Wood v. Wood

338 N.W.2d 123, 1983 Iowa Sup. LEXIS 1670

• Court: Supreme Court of Iowa
• Decided: September 21, 1983
• Docket: 68316
• Status: Published

Opinions

LARSON, Justice.

The substantive issue here is whether a claim for damages may be asserted against a parent who has refused to return the parties’ child within the time provided in the dissolution decree. A motion to dismiss the petition was sustained by the district court. We reverse and remand.

The plaintiff’s petition alleged that, “from December 25, 1981, to January 29, 1982, the defendant kidnapped the minor child of plaintiff from her care, custody and control” and that such act was “negligent, willful, malicious and in utter disregard for the rights of. the plaintiff.” She demanded actual and punitive damages.

The defendant responded by filing a motion to dismiss, alleging:

1. That there is no cause of action as alleged by the plaintiff as to warrant her receiving money damages from the defendant so that this matter should be dismissed.

2. That there are no statutory nor common law grounds which form the basis of this action.

WHEREFORE, defendant prays that plaintiff’s petition be dismissed at her cost.

The district court sustained the motion to dismiss in a calendar entry which simply said: “Defendant’s Motion to Dismiss is sustained. Copies to counsel.”

I. The Procedural Issue.

The plaintiff complains that the district court’s ruling sustaining the motion to dismiss did not comply with Iowa Rule of Civil Procedure 11 because it did not rule separately on each ground of the motion. Rule 118 provides:

Specific rulings required. A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally-

This court has said that the purpose of this rule is to enable the parties to know which grounds are sustained by the court and to narrow the issues on appeal, thereby saving time and expense. Brown v. Ellison, 304 N.W.2d 197, 200 (Iowa 1981); Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739, 743 (Iowa 1977). We have held that failure of a court to abide by rule 118 ordinarily is reversible error. Brekken v. County Board of Review, 223 N.W.2d 246, 247 (Iowa 1974); Ruby v. Easton, 207 N.W.2d 10, 14-15 (Iowa 1973).

In this case, however, failure of the court to separately rule on each paragraph of the motion did not amount to a failure to rule on “separate grounds” as required by rule 118. While the motion to dismiss was in separate paragraphs, it raised only one issue: Does Iowa recognize this claim for damages?

II. The Claim for Abduction.

In an early case, this court discussed the right of a parent to recover damages for deprivation of custody of a child:

That the father has a right to the care and custody of his minor children, and to superintend their education and nurture, is a proposition that does not admit of controversy. And where he is deprived of such care and custody, and of this superintendence, by the act of another, he has his remedy, by proper action, against such person, is equally clear. As it is the duty of the father to educate, protect, and nurture his children, so it is his right to have their society, their services, and the control of their moral and intellectual training.

Everett v. Sherfey, 1 Iowa 356, 359 (1855).

In its early stages, a claim for wrongfully seizing or retaining custody of a child was restrictively applied; only a father could pursue the claim, and it was based on a deprivation of the child’s services. Id. at 360-61; see also Pyle v. Waechter, 202 Iowa 695, 697, 210 N.W. 926, 927 (1926); W. Pros-ser, Handbook of the Law of Torts § 124, at 882-83 (4th ed. 1971). The rule permitting recovery has since been expanded; most courts requiring a loss of services as a prerequisite have been willing to find a constructive loss of services, even though none are being rendered. Other courts disregard earlier restrictions and merely adopt what is characterized as the “modern” view. Under this approach, the essence of the claim is the interference with the parental relationship, not a loss of services. Id. at 883.

As long ago as 1938, the Restatement of Torts recognized an action for tortious interference with custody. See Restatement of Torts § 700 (1938). The current section states the principle:

§ 700 Causing Minor Child to Leave or not to Return Home. One 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.

Restatement (Second) of Torts (1977). The Restatement rule permits suits by parents against noncustodial parents, as well as against nonrelatives:

c. When both parents entitled to custody and earnings. When the parents are by law jointly entitled to the custody and earnings of the child, no action can be brought against one of the parents who abducts or induces the child to leave the other. When 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. One 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.

Restatement, supra, § 700, comment c. (Emphasis added.)

The claim for interference with custody rights appears to have been recognized in every jurisdiction which has addressed the issue. See, e.g., Rosefield v. Rosefield, 221 Cal.App.2d 431, 435-37, 34 Cal.Rptr. 479, 483 (1963); Bennett v. Bennett, 682 F.2d 1039, 1044 (D.C.Cir.1982); Spencer v. Terebelo, 373 So.2d 200, 202 (La.App.1979) (cause of action based on violation of kidnapping statute; breach of legal duty); Wasserman v. Wasserman, 671 F.2d 832, 834-35 (4th Cir.1982) (applying Maryland law) (complaint alleging “child enticement” is a generally recognized common law tort); Kipper v. Vokolek, 546 S.W.2d 521, 525 (Mo.App.1977) (“The tort may be actionable between parents of the child where, by proper judicial decree, the sole custody of the child has been awarded to one of the parents.” The Missouri court dismissed the father’s action, however, because the custody orders upon which he based his claim were void for lack of proper notice); LeGrenada v. Gordon, 46 N.C.App. 329, 331-32, 264 S.E.2d 757, 758-59, appeal on petition for review dismissed, 300 N.C. 557, 270 S.E.2d 109 (1980) (interspousal suit under a valid custody agreement); Fenslage v. Dawkins, 629 F.2d 1107, 1109 (5th Cir.1980) (applying Texas law); Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431 (1978) (cause of action for intentional infliction of mental distress resulting from denial of personal contact or communication with daughter allowed to be maintained); Lloyd v. Loeffler, 694 F.2d 489, 495-96 (7th Cir.1982) (applying Wisconsin law); Kajtazi v. Kajtazi, 488 F.Supp. 15, 18-21 (E.D.N.Y.1978) (applying New York law).¹ See also Restatement (Second) of Torts § 700 (1977); W. Prosser, Handbook on the Law of Torts (4th ed. 1971) § 124, at 883-84; 67A C.J.S. Parent and Child § 130, at 512 (1978); see generally Note, Tortious Interference with Custody: An Action to Supplement Iowa Statutory Deterrents to Child Snatching, 68 Iowa L.Rev. 495 (1983).

Another, similarly uniform, line of cases establishes the tort claim where the interference is instigated or furthered by relatives or other third parties. While these cases do not have spouses as defendants, they often spring from abduction of the child by a spouse.. In all, the logic and language support a cause of action by a custodial parent against the other, noncustodial parent. See Gibson v. Gibson, 15 Cal.App.3d 943, 93 Cal.Rptr. 617 (1971); Hinton v. Hinton, 436 F.2d 211, 213 (D.C.Cir.1970), aff'd w’out op., 492 F.2d 669 (D.C.Cir.1974); Brown v. Brown, 338 Mich. 492, 498, 61 N.W.2d 656, 659 (1963); Oversmith v. Lake, 295 Mich. 627, 295 N.W. 339 (1940); Pickle v. Page, 252 N.Y. 474, 169 N.E. 650 (1930); Lisker v. City of New York, 72 Misc.2d 85, 338 N.Y.S.2d 359 (1972); McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977); McBride v. Magnuson, 282 Or. 433, 436, 578 P.2d 1259, 1259-60 (1978).

Frequently, in fact, the abducting spouse figures prominently in the case and is not a defendant only because he or she has fled with the child to a foreign jurisdiction. See, e.g., Gibson, 15 Cal.App.3d at 945, 93 Cal.Rptr. at 618; Brown, 338 Mich, at 495-97, 61 N.W.2d at 657-59; McEvoy, 277 Or. at 784, 562 P.2d at 542. This recurring scenario itself suggests the need for recognition of a civil claim for damages.

III. Other Alternatives.

There obviously are several remedies available to a victimized parent. Each of them, including the tort claim, however, has its limitations. (A tort claim will obviously furnish little deterrent or likelihood of recovery in the ease of an impecunious defendant.) Concerning the use of alternative remedies in such cases, see Note Tor-tious Interference with Custody, supra, 68 Iowa L.Rev. at 500-15.

The case now before us illustrates how the tort claim can, more effectively than any of the alternative sanctions, serve both to prevent child-snatching and to pick up the pieces if it does occur.

A. The UCCJA. The Uniform Child Custody Jurisdiction Act, Iowa Code chapter 598A, is basically just that — a jurisdiction act. It provides no compensation for interference with custody in any case. In the present case, it would not even allow recovery of expenses, because the custody decree is not one of “another state.” See Iowa Code § 598A.15. Because the uniform act provides no compensation for the plaintiff, it provides little or no deterrent to the defendant.

Professor Sanford Katz, chairman of the Family Law Section of the American Bar Association and editor-in-chief of the Family Law Quarterly, has written extensively on the UCCJA. He notes the widespread problem of child-snatching (estimated at 25,000 to 100,000 per year) and discusses the inability of the UCCJA alone to deal with the problem. He points out that this Act is largely jurisdiction-oriented, not remedy-oriented and concludes: “The parent entitled to custody of a child, but unlawfully deprived of it by the noncustodial parent, must still [after adoption of the UCCJA] seek relief in a number of traditional, well established methods.” Katz, Legal Remedies for Child Snatching, 15 Fam.L.Q. 103, 105 (1981). A tort suit is one of the “traditional” remedies suggested. Id. In another publication, Prof. Katz says that “[ajnother lack of force [in the UCCJA] is that its provisions are not tied to any. specific enforcement provisions, sanctions or parent-oriented remedies” and repeats his suggestion that “more direct sanctions” such as criminal prosecution or tort suits are needed. Katz, Child Snatching: The Legal Response to the Abduction of Children, at 33 (1981).

Patricia M. Hoff, director of the Child Custody Project, National Legal Resource Center for Child Advocacy and Protection of the American Bar Association, has also noted the ineffectiveness of the UCCJA in furnishing a complete remedy:

Perhaps more so than other existing remedies in parental kidnapping cases, the child snatching tort suit holds great promise for compensating the victim parent to the full extent of his or her damages. While the Uniform Child Custody Jurisdiction Act makes it possible for the person entitled to custody or visitation to recover his or her attorneys’ fees, court costs, and necessary travel and related expenses from the person violating the decree, a tort action ultimately expands both the nature and the amount of the recovery, and enlarges the number of potential defendants. All damages suffered by the plaintiff as a consequence of the wrongful conduct may be recovered in a tort action, including punitive damages in some instances and any person who assists the defendant-parent in the abduction, retention, or concealment of the child may conceivably be held liable.

P. Hoff, Interstate Child Custody Disputes and Parental Kidnapping: Policy, Practice and Law, at 14r-l (1982).

B. The kidnapping alternatives. Other alternatives include prosecutions under federal and state kidnapping statutes. A kidnapping prosecution, however, provides for no recovery of expenses or compensation for the victimized parent. There is another problem more subtle, but real nevertheless: Cases with domestic overtones occupy a position of low priority with law enforcement personnel and prosecutors. In' fact, this reality appears to be widely observed. See Justice Dep’t. Scored for Flouting Parental Kidnapping Act’s Mandate, 7 Fam.L.Rep. (BNA) 2739-42 (Oct. 6, 1981). In Iowa, child-snatching by a parent is only a misdemeanor, unless the child is removed from the state, in which case it is a felony. Iowa Code § 710.6. If the child is removed from the state, the chances of extradition are slim, again because of the domestic overtones of the cases and the inherent inertia of law enforcement personnel in dealing with them.

C. The contempt alternative. The usefulness of a contempt action is doubtful. It would provide no recovery of expenses or compensation, and if the party has left the state, any sanctions which are imposed will be of no effect. Further, it provides no basis for extradition. The weaknesses of the contempt alternative are noted in Katz, Legal Remedies for Child Snatching, supra, at 117-22, and in Katz, Child Snatching, supra, at 103-06. See also P. Hoff, Interstate Child Custody Disputes and Parental Kidnapping: Policy, Practice and Law, supra, at 14-1.

One authority summarizes the advantages of the tort suit over the other alternatives: 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; potential punitive damages will serve as an additional deterrent; and increased knowledge of a child’s whereabouts will result through the broad scope of civil-case discovery. Hoff, id. at 14-1.

We conclude that we should follow the majority of jurisdictions by recognizing and applying section 700 of the Restatement. The district court ruling must therefore be reversed, and the case remanded for further proceedings.

REVERSED AND REMANDED.

All Justices concur except WOLLE, J., who dissents joined by HARRIS and McGIVERIN, JJ. McCORMICK, J., joins division I of the dissent.

1 . Two New York cases have refused to recognize a civil claim in suits between spouses. See McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181, aff'd 37 A.D. 917, 324 N.Y.S.2d 876 (1970) and Friedman v. Friedman, 79 Misc.2d 646, 361 N.Y.S.2d 108 (1974). However, McGrady was a suit against a custodial parent for denial of visitation rights, not for interference with the right of custody, an interest of greater state concern. It is unclear from the Friedman opinion whether that case involved custody or visitation rights. The McGrady case has been criticized as unresponsive to the problems of interstate parental kidnapping, see P. Hoff, Interstate Child Custody Disputes and Parental Kidnapping: Policy, Practice and Law, at 14-1, 14-15 (1982), and has not been seen as denying a claim for interference with custody. See Kajtazi, 488 F.Supp. at 19 (applying New York law).