Twyman v. Twyman

855 S.W.2d 619, 61 U.S.L.W. 2748, 36 Tex. Sup. Ct. J. 827, 1993 Tex. LEXIS 59, 1993 WL 141139

• Court: Texas Supreme Court
• Decided: May 5, 1993
• Docket: D-0184
• Status: Published

Opinions

OPINION

CORNYN, Justice.

In this case we decide whether a claim for infliction of emotional distress can be brought in a divorce proceeding. Because the judgment of the court of appeals is based on negligent infliction of emotional distress, and cannot be affirmed on that or any other basis, we reverse the judgment of that court and remand this cause for a new trial in the interest of justice. Tex. R.App.P. 180. We deem a new trial appropriate because of our recent decision that no cause of action for negligent infliction of emotional distress exists in Texas. Today, however, we expressly adopt the tort of intentional infliction of emotional distress, and hold that such a claim can be brought in a divorce proceeding.

I.

Sheila and William Twyman married in 1969. Sheila filed for divorce in 1985. She later amended her divorce petition to add a general claim for emotional harm without specifying whether the claim was based on negligent or intentional infliction of emotional distress. In her amended petition, Sheila alleged that William “intentionally and cruelly” attempted to engage her in “deviate sexual acts.” ¹ Following a bench trial, the court rendered judgment dissolving the marriage, dividing the marital estate, awarding conservatorship of the children to Sheila, ordering William to pay child support, and awarding Sheila $15,000 plus interest for her claim for emotional distress. William appealed that portion of the judgment based on emotional distress, contending that interspousal tort immunity precluded Sheila’s recovery for negligent infliction of emotional distress. The court of appeals affirmed the judgment, holding that Sheila could recover for William’s negligent infliction of emotional distress. 790 S.W.2d 819.

While this case has been pending, we have refused to adopt the tort of negligent infliction of emotional distress. See Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993). Thus the judgment of the court of appeals cannot be affirmed. We consider, therefore, whether the court of appeals’ judgment may be affirmed on alternative grounds. Because Sheila’s pleadings alleging a general claim for emotional harm are broad enough to encompass a claim for intentional infliction of emotional distress, we consider whether the trial court’s judgment may be sustained on that legal theory.

While this court has never expressly recognized the tort of intentional infliction of emotional distress, we found no reversible error in the court of appeals’ opinion in Tidelands Automobile Club v. Walters, which did so. 699 S.W.2d 939 (Tex.App.-Beaumont 1985, writ ref’d n.r.e.). There, the court of appeals adopted the elements of the tort as expressed in the Restatement (Second) of Torts § 46 (1965). The Restatement elements of intentional infliction of emotional distress are: 1) the defendant acted intentionally or recklessly, 2) the conduct was extreme and outrageous, 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the emotional distress suffered by the plaintiff was severe. Id. According to the Restatement, liability for outrageous conduct should be found “only where the conduct has been 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.” Id. cmt. d. Of the forty-six states that have recognized this tort, forty-three have adopted this Restatement formulation.² The other three states, although not adopting the Restatement definition, require the equivalent of “outrageous” conduct.³ Today we become the forty-seventh state to adopt the tort of intentional infliction of emotional distress as set out in § 46(1) of the Restatement (Second) of ToRts.

We do not, however, adopt this tort only because of its broad acceptance in jurisdictions throughout the United States. As distinguished from the tort of negligent infliction of emotional distress, we believe the rigorous legal standards of the Restatement formulation of intentional infliction of emotional distress help to assure a meaningful delineation between inadvertence and intentionally or recklessly outrageous misconduct. The requirements of intent, extreme and outrageous conduct, and severe emotional distress before liability can be established will, we think, strike a proper balance between diverse interests in a free society. That balance, at minimum, must allow freedom of individual action while providing reasonable opportunity for redress for victims of conduct that is determined to be utterly intolerable in a civilized community.

This holding represents a middle ground between the polar positions adopted by various members of the court.⁴ JUSTICE HECHT, joined by JUSTICE ENOCH, in arguing against our express adoption of the tort of intentional infliction of emotional distress, maintains that judges and juries are guided by insufficient standards, that liability may be imposed arbitrarily, that reported cases either supporting or refusing to support an award of damages disclose no uniform patterns, and that the sensitivities of aggrieved people are entirely too subjective and unpredictable. We disagree, and believe that such objections could just as easily be made to well-established causes of action in Texas. For example, one might also contend that the legal standards for ordinary negligence are vague, and that juries must necessarily rely on their own notions of fault. Because jurors’ ideas about what is “ordinary” and “reasonable” may vary, the same arguments about lack of uniformity, unpredictability, and personal sensitivities could be made. Yet just as we trust juries to decide questions of negligence, proximate cause, and damages, when guided by appropriate legal standards we think them equally capable of resolving factual disputes giving rise to the tort of intentional infliction of emotional distress.

JUSTICE SPECTOR, joined by JUSTICE DOGGETT, on the other hand, agrees with us that this tort should be adopted, but uses this case as another opportunity to question the wisdom of our decision in Boyles, in which we refused to adopt the tort of negligent infliction of emotional distress. They join some amici curiae⁵ in implying that the court has disregarded the tort’s unique role in addressing women’s psychic injuries. One need only identify those who have brought claims for negligent infliction of emotional distress, however, to dispel the suggestion that women will be disproportionately affected. • Of the thirty-four Texas appellate cases in which a claim for negligent infliction of emotional distress was alleged,⁶ thirteen were brought by women,⁷ twelve were brought by men,⁸ seven by husbands and wives jointly,⁹ one by an executrix on behalf of an estate,¹⁰ and one by a corporation.¹¹ These cases demonstrate that the tort has been alleged by litigants in a wide variety of circumstances. There is simply no factual or legal basis for the suggestion that by choosing not to recognize this particular tort, the court demonstrates insensitivity to female claimants.

JUSTICE SPECTOR also argues that because of our refusal to recognize the tort of negligent infliction of emotional distress some wrongs will go uncompensated because of the difficulty in proving the actor’s intent when the actor intends nothing more than to satisfy his own desires. Infra, 855 S.W.2d at 644. But in Sheila Twy-man’s case, and in countless other cases involving both men and women, we believe that our adoption of the Restatement formulation of the tort of intentional infliction of emotional distress provides a reasonable opportunity for redress for outrageous conduct.

Of course, rarely will a defendant admit knowing of a substantial certainty that emotional harm would befall the victim. Juries, however, are free to discredit the defendant's protestations that no harm was intended and to draw necessary inferences to establish intent. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Fichtner v. Richardson, 708 S.W.2d 479, 483 (Tex.App.—Dallas 1986, writ ref’d n.r.e.) (“The jury may believe all, part, or none of the testimony in arriving at the finding it concludes is the most reasonable”); see also Walters v. American States Ins. Co., 654 S.W.2d 423, 426 (Tex.1983) (holding that jury is free to make a reasonable inferential leap based on evidence). Ironically, for JUSTICE SPECTOR to argue in favor of applying a negligence standard to this case is to argue that as a matter of law the emotional harm William caused was foreseeable but not substantially certain to occur.¹² We disagree with that characterization and believe that on retrial the factfinder should be permitted to consider whether William knew with substantial certainty that his actions would probably cause Sheila emotional harm.

Moreover, Section 46 of the Restatement definition of the tort expressly includes situations in which the actor recklessly inflicts emotional distress. An actor is reckless when he “knows or has reason to know ... of facts which create a high degree of risk of ... harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to that risk.” Restatement (Second) § 500, cmt. a. Again, on retrial, the jury may consider whether William acted recklessly toward Sheila.

II.

We now consider whether the cause of action for intentional infliction of emotional distress may be brought in a divorce proceeding.¹³ In Bounds v. Caudle, this court unanimously .abolished the doctrine of interspousal immunity for intentional torts. 560 S.W.2d 925 (Tex.1977). Ten years later, we abrogated interspousal immunity “completely as to any cause of action,” ¹⁴ including negligence actions for personal injuries. Price v. Price, 732 S.W.2d 316, 319 (Tex.1987). Under the rules established in Caudle and Price, there appears to be no legal impediment to bringing a tort claim in a divorce action based on either negligence or an intentional act such as assault or battery.¹⁵

The more difficult issue is when the tort claim must be brought and how the tort award should be considered when making a “just and right” division of the marital estate. See Tex.Fam.Code § 3.63(b). Of the states that have answered this question, several have held that the tort case and the divorce case must be litigated separately. See e.g. Walther v. Walther, 709 P.2d 387, 388 (Utah 1985); Windauer v. O’Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Simmons v. Simmons, 773 P.2d 602, 605 (Colo.Ct.App.1988). Other states require joinder of the two actions. See, e.g. Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189, 1196 (1979); Weil v. Lammon, 503 So.2d 830, 832 (Ala.1987).

We believe that the best approach lies between these two extremes. As in other civil actions, joinder of the tort cause of action should be permitted,¹⁶ but subject to the principles of res judicata.¹⁷ See Barr v. The Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992) (reaffirming the transactional approach to res judicata analysis). See also Tex.R.Civ.P. 51; Henriksen v. Cameron, 622 A.2d 1135 (Me.1993). Of course, how such claims are ultimately tried is within the sound discretion of the trial court. See Tex.R.Civ.P. 174. But join-der of tort claims with the divorce, when feasible, is encouraged. Resolving both the tort and divorce actions in the same proceeding avoids two trials based at least in part on the same facts, and settles in one suit “all matters existing between the parties.” ¹⁸ Mogford, 616 S.W.2d at 940 (citing Parkhill Produce Co. v. Pecos Valley S. Ry., 348 S.W.2d 208, 209 (Tex.Civ.App.—San Antonio 1961) writ ref'd n.r.e. per curiam, 163 Tex. 88, 352 S.W.2d 723 (1961)).

When a tort action is tried with the divorce, however, it is imperative that the court avoid awarding a double recovery.¹⁹ When dividing the marital estate, the court may take into account several factors, including the fault of the parties if pleaded. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). The trial court may also consider “such factors as the spouses’ capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature to the property.” Id. See also Young v. Young, 609 S.W.2d 758, 761 (Tex.1980); Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974). However, a spouse should not be allowed to recover tort damages and a disproportionate division of the community estate based on the same conduct. Therefore, when a factfin-der awards tort damages to a divorcing spouse, the court may not consider the same tortious acts when dividing the marital estate. Contrary to CHIEF JUSTICE PHILLIPS’ contention, an award for tor-tious conduct does not replace an analysis of the remaining factors to be considered when the trial court divides the marital estate. 855 S.W.2d at 626 (Phillips, C.J., dissenting). The court may still award a disproportionate division of property for reasons other than the tortious conduct. To avoid the potential problem of double recovery, the factfinder should consider the damages awarded in the tort action when dividing the parties’ property. If a jury is used to render an advisory division of the parties’ estate, the judge should limit, by appropriate instruction, the jury’s consideration of the alleged tortious acts and later consider the award of damages in determining a just and right division of the marital estate.²⁰

Sheila Twyman cannot recover based on the findings of fact made by the trial court in this case.²¹ It is likely, however, that this case proceeded on a theory of negligent infliction of emotional distress in reliance on this court’s holding in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), which we recently overruled. See Boyles v. Kerr, 855 S.W.2d 593 (Tex.1992). As we noted in Boyles, this court has broad discretion to remand for a new trial in the interest of justice when it appears that a case proceeded under the wrong legal theory, and when it appears that the facts when developed on retrial may support recovery on an alternative theory. Id. at 603. See also American Title Ins. Co. v. Byrd, 384 S.W.2d 683 (Tex.1964); Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951). When, as here, a party presents her case in reliance on precedent that has been recently overruled, remand is appropriate. See Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966). Therefore, in the interest of justice, we reverse the judgment of the court of appeals and remand this cause to the trial court for a new trial.

Concurring opinion by Justice GONZALEZ. Concurring and Dissenting opinion by Chief Justice PHILLIPS. Concurring and Dissenting opinion by Justice HECHT joined by Justice ENOCH. Dissenting opinion by Justice SPECTOR joined by Justice DOGGETT. (Justice GAMMAGE not sitting)

1 . At trial, Sheila testified that William pursued sadomasochistic bondage activities with her, even though he knew that she feared such activities because she had been raped at knife-point before their marriage. The trial court found that William “attempted to emotionally coerce [Sheila] in 'bondage' on an ongoing basis ...” and "engaged in a continuing course of conduct of attempting to coerce her to join in his practices of ‘bondage’ by continually asserting that their marriage could be saved only by [Sheila] participating with him in his practices of ‘bondage.’ ”

2 . See American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980); Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985); Savage v. Boies, 77 Ariz. 355, 272 P.2d 349, 351 (1954); M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681, 687 (1980); State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282, 285 (1952); Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970); Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337, 1342 (1986); Cummings v. Pinder, 574 A.2d 843, 845 (Del.1990); Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla.1985); Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837 (1991); Hatfield v. Max Rouse & Sons N.W., 100 Idaho 840, 606 P.2d 944, 953 (1980); Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157, 165 (1961); Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991); Amsden v. Grinnell Mut. Reinsurance Co., 203 N.W.2d 252, 253 (Iowa 1972); Dawson v. Assocs. Fin. Servs. Co. of Kan., 215 Kan. 814, 529 P.2d 104, 113 (1974); Craft v. Rice, 671 S.W.2d 247, 249 (Ky.1984); White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991); Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me.1979); Harris v. Jones, 281 Md. 560, 380 A.2d 611, 613 (1977); George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915, 921 (1971); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438 (Minn.1983); Pretsky v. Southwestern Bell Tel. Co., 396 S.W.2d 566, 568 (Mo.1965); Paasch v. Brown, 193 Neb. 368, 227 N.W.2d 402, 404 (1975); Star v. Rabello, 97 Nev. 124, 625 P.2d 90, 92 (1981); Morancy v. Morancy, 134 N.H. 493, 593 A.2d 1158, 1159 (1991); Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 544 A.2d 857, 864 (1988); Newberry v. Allied Stores, Inc., 108 N.M. 424, 773 P.2d 1231, 1239 (1989); Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 373 N.E.2d 1215, 1217 (1978); Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, 335 (1981); Muchow v. Linblad, 435 N.W.2d 918, 923-24 (N.D.1989); Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369, 453 N.E.2d 666, 671 (1983); Breeden v. League Servs. Corp., 575 P.2d 1374, 1376 (Okla.1978); Champlin v. Washington Trust Co., of Westerly, 478 A.2d 985, 988 (R.I.1984); Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776, 778 (1981); Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 169 (S.D.1987); Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270, 272 (1966); Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344, 346-47 (1961); Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431, 432 (1978); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974); Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291, 295 (1975); Harless v. First Nat'l Bank, 169 W.Va. 673, 289 S.E.2d 692, 703-05 (1982); Alsteen v. Gehl, 21 Wis.2d 349, 124 N.W.2d 312, 316 (1963); Leithead v. American Colloid Co., 721 P.2d 1059, 1065 (Wyo.1986).

3 . See Hall v. The May Dept Stores Co., 292 Or. 131, 637 P.2d 126, 129 (1981) (requiring “some extraordinary transgression of the bounds of socially tolerable conduct”); Chedester v. Stecker, 64 Haw. 464, 643 P.2d 532, 535 (1982) (requiring the conduct to be "unreasonable,” which the court equated with "outrageous” as defined in Restatement § 46); Sears Roebuck & Co. v. Devers, 405 So.2d 898, 901 (Miss.1981) (finding liability may exist "where there is something about the defendant’s conduct which evokes outrage or revulsion”).

4 .Five members of the court — CHIEF JUSTICE PHILLIPS AND JUSTICES GONZALEZ, HIGH-TOWER, DOGGETT, SPECTOR and myself— agree that the judgment of the court of appeals must be reversed: JUSTICES GONZALEZ, HIGHTOWER, and I form a plurality of the court who recognize the tort of intentional infliction of emotional distress in the marital context and who remand this case for a new trial in the interests of justice; CHIEF JUSTICE PHILLIPS would recognize the tort, but not apply it to married couples and would reverse and render; JUSTICES HECHT and ENOCH would not recognize the tort under any circumstances and would reverse and render. JUSTICES DOG-GETT AND SPECTOR would recognize the tort in the marital context but would affirm the judgment of the court of appeals.

5 . E.g., Women and the Law Section of the State Bar of Texas.

6 . We note these cases not for their precedential value, but as examples of cases in which a claimant brought an action for negligent infliction of emotional distress.

7 . Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993); Smith v. Chasewood Bank, No. B14-92-00302-CV, 1993 WL 81584 (Tex.App.—Houston [14th Dist.], March 25, 1993, n.w.h.) (not designated for publication) (brought individually and on behalf of husband’s estate); Schauer v. Koperwhats, 856 S.W.2d 437 (Tex.App.—Houston [1st Dist.], 1993, n.w.h.); Hennigan v. I.P. Petroleum Co., 848 S.W.2d 276 (Tex.App.-Beaumont, 1993, n.w.h.); Jones v. Legal Copy, Inc., 846 S.W.2d 922 (Tex.App.-Houston [1st Dist.] 1993, no writ); Gibson v. Matrix Resources, Inc. of Texas, 05-91-01502-CV, 1993 WL 42881 (Tex.App.—Dallas, Feb. 17, 1993) (not designated for publication); Weirich v. Weirich, 833 S.W.2d 942 (Tex.1992); Natividad v. Alexsis, Inc., 833 S.W.2d 545 (Tex.App.-El Paso 1992, writ granted); McAlister v. Medina Elec. Co-op., Inc., 830 S.W.2d 659 (Tex.App.—San Antonio, 1992, writ denied); Massey v. Massey, 807 S.W.2d 391 (Tex.App.—Houston [1st Dist.] 1991, writ pending); Blair v. Blair, 01-89-01035-CV, 1991 WL 9266 (Tex.App.—Houston [1st Dist.] 1991, writ denied) (not designated for publication); Twyman v. Twyman, 790 S.W.2d 819 (Tex.App.—Austin 1990, writ granted); Chiles v. Chiles, 779 S.W.2d 127 (Tex.App.-Houston [14th Dist.] 1989, writ denied).

8 . Izen v. Royall, 01-92-1216-CV, 1993 WL 66813 (Tex.App.—Houston [1st Dist.], March 11, 1993, n.w.h.); Garcia v. San Antonio Hous. Auth., 859 S.W.2d 78 (Tex.App.-San Antonio, 1993, n.w.h.); Krupka v. U.S. Videotel and Encode Intern., No. B14-92-00398-CV, 1993 WL 46571 (Tex.App.—Houston [14th Dist.], Feb. 25, 1993, n.w.h.) (not designated for publication); Birdo v. Williams, — S.W.2d -, No. 01-91-00294-CV, 1992 WL 347121 (Tex.App.—Houston [1st Dist.], Nov. 25, 1992, n.w.h.); Daniels v. Pecan Valley Ranch, Inc., 831 S.W.2d 372 (Tex.App.—San Antonio 1992, writ denied); C.T.W. v. B.C.G., 809 S.W.2d 788, 796 (Tex.App.—Beaumont 1991, no writ) (brought on behalf of two male children); Johnson v. Rollen, 818 S.W.2d 180 (Tex.App.—Houston [1st Dist.] 1991, no writ); Gumm v. Owen, 815 S.W.2d 259 (Tex.App.—El Paso 1991, no writ); Wavell v. Caller Times Pub. Co., 809 S.W.2d 633 (Tex.App.-Corpus Christi 1991, writ denied); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex.App.-Corpus Christi 1991, writ denied); Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755 (Tex.App.—Corpus Christi 1988, writ denied); Hinojosa v. South Texas Drilling & Exploration, Inc., 727 S.W.2d 320 (Tex.App.—San Antonio 1987, no writ).

9 . Channel 4, KGBT v. Briggs, 759 S.W.2d 939 (Tex.1988); St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649 (Tex.1987), overruled by Boyles v. Kerr, 855 S.W.2d 593; Resolution Trust Corp. v. Cook, 840 S.W.2d 42 (Tex.App.—Amarillo 1992, writ denied) (awarding damages for negligent infliction of emotional distress to both spouses); Campos v. Ysleta General Hosp., Inc., 836 S.W.2d 791 (Tex.App.—San Antonio 1992, writ denied); Valenzuela v. Aquino, 800 S.W.2d 301 (Tex.App.—Corpus Christi 1990, writ granted); State Nat. Bank v. Academia, Inc., 802 S.W.2d 282 (Tex.App.—Corpus Christi 1990, writ denied); Hewitt v. Chadwick, 760 S.W.2d 333 (Tex.App.—Texarkana 1988, no writ).

10 . Godinet v. Thomas, 824 S.W.2d 632 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (brought on behalf of a woman).

11 . Brazosport Bank of Tex. v. Oak Park Townhouses, 837 S.W.2d 652 (Tex.App.-Houston [14th Dist.] 1992) rev’d and remanded, 851 S.W.2d 189 (Tex.1993).

12 . One amicus asserts that such a "twisted" classification of this conduct is due to the struggle to bring a claim within insurance coverage. See Amicus Brief of United States Automobile Association, p. 5.

13 . CHIEF JUSTICE PHILLIPS, and JUSTICES HECHT and ENOCH rue the court’s decision to permit the tort of intentional infliction of emotional distress to be brought in divorce proceedings. But it appears that much of what they disapprove of is related to the consequences of recognizing any tort action between divorcing spouses. Their criticisms would seem to be better directed at the court’s earlier decisions to abrogate the doctrine of interspousal tort immunity in Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977), and Price v. Price, 732 S.W.2d 316 (Tex.1987).

14 . CHIEF JUSTICE PHILLIPS’ statement that “all conduct actionable between strangers is [not] automatically actionable between spouses” cannot be reconciled with this language. See 855 S.W.2d at 627 (Phillips, C.J., dissenting).

15 . We necessarily disapprove of the contrary holding in Chiles v. Chiles, 779 S.W.2d 127 (Tex. App. — Houston [14th Dist.] 1989, writ denied) (declining to recognize intentional infliction of emotional distress as a separate cause of action in a divorce suit).

16 . A [divorce action] plaintiff ... may join as independent claims any or as many claims either legal or equitable or both as he may have against the opposing party.... Further ... [either] party may state as many separate claims as he or she has regardless of consistency and whether they are based on legal or equitable grounds or both.

Mogford v. Mogford, 616 S.W.2d 936, 940 (Tex.Civ.App.-San Antonio 1981, writ ref'd n.r.e.).

17 . We anticipate that most tort cases between spouses will be joined with the divorce proceeding, however, situations may exist in which the facts supporting the tort action will be different from those supporting a petition for divorce.

18 . By holding that these actions may be brought in a single lawsuit we are not authorizing the use of contingent fee arrangements in family law matters. See Tex.Disciplinary R.Prof.Conduct 1.04 & cmt. 9 (1989), reprinted in Tex.Gov't Code Ann., tit. 2, subtit. G app. (Vernon Supp.1993) (State Bar Rules art. 10, § 9). Rather, attorneys should enter two separate fee arrangements, one for the divorce and the other for the tort claim. See Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24 Fam.L.Q. 127, 151-52 (1990).

19 . For a discussion of the possibility of double recovery in this type of case, see Schepard, supra at 146-47.

20 . In Texas, recovery for personal injuries of a spouse, including pain and suffering, is the separate property of that spouse. Tex.Fam.Code § 5.01(a)(3); Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972). Therefore, an award to one spouse from the other does not add to the marital estate, and raises no possibility that the tort award becomes "self-offsetting.” See Barbara H. Young, Interspousal Torts and Divorce: Problems, Policies, Procedures, 27 J.Fam.L. 489, 511 (1989).

21 .The Restatement calls for the court to first determine whether the conduct may be reasonably regarded as so extreme and outrageous as to allow recovery and whether severe emotional distress can be found. Restatement (Second) of Torts § 46 (1965) cmt. h; see also Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex.App.-San Antonio 1992, writ denied); Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 945 (Tex.App.-Beaumont 1985, writ ref'd n.r.e.). The trial court made no findings of outrageous behavior or severe emotional distress, and the judgment was based specifically and exclusively on negligent infliction of emotional distress. The divorce decree recites:

After considering the pleadings, the evidence, and the arguments of the attorneys, the Court finds the facts and law support judgment for Petition [sic] in her tort for negligent infliction of emotional distress upon Petitioner.

Additionally, the trial court made a disproportionate property division based on William’s cruel treatment and adultery. It appears that such an award may allow Sheila a double recovery based on the same conduct. A new trial conducted in accordance with the principles announced in this decision should rectify this problem.