the facts alleged in Koestler's complaint include those facts which constitute the basis for a claim of criminal conversation. Therefore, Koestler's claim is barred by the legislature's abolition of claims for criminal conversation. Moreover, the public policy underlying the legislature's abolition of claims for criminal conversation dictates that the courts should not administer heart balm in the form of civil liability.

At common law, a spouse could bring an action for criminal conversation against a third party who engaged in adultery with the spouse's marriage partner. The plaintiff in an action for criminal conversation had to prove the following facts:

(1) an actual marriage between the spouses, and

(2) sexual intercourse between the defendant and the guilty spouse during coverture [marriage].

Schneider v. Místele, 39 Wis. 2d 137, 140, 158 N.W.2d 383 (1968). Koestler's complaint alleges the following facts:

(1) an actual marriage between Koestler and Vickie Lynn Koestler;

(2) sexual intercourse between Pollard and Vickie Lynn Koestler during the Koestlers' marriage;

(3) the birth of a child, C.K., during the marriage as a result of the aforementioned sexual intercourse; and

(4) the initial concealment and eventual disclosure of the fact that Pollard is the biological father of C.K.²

The first two facts contained in Koestler's complaint are identical to the facts necessary to plead and prove a claim for criminal conversation. Moreover, the third fact contained in Koestler's complaint, the birth of a child, is a natural and probable consequence of the second fact contained in Koestler's complaint, sexual intercourse. Finally, the fourth fact contained in Koestler's complaint, concealment and eventual disclosure of the paternity of the child born as a result of the adulterous intercourse, is undoubtedly a common occurrence in cases of criminal conversation which result in pregnancy.

While the third and fourth facts contained in Koestler's complaint are not essential to a claim for criminal conversation, they all flow directly from the facts constituting criminal conversation which are alleged in Koestler's complaint. Therefore, Koestler's complaint in essence states a claim for criminal conversation and is barred by sec. 768.01, Stats.³ To hold otherwise would violate the legislature's directive that ch. 768, Stats., should be liberally construed⁴ and would subvert the policies underlying sec. 768.01. Furthermore, Koestler's claim violates public policy because claims such as his embroil the courts in disputes in which judicial intervention is inappropriate.

When it enacted ch. 768, the legislature provided in sec. 768.08 that "[t]his chapter shall be liberally construed to effectuate the object thereof." The court of appeals decision in Prill v. Hampton, 154 Wis. 2d 667, 453 N.W.2d 909 (Ct. App. 1990), illustrates just how liberally the provisions of ch. 768 should be construed. In Prill, one of the plaintiffs argued that she should be permitted to prove that her husband's injuries caused their divorce. Id. at 681.

The court of appeals rejected the wife's contention that she had a claim for "wrongful divorce" because it was "essentially an alienation of affections claim." Id.5 The court of appeals reached this conclusion despite the fact that the wife's claim was based on the negligent conduct of the defendant, and alienation of affection claims, when they were allowed, were based on the defendant's intentional interference in the marital relationship.⁶ If sec. 768.01 bars a negligence claim even though it expressly abolishes only intentional torts, it should be liberally construed to bar claims which allege that a criminal conversation produced a child whose paternity was intentionally kept from the innocent spouse, since it expressly abolishes criminal conversation actions.

Furthermore, if Koestler can evade the provisions of sec. 768.01 simply by pleading facts which naturally flow from the facts that constitute criminal conversation, sec. 768.01 will be destroyed by artful pleading. No just or sensible distinction could be drawn between complaints that allege criminal conversation and, therefore, are barred by sec. 768.01 and complaints that allege the facts of criminal conversation and enough additional facts to evade sec. 768.01's prohibition. For example, if we hold that sec. 768.01 does not bar Koestler's complaint, a plaintiff could state a claim for intentional infliction of emotional distress by alleging that an extramarital affair was carried on in a public manner with the intent of inflicting emotional distress upon him or her. Such a claim is clearly the type of claim the legislature intended to abolish by enacting sec. 768.01 and by providing that it should be liberally construed.

Moreover, the policy underlying sec. 768.01 would be subverted if a plaintiff could state a claim for relief simply by alleging facts in addition to the elements of criminal conversation. As one court noted when rejecting claims for the intentional infliction of emotional distress arising out of adulterous conduct:

Assuming that [the] law now permits 'recovery for the intentional infliction of mental distress without proof of the breach of any duty other than the duty to refrain from inflicting it' . . ., strong public policy considerations militate against judicially applying these recent developments in this area of the law to the factual context of a dispute arising out of matrimonial differences. To sustain the claim for damages would result in a revival of evils not unlike those which prompted the Legislature in 1935 to outlaw actions for alienation of affections and criminal conversation . . ..

Weicker v. Weicker, 22 N.Y.2d 8, 11, 237 N.E.2d 876, 876-77, 290 N.Y.S.2d 732, 733-34 (1968) (citations omitted).

The evils that legislatures and courts intended to eliminate by outlawing claims of criminal conversation included the harm that claims for criminal conversation:

afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement.

W. Prosser & W. Keeton, The Law of Torts, sec. 124 at 929 (5th ed. 1984) [hereinafter The Law of Torts]. The evil of using the threat of publicity to extort settlements is not diminished simply because the plaintiff is seeking recovery under the label of emotional distress instead of the label of criminal conversation when, as in the case at bar, the facts alleged in a complaint for the former are nearly identical to the facts that would be alleged in a complaint for the latter.

Another evil which prompted legislatures and courts to abolish claims for alienation of affection and criminal conversation was that "even genuine actions of this type [alienation of affection and criminal conversation] [were] brought more frequently than not with purely mercenary or vindictive motives . . .." The Law of Torts, sec. 124 at 929. The risk of this evil is even greater in cases such as the one at bar when a child is born as a result of the criminal conversation.⁷

Furthermore, the type of injury for which Koestler seeks to recover is not the type of injury for which the law can, or should, provide a remedy. Therefore, public policy bars Koestler's claim. In Richard P. v. Superior Court, 202 Cal. App. 3d 1089, 249 Cal. Rptr. 246 (1988), the court dismissed on public policy grounds a complaint that alleged the same facts and stated the same claim as Koestler's complaint in the case at bar. The Richard P. court's analysis illustrates why claims such as Koestler's should not be allowed:

We agree with real parties in interest [the parties who stood in Koestler's position] that they have alleged words which normally would suffice to state [a] tort [cause] of action for . . . intentional infliction of emotional distress. We feel that the subject matter of the action, however, is not one in which it is appropriate for the courts to intervene. 'Broadly speaking, the word "tort," means a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages. It does not lie within the power of any judicial system, however, to remedy all human wrongs. There are many wrongs which in themselves are flagrant. For instance, such wrongs as betrayal, brutal words, and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law. ... To attempt to correct such wrongs or give relief from their effects "may do more social damage than if the law leaves them alone." ' . . .

We conclude here that any wrong which has occurred as a result of Richard's [the party who stood in Pollard's position] actions is not one which can be redressed in a tort action. We do not doubt that this lawsuit emanated from an unhappy situation in which the real parties in interest suffered grief. We feel, however, that the innocent children here may suffer significant harm from having their family involved in litigation such as this and that this is exactly the type of lawsuit which, if allowed to proceed, might result in more social damage than will occur if the courts decline to intervene. 'We do not believe the law should provide a basis for such interfamilial warfare.'

Id. at 202 Cal. App. 3d at 1093-94, 249 Cal. Rptr. at 249 (citations omitted).

We are persuaded by the Richard P. court's analysis. Public policy bars Koestler's claim because more harm than good will result if Koestler is allowed to pursue this action.⁸ Moreover, Koestler's claim is barred by the policies underlying sec. 768.01, if not by sec. 768.01 itself, because allowing claims such as Koestler's will result in many of the evils which occurred when claims for criminal conversation were allowed.

By the Court — The decision and order of the circuit court are affirmed.

1 Section 768.01, Stats., provides:

768.01 Actions for breach of promise, alienation of affection and criminal conversation abolished. All causes of action for breach of contract to marry, alienation of affections and criminal conversation are hereby abolished, except that this section shall not apply to contracts now existing or to causes of action which heretofore accrued.

2 Koestler's complaint also includes allegations which go to the issue of damages.

3 The analysis of Koestler's complaint and the facts necessary to state a claim for criminal conversation set forth above illustrate that, contrary to Koestler's assertions, his complaint is an attempt to "end-run" sec. 768.01 which arises from marital misconduct. Without the alleged marital misconduct, Koestler's wife could not have given birth to a child of whom Koestler was not the biological father, and Pollard would not have had anything to conceal.

4 The authorities cited by Koestler do not support his conclusion that sec. 768.01 should be strictly construed. Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983), involved the public policy exception to the employment at will doctrine and, therefore, does not apply to the case at bar. Contrary to Koestler's assertions, Brown v. Thomas, 127 Wis. 2d 318, 379 N.W.2d 868 (Ct. App. 1985), does not compel this court to strictly construe sec. 768.01 for two reasons. First, the Brown court overlooked sec. 768.08's provision that ch. 768 should be liberally construed. Second, Brown predates Prill v. Hampton, 154 Wis. 2d 667, 453 N.W.2d 909 (Ct. App. 1990), which suggests that a liberal construction of sec. 768.01 is appropriate for the reasons set forth below. Furthermore, the doctrine of inclusio unius est exclusio alterius does not apply to the case at bar because we are not creating an exception to sec. 768.01. Rather, pursuant to sec. 768.08, we are liberally construing sec. 768.01 to effectuate the policies underlying same.

5 The court of appeals also rejected the wife's claim for wrongful divorce on public policy grounds, to wit, the difficulty in determining what causes a marriage to fail, as well as the fact that such an inquiry would open to scrutiny very personal issues. Id. However, the Prill court noted that the two reasons (public policy and sec. 768.01) for its decision were interrelated when it stated that ”[t]he same public policy reasons supporting the legislature's abolition of these claims [alienation of affections] also support denial of [the wife's] claim for wrongful divorce." Id. at 681-82. Thus, Prill recognizes that the policy behind sec. 768.01 is broader than the precise terms of sec. 768.01 and that public policy may bar claims that do not fall precisely within the categories of actions abolished by the statute.

6 W. Prosser & W. Keeton, The Law of Torts, sec. 124 at 919 n.42, 920 (5th ed. 1984).

7 The motivations for abolishing actions for criminal conversation set forth in The Law of Torts illustrate that, contrary to Koestler's assertion, the legislative history surrounding statutes such as sec. 768.01 suggests that intentional infliction of emotional distress actions which emulate actions for criminal conversation should be barred. Otherwise, as discussed above, all the evils which the legislature intended to eliminate will return. Moreover, our legislature expressly provided in sec. 768.08 that ch. 768 should be liberally construed.

8 Contrary to Koestler's assertion, whether the circuit court based its decision on sec. 768.01 alone or on sec. 768.01 and public policy is irrelevant. We may affirm a lower court's decision on different grounds than those relied upon by the lower court. See Saenz v. Murphy, 162 Wis. 2d 54, 57 n.2, 469 N.W.2d 611 (1991). Furthermore, the question of public policy has been fully argued and briefed before this court.