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Richardson v. Richardson

Supreme Court of South Dakota

December 27, 2017

SALLY RICHARDSON, Plaintiff and Appellant,
MICHAEL RICHARDSON, Defendant and Appellee.

          ARGUED OCTOBER 3, 2016



          ROBERT D. PASQUALUCCI Rapid City, South Dakota Attorney for plaintiff and appellant.

          TIMOTHY RENSCH of Rensch Law Office Rapid City, South Dakota Attorneys for defendant and appellee.


         [¶1.] Sally Richardson alleged that her husband Michael forced her to work as a prostitute during the course of their marriage. Sally also alleged that Michael emotionally, physically, and sexually abused her, causing both humiliation and serious health problems. Sally divorced Michael on the grounds of irreconcilable differences, reserving by stipulation the right to bring other nonproperty causes of action against him. Following the divorce, Sally brought suit against Michael, alleging intentional infliction of emotional distress (IIED). The court, bound by our precedent in Pickering v. Pickering, 434 N.W.2d 758, 761 (S.D. 1989), dismissed Sally's suit for failing to state a claim upon which relief can be granted. We take this opportunity to overrule Pickering and reverse and remand the court's order dismissing Sally's suit.

         Facts and Procedural History

         [¶2.] The circuit court did not hold any evidentiary hearings or make any findings of fact. Because the court dismissed the claim pursuant to Rule 12(b)(5), we reiterate the facts set forth in Sally's complaint.[1] In 2013, Sally worked as a part-time escort. In February, Michael solicited Sally by phone, but the two did not arrange a meeting. In May 2013, Sally met Michael at a Walmart in Rapid City, South Dakota, by happenstance. By then, Sally had ceased working as an escort. Michael did not initially recognize her as the woman he had solicited in February. After talking, the two decided to schedule a date. Ultimately, Sally and Michael began a romantic relationship.

         [¶3.] During their relationship, Michael recognized Sally as the person he had once solicited, and Sally disclosed her past as an escort. In response, Michael wanted Sally to continue working as an escort. He provided her a cellphone and business cards and began prostituting her online through various websites. Michael also drove Sally to her appointments and watched her liaisons with clients through a laptop or iPad.

         [¶4.] Michael became physically and verbally abusive toward Sally early on in the relationship. He repeatedly threatened to kill Sally or himself, and in January 2014, Michael attempted suicide. Despite continually claiming Sally could stop working as an escort in six months' time, Michael became violent whenever she proposed quitting. Law enforcement received numerous 911 calls reporting domestic abuse. In May 2014, despite Michael's abusive treatment, Sally married Michael. According to Sally, she still cared for Michael and wanted to make the relationship work. However, Sally claimed she continually lived in fear for her life and developed Post-Traumatic Stress Disorder.

         [¶5.] In addition to physical and verbal abuse, Michael sexually abused Sally. He demanded she engage in infantilizing conduct. Further, Michael forced Sally to perform unsafe and demeaning sexual acts against her will. Because of this mistreatment, Sally suffered life-threatening health complications.

         [¶6.] In September 2014, the two separated. Michael filed for divorce citing irreconcilable differences, and Sally counterclaimed for divorce based on adultery, extreme cruelty, and habitual intemperance. The parties ultimately settled and divorced on grounds of irreconcilable differences. The settlement agreement contained a mutual release; however, it provided an exception permitting either party to pursue nonproperty causes of action against the other. In April 2015, a decree of divorce was granted.

         [¶7.] Approximately four months after the divorce, Sally sued Michael for IIED. The complaint alleged that Michael engaged in "extreme and outrageous conduct" and "intentionally and recklessly force[d] . . . [Sally] to continue in prostitution against [her] wishes . . . caus[ing] [Sally] severe emotional distress." Michael moved to dismiss for failure to state a claim and moved for summary judgment in the alternative. Michael's motion cited Pickering and asserted that Pickering bars former spouses from suing each other for IIED when the claim is based on conduct that served as the basis for the parties' divorce.

         [¶8.] On January 12, 2016, the circuit court held a hearing on Michael's motion to dismiss. The court acknowledged the severity of Michael's alleged conduct, stating, "If true, what went on here is despicable, outrageous, and the court can't find strong enough words to condemn [it]." Nevertheless, the court observed that Pickering, as a matter of public policy, prohibited "causes of action predicated on conduct which leads to the dissolution of marriage, even if such conduct is severe." See 434 N.W.2d at 761. The circuit court granted Michael's motion to dismiss for failure to state a claim under SDCL 15-6-12(b)(5). Sally appeals, arguing the circuit court erred in determining she failed to state a claim upon which relief may be granted.[2]

         Analysis and Decision

         [¶9.] Sally argues that the circuit court erred in relying on Pickering to dismiss her case.[3] Sally contends that Pickering does not control this case because the facts in Pickering and the case it cites as support, Richard P. v. Superior Court (Gerald B.), 249 Cal.Rptr. 246 (Cal.Ct.App. 1988), involved extramarital affairs that resulted in the birth of children out of wedlock. See Pickering, 434 N.W.2d at 761-62. In her view, Michael's conduct warrants a different rule because of its abusive nature. Further, Sally observes that the Legislature previously abolished the common-law doctrine of interspousal immunity and permitted tort suits between spouses. Therefore, she claims that Pickering is inconsistent with this abrogation. See Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, 272 (1941) ("[A] civil action is maintainable in this jurisdiction between husband and wife for damages for personal tort committed by one against the other . . . ."). Sally urges this Court to abandon its reliance on Pickering and join the many other states that permit a suit for tortious conduct occurring within the marriage.

         [¶10.] In Pickering, a woman became pregnant during an extramarital affair. When she exhibited signs of pregnancy, she fooled her husband into believing he fathered the child. The husband eventually learned of the deception and filed for divorce. The husband also sued his estranged wife and her paramour for their deceitful conduct, alleging a variety of causes of action, including IIED. The circuit court granted the wife summary judgment, and this Court affirmed, holding that "the tort of [IIED] should be unavailable as a matter of public policy when it is predicated on conduct which leads to the dissolution of a marriage." Pickering, 434 N.W.2d at 761 (emphasis added). While the facts of Sally's case may be distinguishable from the facts in Pickering, Pickering's broad holding makes no exception for a case such as hers.

         [¶11.] Distilled to its core, this case comes down to a single question: Should we uphold the judicially created rule in Pickering? We think not. Pickering is ripe for reexamination for a number of reasons. We observe that in deciding whether to overturn long-standing precedent, our decision in State v. Plastow examined: (1) whether the rule is "no longer necessary to achieve [its] valid purposes"; (2) whether "the rule may operate to obstruct justice"; and (3) decisions of other courts. 2015 S.D. 100, ¶¶ 15-17, 873 N.W.2d 222, 227-29. Based in part on these criteria, we adopted a new rule because the old rule was "too rigid in its approach, too narrow in its application, and too capable of working injustice[.]" Id. ¶ 19, 873 N.W.2d at 229. So, too, is the rule in Pickering.

         [¶12.] Here, in determining whether the Pickering rule serves a valid purpose, we note that before this Court decided Pickering, a victim could sue his or her spouse for IIED because the Legislature abolished interspousal tort immunity. Pickering, 434 N.W.2d at 763. Interspousal tort immunity is a common-law rule that arose from the doctrine of coverture, which only allowed a married woman to sue through the personality of her husband. Immunity, Black's Law Dictionary (10th ed. 2014). Common law held that the unity of spouses created a "merger of legal identity[.]" Scotvold, 68 S.D. 53, 298 N.W. at 267 (quoting William F. McCurdy, Torts Between Persons in Domestic Relation, 43 Harv. L. Rev. 1030, 1035 (1930)). Thus, before the Legislature abolished interspousal immunity, it was "impossible at common law for one spouse ever to be civilly liable to the other for an act which would be a tort if the relation did not exist." Scotvold, 68 S.D. 53, 298 N.W.2d at 267 (quoting McCurdy, supra, at 1033). But the majority of states have long since abandoned this antiquated doctrine. "[Interspousal tort immunity] was ...

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