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Feltmeier v. Feltmeier9/18/2003
(1976), 66 Ill. 2d 85, 90.)" (Emphases in original.) McGrath, 126 Ill. 2d at 86.
In the case at bar, Robert first contends that the allegations of Lynn's complaint do not sufficiently set forth conduct which was extreme and outrageous when considered " n the context of the subjective and fluctuating nature of the marital relationship." In support of this contention, Robert cites several cases from other jurisdictions that have addressed the policy ramifications of allowing a spouse to maintain an action for intentional infliction of emotional distress based upon acts occurring during the marriage. In Pickering v. Pickering, 434 N.W.2d 758, 761 (S.D. 1989), the Supreme Court of South Dakota held that the tort of intentional infliction of emotional distress should be unavailable as a matter of public policy when predicated on conduct which leads to the dissolution of a marriage. However, unlike the case at bar, the conduct serving as the basis for the tort in Pickering was the wife's extramarital affair, and the court noted that South Dakota law already provided a remedy for this type of claim in the form of an action against the paramour for alienation of affections. Pickering, 434 N.W.2d at 760-61. Next, Robert cites Hakkila v. Hakkila, 112 N.M. 172, 179, 812 P.2d 1320, 1327 (App. 1991), in which the Court of Appeals of New Mexico found that a husband's insults and occasional violent outbursts over the course of the parties' 10-year marriage were insufficiently outrageous to establish liability for intentional infliction of emotional distress. The Hakkila court additionally found insufficient evidence that the alleged wrongful conduct caused severe emotional distress. Hakkila, 112 N.M. at 179, 812 P.2d at 1327. Notably, while counseling caution, the court did not find that New Mexico's public policy barred recognition of the tort in the marital context. Hakkila, 112 N.M. at 174-75, 812 P.2d at 1322-23.
Finally, Robert cites a Texas case, Villasenor v. Villasenor, 911 S.W.2d 411, 415 n.2 (Tex. Civ. App. 1995), wherein the court, in dicta, noted that because the marital relationship " `is highly subjective and constituted by mutual understandings and interchanges which are constantly in flux[,]' * or purposes of determining outrageous conduct, the insults, indignities, threats, annoyances, petty oppressions, or other trivialities associated with marriage and divorce must be considered upon the individual facts of each case." However, Illinois case law makes clear that under no circumstances would " `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities' " qualify as outrageous conduct. McGrath, 126 Ill. 2d at 86, quoting Restatement (Second) of Torts ยง46, Comment d, at 73 (1965); Kolegas, 154 Ill. 2d at 20-21. Rather, the nature of the defendant's conduct must be so extreme as to go beyond all possible bounds of decency and to be regarded as intolerable in a civilized community. Kolegas, 154 Ill. 2d at 21. Thus, while we agree that special caution is required in dealing with actions for intentional infliction of emotional distress arising from conduct occurring within the marital setting, our examination of both the law of this state and the most commonly raised policy concerns leads us to conclude that no valid reason exists to restrict such actions or to require a heightened threshold for outrageousness in this context.
One policy concern that has been advanced is the need to recognize the "mutual concessions implicit in marriage," and the desire to preserve marital harmony. See Henriksen v.Cameron, 622 A.2d 1135, 1138-39 (Me. 1993). However, in this case, brought after the parties were divorced, "there is clearly no marital harmony remaining to be
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