Twyman v. Twyman

PHILLIPS, Chief Justice,

concurring and dissenting.

I join in the Court’s recognition of the tort of intentional infliction of emotional distress. Unlike negligent infliction of emotional, distress, which we rejected in Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993), recovery for intentional infliction of emotional distress is permitted in almost every other state. While not free from conceptu *627 al difficulties, this cause of action has proved useful because it “provides a convenient mechanism for achieving a just result in a given case without either dissembling about the facts, manipulating doctrine, or creating new rules regulating the underlying relationship.” Daniel Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 74 (1982). See also Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Law 5-11, 5-17 (Report to the. American Bar Association from the Special Committee on the Tort Liability System, 1984) (the doctrine “represents a synthesis of ideas developed by many courts reacting to numerous factual situations,” and is “an excellent modern example of the common law tradition”). It is not, as one concurring and dissenting opinion suggests, merely a tort which “makes outrageous conduct tortious.” 855 S.W.2d at 629 (Hecht, J., concurring and dissenting). A successful plaintiff must prove not merely outrageous conduct, but outrageous conduct committed by the defendant with the intention of, or reckless disregard to the probability of, inflicting severe emotional distress on the plaintiff. Thus, unlike claims for negligent infliction of emotional distress, actions for intentional infliction can and have been successfully pursued in Texas for a number of years without any demonstrated harm to the orderly administration of justice.

In recognizing this tort, however, I would not extend it to actions between spouses or former spouses for conduct occurring during their marriage. Although this Court has abolished interspousal immunity, Price v. Price, 732 S.W.2d 316 (Tex.1987); Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977), it does not necessarily follow that all conduct actionable between strangers is automatically actionable between spouses. Several courts in other jurisdictions have expressly made such a reservation when abolishing interspousal immunity. For example, the Utah Supreme Court wrote in abolishing inter-spousal immunity:

The marriage relation is created by the consent of both of the parties; inherently within such relationship is the consent of both parties to physical contacts with the other, personal dealings and ways of living which would be unpermitted and in some cases unlawful as between other persons.

Stoker v. Stoker, 616 P.2d 590, 592 (Utah 1980). See also Brown v. Brown, 381 Mass. 231 , 409 N.E.2d 717, 718-19 (1980); Imig v. March, 203 Neb. 537 , 279 N.W.2d 382, 386 (1979); Beaudette v. Frana, 285 Minn. 366 , 173 N.W.2d 416, 420 (1969). In accordance with these sentiments, I believe that a tort which is grounded solely on a duty not to inflict emotional distress should not be cognizable in the context of marriage.

Married couples share an intensely personal and intimate relationship. When discord arises, it is inevitable that the parties will suffer emotional distress, often severe. In the present case, for example, Ms. Twy-man testified that she suffered “utter despair” and “fell apart” upon learning that her husband was seeing another woman. She further testified that “[t]he mental anguish was unbelievable to realize, hoping every time, when he went off to Houston, that he was just going to fly and not be with her.” Yet Ms. Twyman seeks no recovery for this distress, and apparently cannot do so under Texas law. Cf Tex. Fam.Code §§ 4.05; 4.06. In such circumstances, the fact finder is left to draw a virtually impossible distinction between recoverable and disallowed injuries.

Furthermore, recognition of this tort in the context of a divorce unnecessarily restricts the trial court’s discretion in dividing the marital estate. Prior to today’s opinion, the trial court could, but was not required to, consider fault in dividing the community property. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). The court had broad discretion to weigh any fault along with other appropriate factors, such as relative financial condition, disparity of ages, and the needs of the children. Id. at *628 698-699 . Now, however, where fault takes the form of “outrageous” conduct intentionally or recklessly inflicted, it becomes a dominant factor that must be considered at the expense of the other factors. Unlike battery, fraud, or other torts resting on more objective conduct, a colorable allegation of intentional infliction of emotional distress could arguably be raised by one or both parties in most intimate relationships. 1 As the court noted in Chiles v. Chiles, 779 S.W.2d 127, 131 (Tex.App.—Houston [14th Dist.] 1989, writ denied):

While we recognize the trial court may consider fault in the distribution of community property, we believe permitting such separate damages [for intentional infliction of emotional distress] in divorce actions would result in evils similar to those avoided by the legislature’s abrogation of fault as a ground for divorce.

See also Henriksen v. Cameron, 622 A.2d 1135, 1151 (Me.1993) (Glassman, J., dissenting) (recognizing the common-law tort of intentional infliction of emotional distress in the marriage context skews “a carefully constructed scheme of legislation governing the marriage relationship”).

Perhaps because of these difficulties, the tort of intentional infliction of emotional distress has not been generally recognized in the marital context. Although most states, like Texas, have abolished inter-spousal immunity, it appears that, until today, only two state supreme courts have expressly held that intentional infliction of emotional distress may be applied to marital conduct. See Henriksen, supra; Davis v. Bostick, 282 Or. 667 , 580 P.2d 544 (1978). Moreover, these two decisions do not appear to represent typical actions for the recovery of emotional distress damages. In Henriksen , the husband inflicted on his wife not only verbal abuse but also physical attacks, including multiple assaults and rapes. 622 A.2d at 1139 . Similarly in Bos-tick, the husband broke his wife’s nose, choked her, and threatened her with a loaded pistol. 580 P.2d at 545-46 . To the extent that emotional distress results from a physical attack or threat of attack, it is already compensable under tort theories previously recognized in Texas. The court in Henriksen apparently recognized the risk of spurious claims in the divorce context, noting that “to protect defendants from the possibility of long and intrusive trials on meritless claims, motions for summary judgment should ... be viewed sympathetically in interspousal cases.” 622 A.2d at 1139 . By contrast, it is far from clear that Texas’ strict summary judgment standard will allow our trial courts to use this procedure in weeding out meritless or trivial claims.

I recognize that a few intermediate appellate courts have also applied the tort to spousal disputes. Simmons v. Simmons, 773 P.2d 602 (Colo.App.1988, appeal denied); McCoy v. Cooke, 165 Mich.App. 662 , 419 N.W.2d 44 (1988, appeal denied); Koepke v. Koepke, 52 Ohio App.3d 47 , 556 N.E.2d 1198 (1989). See also Hakkila v. Hakkila, 112 N.M. 172 , 812 P.2d 1320 (App.1991), appeal denied, 112 N.M. 77 , 811 P.2d 575 (recognizing the tort in extremely limited situations); Ruprecht v. Ruprecht, 252 N.J.Super. 230 , 599 A.2d 604 (1991) (trial court opinion). On the other hand, at least two high courts have expressly rejected the cause of action as between spouses. Weicker v. Weicker, 22 N.Y.2d 8 , 290 N.Y.S.2d 732, 733 , 237 N.E.2d 876, 877 (1968); Pickering v. Pickering, 434 N.W.2d 758 (S.D.1988). See also Browning v. Browning, 584 S.W.2d 406 (Ky.App.1979).

Just as I join the Court’s decision to recognize a tort now available in nearly every American jurisdiction, I depart from the Court’s decision to extend that tort to a type of dispute where it is not generally applied in other states. I fail to understand how, lexigraphically or logically, it can be “medieval” or “archaic” to decline to adopt a position which has been expressly embraced by only two other state supreme courts. 855 S.W.2d at 643 (Spector, *629 J., dissenting). I therefore would reverse the judgment of the court of appeals and render judgment that Sheila Twyman take nothing on her tort claim.

. The plurality and one dissenting justice are incorrect in suggesting that I would reverse all abrogations of interspousal immunity, 855 S.W.2d at 624 n. 15; 855 S.W.2d at 640 (Spector, J., dissenting), or that I believe "spouses should be shielded from liability for even the most outrageous acts against one another.” 855 S.W.2d at 644 (Spector, J., dissenting).