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Hakkila v. Hakkila3/21/1991
lt and battery. A spouse may recover damages for an intentional or negligent injury inflicted by another spouse. Maestas v. Overton.
Where a party couples a cause of action for divorce with one for intentional infliction of emotional distress, the threshold requirements of proof in order to establish a prima facie showing of intentional infliction of emotional distress must establish that the acts complained of were so severe as to fall outside the ambit of lawful conduct and that they causally resulted in severe mental anguish. Because emotional distress, and at times severe emotional distress, is a concomitant factor accompanying the dissolution of many marriages, litigation of a tort claim for intentional infliction of emotional distress at the same time the court is hearing an action for dissolution
of marriage improperly injects issues of fault into no-fault divorce proceedings and is destructive of efforts of the trial court to mediate custody and property disputes or to achieve an equitable resolution of the issues between the parties. Moreover, if the tort claim is pursued under a contingent fee agreement, the wife's claim for attorney's fees in the divorce proceeding may become, as in the present case, blurred. The better procedure for the trial judge to follow where a tort claim for outrage is joined with an action for dissolution of marriage is to bifurcate the tort claim from the trial of the divorce proceedings so that the tort claim may be tried separately. See SCRA 1986, 1-042(B). See also (to avoid potential prejudice resulting from trial of distinct factual issues, separate trial should be held); Simmons v. Simmons (sound policy considerations preclude either permissive or compulsory joinder of interspousal tort claims with dissolution of marriage proceedings).
The award of damages for intentional infliction of emotional distress failed to satisfy that four-pronged test required to establish wife's tort claim. See Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986). The judgment awarding damages for wife's tort claim should be vacated and set aside, and on remand the community property interest of the parties in the residence, and the indebtedness thereon, should be equitably divided and reapportioned between the parties. I concur with Judge Hartz that the cause should also be remanded for redetermination of the award of wife's attorney's fees.
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