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Hakkila v. Hakkila3/21/1991
esome issue of first impression. Husband argues on appeal that public policy considerations should preclude a spouse from initiating a cause of action for intentional infliction of emotional distress predicated upon conduct arising during the marriage of the parties and from raising the tort claim in the divorce proceedings.
Following husband's initiation of divorce proceedings, wife counterclaimed for divorce on the ground of cruel and inhuman
treatment and joined in her counterclaim a claim seeking recovery of damages against husband for intentional infliction of emotional distress based upon conduct alleged to have occurred during the marriage of the parties. Following trial, the trial court granted the divorce , finding that the parties were incompatible, awarded wife alimony in the amount of $1,050.00 per month until further order of the court, and also awarded wife monetary damages resulting from husband's intentional infliction of emotional distress.
The damage award to the wife on her tort claim provided that she should
recover $5,000.00 in medical expenses, and the residence of the parties [having a market value of $136,000] free and clear from any interest of [husband's one-half community property interest] and any [existing] mortgage encumbrances, for lost wages for the past, present, and future and for past, present, and future physical and mental pain and suffering.
Decisions of both our supreme court and this court have recognized the actionability of the tort of intentional infliction of emotional distress. ; ; ); ); . See also Restatement (Second) of Torts 46 (1965). No New Mexico appellate decision, however, has directly considered the issue of whether a spouse can join a tort claim for intentional infliction of emotional distress with an action for dissolution of marriage. Other states which have considered this issue have reached diverse results, as observed in the opinion of Judge Hartz.
The Utah Supreme Court, in Walther, v. Walther, 709 P.2d 387 (Utah 1985), ruled that tort actions between spouses should not be tried in a divorce proceeding. In Windauer v. O'Conner, 107 Ariz. 267, 485 P.2d 1157 (1971) (in banc), the Arizona Supreme Court recognized the right of a spouse to sue the other spouse in tort for an intentional wrong inflicted on the other but restricted the bringing of such action until after conclusion of the divorce action. Similarly, in Simmons v. Simmons, 773 P.2d 602 (Colo. App. 1988), the Colorado Court of Appeals observed that considerations of fault or misconduct are inappropriate in proceedings for dissolution of marriage, noting that divorce actions are primarily equitable in nature. The Simmons court held:
We adopt the reasoning of the Utah and Arizona courts, and hold that the efficient administration of dissolution cases requires their insulation from the peculiarities of matters at law. The joinder of marriage dissolution actions with claims sounding in tort or, for instance, contract would require our trial courts to address many extraneous issues, including trial by jury, and the difference between the "amicable settlement of disputes that have arisen between parties to a marriage," and the adversarial nature of other types of civil cases. Moreover, such would create tension between the acceptance of contingent fees in tort claims and our strong and longstanding public policy against contingent fees in domestic cases. We conclude that sound policy considerations preclude either permissive or compulsory joinder of interspousal tort claims, or non-related contract claims, with dissolution of marriage proceedings.
Id. at 60
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