Van Meter v. Van Meter , 1983 Iowa Sup. LEXIS 1369 ( 1983 )

McCORMICK, Justice

(dissenting).

I believe the tort of intentional infliction of emotional distress should be unavailable when it is predicated on conduct which leads to dissolution of a marriage. Because dissolution of marriage is impossible in this jurisdiction without the exercise of voluntary choice by one of the spouses and approval by the court, no marriage can be terminated without the unfettered exercise of free will by one of the parties. To provide the other party with a tort remedy against a third person as a result of the termination contradicts this reality and effectively revives the alienation of affections tort in different guise.

In the context of a failed marriage, an emotional distress claim is subject to at least three of the main difficulties of the alienation of affections tort. It provides the same opportunity for extortion or blackmail merely by the threat of suit. It disregards the volitional act of the other spouse that is essential to termination, and it denigrates the institution of marriage by making a forced sale of spousal affections. These issues were fully explored by the court in its prior decisions and resulted in the abrogation of the alienation of affections tort in Fundermann v. Michelson, 304 N.W.2d 790 (Iowa 1981).

Other jurisdictions have refused to extend or recognize the emotional distress tort in this context. See Haldane v. Bogy, 208 Cal.App.2d 302, 25 Cal.Rptr. 392 (1962); Hafner v. Hafner, 135 N.J.Super. 328, 343 A.2d 166 (Law Div.1975); Weicker v. Weicker, 22 N.Y.2d 8, 290 N.Y.S.2d 732, 734, 237 N.E.2d 876 (1968); Note, Loss of Consortium and Intentional Infliction of Emotional Distress: Alternative Theories to Alienation of Affections, 67 Iowa L.Rev. 859 (1982). In each of these cases, emotional distress claims were dismissed for failure to state a cause of action when the pleadings disclosed the claims arose in the context of termination of marriage. The petition in the present case reveals the same basis. I would therefore hold that the trial court erred in overruling the motion to dismiss.

In refusing to recognize an interspousal cause of action for intentional infliction of emotional distress based on one spouse’s conduct with a third party, the Court of Appeals of Kentucky relied on Weicker. See Browning v. Browning, 584 S.W.2d 406, 408 (Ky.Ct.App.1979). The court said: “[T]he conduct alleged is not actionable even in the light of recent trends regarding the tort of intentional infliction of mental distress, and because public policy would not be served by authorizing the recovery of damages under the circumstances alleged.” It added: “In effect, we determine, that in this case, the morals of mankind are more perfectly judged by a court having a final and eternal jurisdiction.” Id. I believe those statements are also applicable to the present case.

UHLENHOPP and HARRIS, JJ., join this dissent.