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Segal v. Lynch

May 3, 2010

MOSES SEGAL, INDIVIDUALLY, E.S., A MINOR BY HER GUARDIAN AD LITEM, MOSES SEGAL, AND W.S., A MINOR BY HIS GUARDIAN AD LITEM, MOSES SEGAL, PLAINTIFFS-APPELLANTS,
v.
CYNTHIA LYNCH, AN INDIVIDUAL, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Morris. County, Docket No. L-3076-07.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 5, 2010

Before Judges Fuentes, Gilroy and Simonelli.

This appeal requires us to determine whether the tort of intentional infliction of emotional distress is a cognizable cause of action when the supporting factual allegations are rooted in the parent-child relationship. Specifically, plaintiff, the father of two minor children, filed a complaint in the Law Division alleging on his own behalf, and as guardian ad litem for the children, that defendant, the children's mother, intentionally or recklessly engaged in extreme and outrageous conduct designed to poison his relationship with his children, which alienated the natural bond and affection that should exist between them and caused both he and the children emotional distress.

The trial court dismissed plaintiff's complaint as a matter of law pursuant to Rule 4:6-2(e), finding that the facts alleged therein failed to state a claim upon which relief could be granted. The trial court's ruling was based primarily on the proscriptions codified in N.J.S.A. 2A:23-1, otherwise referred to here as the Heart Balm Act. Independent of this statutory impediment, the trial judge also found that plaintiff's action was precluded by the Entire Controversy Doctrine because the allegations forming the basis of this civil complaint should have been raised as part of a Family Part action filed by plaintiff in 2006. Finally, accepting arguendo all of the factual allegations in plaintiff's complaint as true, the court found that plaintiff failed, as a matter of law, to state a cognizable claim for intentional or negligent infliction of emotional distress. Additionally, acting on defendant's application for the imposition of sanctions under the frivolous litigation law, N.J.S.A. 2A:15-59.1 and R. 1:4-8, the trial court found plaintiff had brought this action in bad faith and awarded defendant counsel fees in the amount of $42,912.50.

Plaintiff now argues that the trial court erred in finding that his cause of action for intentional infliction of emotional distress was barred under the Heart Balm Act. He also argues that the motion judge improperly made credibility findings against him based only on the parties' history of litigation, and thereafter, used those findings as a basis to dismiss his complaint and impose sanctions against him under the frivolous litigation law.

After carefully reviewing the record before us, we affirm the judgment of the trial court dismissing plaintiff's complaint. We do so, however, for reasons other than those expressed by the trial court. Aquilio v. Continental Ins. Co., 310 N.J. Super. 558, 561 (App. Div. 1998). We are satisfied that the Heart Balm Act does not bar plaintiff's claim because the statute's prohibitions were intended to apply only to causes of action alleging alienation of affection arising out of and dependent upon a marital relationship.

We acknowledge with equal force, however, that plaintiff's cause of action raises profound questions of public policy concerning the propriety of permitting a parent to utilize a child's loss of affection for him or her as grounds for civil liability against the other parent. On its face, such a cause of action has the potential to deteriorate into an abusive process; it can be wielded like a sword by an emotionally distraught parent with little to no consideration of how the litigation will affect the child. Most alarming is the potential for great harm such a cause of action would pose to the child.

Our overarching consideration in all matters concerning children involved in the judicial system is "the best interests of the child." This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child. Application of this principle to the case at hand leads us to one inexorable conclusion: plaintiff's cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children involved in this suit.

Despite this holding, we reverse the imposition of sanctions under the frivolous litigation framework because plaintiff advanced a good faith argument in support of his legal position in a novel, complex, and heretofore relatively unexplored area of the law.

I.

Because the trial court dismissed plaintiff's complaint as a matter of law, we recite all of the relevant factual allegations in the light most favorable to plaintiff. R. 4:6-2(e).

The parties never married. They lived together in Toronto, Canada for approximately six years and had two children during their relationship: a girl, born in 1994, and a boy, born in 1998. The parties physically separated in 2001, but continued to reside within blocks of each other in Toronto; the children resided with their mother, and plaintiff, by his own admission, enjoyed frequent and liberal contacts with his children during the time he remained in Toronto.

Plaintiff moved to New Jersey in 2003. According to him, after the move, defendant "refused to establish a schedule of parenting time," which limited most of his interactions with the children to email messages and telephone calls. Despite what he characterized as defendant's "obstructive efforts," plaintiff concedes that he continued to enjoy a relationship with his children after his relocation to this State. Although no set schedule was established, plaintiff saw the children approximately every two weeks from June 2005 to June 2006. He did not seek judicial intervention to increase his contacts with the children during this time period.*fn1

Conversely, defendant brought an action in the Superior Court of Justice in the City of Toronto seeking custody of the children, financial support from plaintiff for herself and the children, and to compel plaintiff to pay to her a portion of the proceeds from the sale of certain properties owned by the parties. By order entered June 20, 2005, the Canadian court granted defendant custody of the children and ordered plaintiff to pay: (1) a lump sum award of child and "spousal"*fn2 support in the amount $8,350,747 in Canadian currency (CDN); (2) child support arrears in the amount of $378,135.77 CDN; (3) a debt owed by plaintiff to defendant in the amount of $1,445,664.99 CDN; and (4) defendant's share of proceeds from the sale of their home in Lyford Cay, Bahamas, in the amount of $963,084. CDN. The award totaled $11,137,631.76 CDN.

In June 2006, defendant relocated to New Jersey, changed her telephone number, and terminated all contact and communication between plaintiff and his children. Specifically, defendant blocked all of plaintiff's emails and forbade the children from emailing or otherwise contacting their father. As a result, plaintiff did not have any contact with the children for over three months. Plaintiff alleges, "[u]pon information and belief," that defendant used this time period to alienate the children from him "by telling them false and spiteful things about their father."

Through a private investigator, plaintiff learned where defendant and the children had relocated and that the children had been enrolled in the local school district under their mother's surname. Plaintiff filed a complaint in the Family Part seeking "various injunctive relief" including "resumption of parental time and contact with the children." The Family Part granted plaintiff supervised visitation commencing in October of 2006.

According to plaintiff, "[o]nce visitation resumed, it became apparent to [him] that defendant's actions had a negative impact on his relationship with the children." Plaintiff further claimed that a court-appointed psychologist determined that defendant engaged in "alienating behavior with the children." The record before us does not include a report from this psychologist verifying plaintiff's claim.

Against this factual backdrop, plaintiff, for himself and on behalf of the parties' two minor children, filed a complaint against defendant for intentional and negligent infliction of emotional distress.

The matter first came before the trial court by way of defendant's motion to dismiss plaintiff's complaint in lieu of an answer pursuant to Rule 4:6-2. After noting the parties' repeated references to the history of litigation involving both the Canadian case and the action in the Family Part, the court decided to review defendant's motion to dismiss under the standard applicable to a motion for summary judgment. R. 4:46-2. Thus, accepting plaintiff's allegations as true and giving him all favorable inferences therefrom, the trial court granted defendant's motion to dismiss, finding that plaintiff had not presented a legally cognizable cause of action.

The trial court based its ruling on three legally independent grounds: (1) plaintiff's cause of action was barred by the Heart Balm Act; (2) the facts alleged by plaintiff in the complaint failed to state a claim of intentional or negligent infliction of emotional distress as a matter of law; and (3) the case was barred by the Entire Controversy Doctrine, Rule 4:30A and Rule ...


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