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Feltmeier v. Feltmeier9/18/2003
preserved." Henriksen, 622 A.2d at 1139. Moreover, we agree with the Supreme Judicial Court of Maine that "behavior that is `utterly intolerable in a civilized society' and is intended to cause severe emotional distress is not behavior that should be protected in order to promote marital harmony and peace." Henriksen, 622 A.2d at 1139, quoting Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me. 1979).
Indeed, the Illinois legislature, in creating the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 et seq. (West 2002)), has recognized that domestic violence is "a serious crime against the individual and society" and that "the legal system has ineffectively dealt with family violence in the past, allowing abusers to escape effective prosecution or financial liability." 750 ILCS 60/102(1), (3) (West 2002). However, as the appellate court herein noted, while the Act created the crime of domestic battery and "provides a number of remedies in an effort to protect abused spouses and family members, it did not create a civil cause of action to remedy the damages done." 333 Ill. App. 3d at 1169. Thus, it would seem that the public policy of this state would be furthered by recognition of the action at issue.
A second policy concern is the threat of excessive and frivolous litigation if the tort is extended to acts occurring in the marital setting. Admittedly, the likelihood of vindictive litigation is of particular concern following a dissolution of marriage, because "the events leading to most divorces involve some level of emotional distress." Henriksen, 622 A.2d at 1139. However, we believe that the showing required of a plaintiff in order to recover damages for intentional infliction of emotional distress provides a built-in safeguard against excessive and frivolous litigation. As the appellate court herein stated: "When conduct is truly extreme and outrageous, it is more likely that severe emotional distress suffered by the victim was actually caused by that conduct." 333 Ill. App. 3d at 1173.
Another policy consideration which has been raised is that a tort action for compensation would be redundant. However, as earlier noted, while our legislature has recognized the inadequacy of our legal system in allowing abusers to escape financial liability for domestic violence, the laws of this state provide no compensatory relief for injuries sustained. An action for dissolution of marriage also provides no compensatory relief for domestic abuse. See Merenoff v. Merenoff, 76 N.J. 535, 556, 388 A.2d 951, 962 (1978) (divorce provides an escape from tortious abuse, but can hardly be equated with a civil right to redress and compensate for personal injuries). In Illinois , as in most other states, courts are not allowed to consider marital misconduct in the distribution of property when dissolving a marriage. See 750 ILCS 5/503(d) (West 2002).
After examining case law from courts around the country, we find the majority have recognized that public policy considerations should not bar actions for intentional infliction of emotional distress between spouses or former spouses based on conduct occurring during the marriage. See Henriksen, 622 A.2d at 1140 (and cases cited therein). Additionally, our appellate court, while only considering the res judicata and collateral estoppel effects of such suits, has found that a plaintiff's intentional infliction of emotional distress action against her former husband for conspiring to murder her was not barred by their prior dissolution proceeding. See Vance v. Chandler, 231 Ill. App. 3d 747, 753 (1992).
Further, in McGrath, 126 Ill. 2d at 86-90, this court identified several factors that may be considered in determin
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