 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Fischer v. Fischer12/26/2000
Appeal From: Circuit Court of Jackson County, Hon. C. William Kramer
Opinion Vote: REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Breckenridge, P.J., and Ulrich, J., concur.
Opinion:
Benjamin Fischer, by and through his next friend Elisabeth White Scarborough, his mother (hereinafter "Elisabeth"), filed a petition in the Circuit Court of Jackson County, Missouri, seeking monetary damages for emotional harm resulting from alleged sexual abuse by his father, Mark Fischer (hereinafter "Mark"), and from his stepmother, Bonnie Fischer's (hereinafter "Bonnie") failure to keep him safe from harm and failure to provide him with good care. Mark had previously won a malicious prosecution judgment against Elisabeth, stemming from the allegations of sexual abuse. The trial court granted summary judgment to Mark and Bonnie, finding that Benjamin, by and through his next friend Elisabeth, was "collaterally estopped from further litigating the issues before the Court." This appeal followed.
For the reasons set forth below, the summary judgment is reversed, and the case is remanded to the trial court for further proceedings.
Facts
Elisabeth and Mark were married in 1984 and divorced in 1986. Pursuant to their divorce decree, Elisabeth had custody of their only son, Benjamin (born in 1983), and Mark was allowed visitation. Mark subsequently married Bonnie.
In 1989, Elisabeth took Benjamin to their local police station, where Benjamin told police that Mark had sodomized him. After investigation, Mark was indicted by a grand jury for felony child abuse. The prosecutor dismissed the case against Mark two years later. Elisabeth had also filed a petition for an ex parte order of protection in 1989. However, she failed to appear at the hearing, so that action was also dismissed.
In September of 1991, after the sexual abuse allegations against him were resolved with the police and the courts, Mark sued Elisabeth for malicious prosecution and abuse of process. A jury found in Mark's favor and awarded actual and punitive damages totaling $200,000. Elisabeth did not appeal the judgment. Instead, allegedly on the advice of counsel, she sought to discharge the judgment in bankruptcy . The debt was found to be non-dischargable. In re Scarborough, 171 F.3d 638 (8th Cir. 1999), cert. denied, 528 U.S. 93 (1999) (concluding that the malicious prosecution judgment against Elisabeth "necessarily included a finding that [Elisabeth] wilfully and maliciously sought to injure [Mark]." Thus, that judgment collaterally estopped relitigation of the issue of whether the judgment resulted from willful and malicious conduct, and the Bankruptcy Code excepts from debts dischargeable in bankruptcy any debt "for willful and malicious injury by the debtor to another entity or the property of another entity." 11 U.S.C. section 523 (a)(6)(1994)).
In 1997, after her attempt to block the revival of the judgment failed, Elisabeth petitioned the Circuit Court to be appointed next friend of Benjamin pursuant to Missouri Rule of Civil Procedure 52.02(b) (1997). She then filed a petition in Benjamin's name, as his next friend, alleging that during periods of Benjamin's visitation with Mark in 1988, Mark sexually abused Benjamin. Bonnie was also named as a defendant. It was alleged that Bonnie knew of the abuse, had a duty to protect Benjamin, and did nothing to protect him from the abuse. The petition requested damages for emotional distress. On December 23, 1999, the trial court granted Mark and Bonnie's summary judgment motion, summarily holding that "Plaintiff collaterally estopped from further litigating the issues before the Court
Page 1 2 3 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|