*1 Hence, “ripe” adjudi- dispute is not

cation. Bastardo, recognize People v.

We People (Colo.App.1986) v.

725 P.2d

Incerto, 557 P.2d

(1976) appear contrary to be based on a However, appear it does not

principle. argued those issue arose McCall, People 662 P.2d

cases. Both v. Turman, (Colo.1983) People v. su- defendant, deal relied on

pra,

good-time presentence credit confine- inapposite the facts

ment and are here. affirmed.

Order BABCOCK, JJ., concur.

TURSI DESTAFANO,

Robert

Plaintiff-Appellant, GRABRIAN,

Dennis and the Diocese of Springs,

Colorado

Defendants-Appellees, DESTAFANO,

Edna

Cross-Claimant-Appellant.

No. 84CA0973. Appeals,

Colorado Court of

Div. II.

Aug. 7, 1986.

Rehearing Sept. 1986. Denied (Destafano) Granted

Certiorari

Dec. 1986.

relationship” with the At all rele- times, priest’s supervisors vant the defendant diocese “knew or should have that priest known” the “was unsuited for marriage counseling and ... would cause jeopardized harm ato relationship.” marital During counseling the relationship, the priest “commenced a course of conduct” with Edna which the “knew or should have known would lead to additional problems” marital between Robert and Edna “and would the probable cause disso- marriage. lution of their Despite such ac- tual or knowledge, constructive priest] [the continued on such course of conduct a P.C., Goldstein, Peter A. Peter A. Gold- disregard reckless rights for the and feel- stein, Springs, Colorado for plaintiff-appel- ings of [Robert].” lant. Robert also Ranson, Thomas, & Livingston, Cook a continuing duty” “owed to him “to rea- Ranson, Richard P. for Springs, Colorado train, sonably supervise par- interview and cross-claimant-appellant Edna Destafano. priests doing ish who are marriage counsel- Donley, Kane, Kane W. Hayden & Colo- ing.” However, “with actual or construc- Springs, defendant-appellee rado for Den- knowledge tive priest’s] prior of indis- [the nis Grabrian. cretions, [Edna], similar to those with the Dix, Enoch, Winslow, Sparks, Suthers & did wilfully nevertheless reck- and [diocese] P.C., Suthers, John W. Springs, Colorado lessly with specific disregard a for the defendant-appellee The Diocese of Colo- rights feelings and of fail to ade- [Robert] Springs. rado interview, train, quately supervise and [the priest] engaged to see to it he that was not CISE, Judge. VAN marriage counseling in with vulnerable wife, people such as and his Plaintiff, (Robert), Robert [Robert] Destafano and Edna.” cross-claimant, defendant and Edna Desta- (Edna),

fano formerly husband and wife complaint alleged Robert’s further that divorced, appeal judg- now from the proximate a direct and of result the “[a]s dismissing ments all their claims defendants,” conduct and (the defendants Dennis priest) Grabrian relationship Edna “entered into an intimate (the and Springs the Diocese of Colorado which contributed to ultimate dissolu- diocese). We affirm. marriage” tion of the between and Robert Referring Edna. to minor children of that In his claims and the marriage learning and his of the relation- (the defendants), diocese Robert Edna, ship between and Robert which, purposes determining facts “ability asserted to maintain a propriety of a dismissal for failure to working parental relationship with Edna claim, state accept a we must as true. impossible, has been rendered and chance Education, Abts v. Board 622 P.2d 518 salvaging was rendered (Colo.1980). They are as follows: In impossible, and he en- has suffered and having he and his then wife Edna were excruciating pain dured mental and suffer- marital difficulties and decided to seek ing.” counseling. marital Both were Catholics “and allegations, had faith and par- confidence their on the Robert Based above priest,” ish sought compensatory exemplary defendant re- and dam- Grabrian. As a sult, couple counseling ages into for: “entered a from diocese C.R.S., (2) manner and the claims constituted

(1) priest in the an negligence of the counseling, and unreasonable interference into the internal he conducted which failing the Roman negligence diocese in ade- mechanisms of Catholic Church of the monitor, were, train, therefore, constitutionally pro- quately (2) both, outrageous granted conduct hibited. The trial court the mo- priest, fiduciary duty grounds, their breach tions both and dismissed all *3 to owed him. claims. complaint, Edna appeal,

In initial Robert’s On Robert and Edna contend that defendant, but, as in his amended complaint named a cross-claims the amended and his claims complaint, sufficiently negligent Robert dismissed coun aver claims against against seling, conduct, In her cross-claims outrageous her. and breach of alleged Edna priest and the fiduciary duty, the and motions defendants’ Robert, having marital diffi- she and agree. that should have been denied. We do not culties, counseling, sought marital and had Considering sum being the motions as for by to the had been referred mary judgment under Kol C.R.C.P. see priest repre- purpose. for The Boulder, that v. 36 City wicz experienced an sented himself to be (1975), P.2d we conclude that the 538 482 professional a counselor who and skilled properly court dismissed Robert’s trial act would in their best interests. and Edna’s cross-claims. claims alleged couple met with the She that I. Robert's Claims twice, which Robert was ad- after 13-20-202, (the Section C.R.S. “heart to his own counselor. There- vised seek statute”), provides: balm after, “commenced a relation- “All civil of action causes for breach ship” extremely with “when she was Edna promise marry, alienation of affec- to emotionally, relation- vulnerable and which tions, conversation, seduc- criminal and an relation- ship developed into adulterous hereby are tion abolished.” ship priest].” because of the actions [of Musim, 461, 427 Goldberg In v. 162 Colo. his She claimed these actions “breached (1967), wife her husband’s P.2d 698 a sued fiduciary [her], duty to constituted out- inducing sepa- girlfriend husband to for negligent.” rageous conduct and were her, not to rate from the wife and to return priest “has en- She also that the making necessary it to obtain a her relationships regular on gaged in a basis separate decree. The trial maintenance in a similar with other women who were held, supreme af- court court that “such conduct was situation” and firmed, wife’s was in the that claim by known or have been known” should affec- action for alienation of nature an she suf- further diocese. She by the tions and was therefore barred in- permanent emotional fered “severe and statute, statute balm and that heart ex- pain suffering, medical juries, was constitutional. damages” penses, loss income and other case, it In is the husband Robert’s fiduci- priest’s as a result of the breach person alleged “contrib suing the to have duty, negligent performance of his ary his mar dissolution of the uted to ultimate counselor, duty as a marital “out- seeking recovery his dam riage” and rageous, conduct intentional” willful his case is ages resulting therefrom. But her, regard diocese’s fail- to analogous Goldberg, supra, and falls to ure to its the abolished action squarely within moved to dismiss Robert’s Defendants of affections. See Nicholson alienation cross-claims complaint amended and Edna’s 313 Han, Mich.App. N.W.2d ground they fail to state (1968). granted upon relief could be which been, Also, “inti- basing his claims on the abolished because the claims have to the 13-20-208, relationship which contributed through mate by 13-20-201 §§ marriage,” ultimate dissolution of the Rob- “when extremely she was vulnerable emo- seeking priest’s ert is to recover for tionally,” and she asks for an award of “criminal conversation” with Edna while damages injuries for her suffered as a re- “adultery she was still married priest’s sult of the conduct. In other Robert— aspect words, of a tort.” Hirschy See she seeks to recover damages for Coodley, Cal.App.2d P.2d 93 her own seduction. The cause of action for seduction was specifically by abolished “heart Therefore, balm statute.” her claims, Accordingly, Robert’s however cross-claims proper- were denominated, are based on alienation of ly dismissed. conversation, criminal affections and both of which are barred the “heart balm Edna’s claims the dio Since Also, per- any statute.” it is unlawful for predicated cese are priest’s on the conduct any pleading seeking son to file to recover her, toward recovery for which is statutori upon any such causes of action. Section barred, *4 ly dismissal as to the diocese was 13-20-205, Thus, C.R.S. the trial court proper, also for the same reasons set forth properly against dismissed Robert’s claims regard above with to Robert’s claims. priest’s Had the conduct constituted III. tort, an actionable absent other In grounded view of the affirmances defenses, perhaps could have been held re statute,” the “heart balm we need not con- sponsible respondeat under the doctrine of sider whether the of the Destafanos Atchison, superior. Willy Topeka & constituted unconstitutional interferences 306, Ry., Fe 115 Santa Colo. 172 P.2d 958 into the internal mechanisms of the Roman (1946); Rice, 481, 40 Sanchez v. Catholic Church. (1978); (Second) 580 P.2d 1261 Restatement Judgments affirmed. 215, 216, Agency (1958). and 217 §§ However, by priest’s statute the conduct is METZGER, J., concurs. actionable, not and the Destafanos have injuries STERNBERG, J., suffered no for which there is a dissents. legal remedy. Consequently, there is no STERNBERG, Judge, dissenting. upon

foundation which liability of the dio may premised. cese be I. Further, allegations even the view, my In none of the claims asserted negligent failing adequately diocese was in by by the Destafanos are barred the heart train, monitor, to priest by balm statute or the anachronistic rul- give liability are insufficient to rise in to ings concerning in abolished actions the diocese for the effects of conduct which that statute. The scandalous nature Hence, is not tortious not actionable. conduct of the should not dismissal of the claims divert our attention from the true nature of proper. alleged by the cause of action both the II. Edna’s Cross-Claims Destafanos. is Seduction “the act of a man in allegations I read the in As both the enticing a woman to have unlawful inter cross-claim, complaint and the the central by course with persuasion, him means of wrongdoing asserted contention solicitation, bribes, promise, or other means fiduciary duty. is a breach employment without the of force.” Wein help The Destafanos came to the Coffee, lich v. P. Colo. marriage. He with their undertook such (1918). fiduciary help thereby entered a rela- However, them. in tionship Edna’s cross-claims are based on an al- with both of leged fiduciary relationship, relationship” disregard “adulterous he commenced but, attempt help to in shield the and the diocese only

not did not from liabil- deed, began ity a course of conduct which he for their tortious conduct. As stated in Connecticut, have known would lead to knew should Cantwell v. 310 U.S. family. (1940): their That the the destruction of 84 L.Ed. 1213 S.Ct. specific manner in which the breach oc religion provi- “The First Amendment engage to in sexual relations curred was concepts, contain sions two ‘freedom to importance. with Edna is not of critical believe and freedom to act. The first is perpetrated The could have absolute, but, in things, the nature of duty ways, e.g., by in other breach of induc second cannot be. Conduct remains sub- convey family’s ing Robert to assets to ject regulation protection to for the ” Paine, Webber, See Adams Jack him.. society.’ Curtis, Inc., (Colo.App. son 686 P.2d 797 & Erwin, See also Madsen v. 395 Mass. Hence, 1983). gist of the tort is 481 N.E.2d 1160 not alienation of affections or criminal con Religious totally beyond is belief asserts; majority versation as the rather it state, conduct, reach of the even if And, fiduciary duty. is breach of as to pursued in religion, the name of must con- tort, allegations complaint such of the form to community. the standards of the are sufficient to survive a motion for dis obligation perform The fiduciary one’s 12(b). missal under C.R.C.P. standard, obligations good faith is such a priest acting A as a counselor allegation that there was a breach liability should no more be shielded from obligation may properly of that be ad- psychi- the heart balm statute than were therefore, dressed. The issues this case *5 protected by atrist-counselors such statutes doctrinal, inquiry do not involve spiri- into 891, Hartogs, Misc.2d Roy v. 381 tual, ecclesiastical, religious matters. Kambly, N.Y.S.2d 587 Cotton dissent; Accordingly, respectfully I I 537, Mich.App. 300 N.W.2d 627 judgment would reverse the and remand the cause for trial on all claims. II. As to the claims respondeat superior applica is

doctrine impose liability

ble to vicarious on the dio fiduciary duty by

cese for the breach of generally Mary's See Saint Acade Solomon, P. 22 my v. 77 Colo. WILSON, Gary Claimant Death (1925)(charitable may institutions be liable Wilson, Petitioner, of Dean Booth liability only in tort and not limited to se lecting servants). incompetent Furthermore, if heart even the balm stat- DRILLING, Compen- JIM SNYDER State interpreted broadly ute is so as to bar the Fund, sation Insurance Division of La- priest, under Restate- bor, and the Industrial Commission of (Second) (1958), Agency ment § Colorado, Respondents. State may diocese be held liable for its own con- No. 85CA1135. if, alleged, duct as it knew or should have Appeals, Colorado Court of priest’s proclivity known to misuse Div. II. position as a counselor to purposes

achieve his own nevertheless Aug. 1986. permit engage continued to him to in such Rehearing Sept. Denied 1986. a sensitive role. (Wilson) Dec. 1986. Certiorari Granted

III.

Contrary argument, to the defendants’ may

the First Amendment not be used to