Larson v. Dunn

39 insurеrs, is, course, years, beginning liability of For 90 but free to almost Co., Minn. exercise his to Spoonick Backus-Brooks or her discretion as how and 354, 358-59, (1903),up inquiry 94 N.W. whom the is made.3 McCarthy present day, to the Co. Well reasons, For all foregoing I re- Inc., Creamery, N.W.2d St. Peter spectfully affirm dissent and would (Minn.App.1986), part, rev’d. of appeals court and remand to the trial (Minn.1987),we have held that N.W.2d 312 court for retrial on all issues. plaintiffs right lawyer has the in a tort any existence of rela explore case to POPOVICH, (dissenting) Chief Justice tionship a defendant and his or between join Kelley. I the dissent of Justice Smith, liability insurer. See Antletz v. 220-21, Minn. N.W. v. Brooks-Scanlon Lumber Viou Co., 97, 105-06, 108 891, 895 N.W. general it can be stated that right recognized by the

Rule 31 codifies the permits jurors

cases The rule to cited. any relationship collectively

be about asked insurer, generally exists with the there LARSON, individually and John John panel as a group no has error when Larson, the father and natural as the issue on dire questioned been on voir Larson, minor, guardian of Jessica judge either or counsel. See Respondents, Carpenter, In Discussion Defendant’s During Voir An Coverage surance Dire: DUNN, Dunn, its Loree Carol Jennifer Analysis the Current Practice and a/k/a Thompson, Thompson, J.T. Ione Carlin Origins, 14 Wm. Mitchell L.Rev. Olson, Olson, Inga Rigenhagen, (1988). Here, judge permit the trial did not Rick I-X, Respondents, any the matter. to and John Does inquiry into Failure permit any inquiry is an error as a matter law, harm and it cannot be dismissed as Rigenhagen and Franklin Carol inquiry permitted. less at all was when no Rigenhagen, Appellants. Wilt, See, Alholm v. e.g., (Minn.1986) (analysis why similar No. C7-89-1139. procedural relating follow rules failure to Supreme of Minnesota. Court challenge juror of alternate peremptory to error of literal was not harmless because Aug. prejudice). demonstrate impossibility to grants the trial Rule to discretion any deny or not court is not whether to coverage mat

inquiry into the insurance

ters, only questions relates to how the Therefore, and whom. proposed be should the trial cоurt review retrial request question to

respondent’s jurors with the to connections defendants’

relative true, thought that our cases Rule 31 the fact remains school of 3. We are not unaware specific gives right inquiry suggests named lawyers purpose among real companies, this case the trial of that was type inquiry and at permitting' on voir dire might argued completely While it identify juror's possible denied. rela- so much and, therefore, in- company that the error was harmless particular named or its tionship to a trial, justify a new under generally itself to agents, sufficient employees as to inform retrial, upon case of this defen- the circumstances plaintiffs jurors if the defendant or that indeed liable, right be afforded the pay should exist counsel there funds are held dants inquiry into the issues. to make some even that be damages But should awarded. court, daughter, The trial inter Jessica. alia, lack denied a motion to dismiss for jurisdiction personal over nonresident granted Rigenhagens and a motion dis- failure to a claim.- miss for state Appeals Minnesota Court of affirmed the ruling jurisdictional reversed trial recognized custodial interfer- court and Dunn, tort. Larson ence (Minn.App.1990). We affirm in part part. and reverse I. Rigenhagen

John Larson and Loree were February 1978 and married on their Jessica, July 25, daughter, born on was February Dunn 1978. In com- marriage action to menced an dissolve given physical temporary and she was cus- tody of Jessica. On November marriage was dissolved and Larson permanent physical custody was awarded appeal Dunn did not this deci- of Jessica. alleged Larson that he was denied sion. father, Frank- access to Jessica Dunn’s Rigenhagen, evening of November lin Rigenha- he 1980 and when went to day gens’ following copy home the with a order, Dunn he was told had of the court fled the state with Jessica. Larson then year for commenced a seven search Jеssica by local law included efforts enforce- FBI. In authorities well as the ment arrest was issued for addition an warrant Carlson, Muir, Heuel, Carlson R. James felony deprivation Dunn for P.A., Rochester, appel- for Spellhaug, & (1988)). (Minn.Stat. lants. on information from F.B.I. Based Viesselman, Associ- Terry W. Wilhelm might have in- indicating Dunn’s relatives Fairmont, Larson, et al. ates, for John where- about her and Jessica’s formation abouts, Larson filed suit in U.S. District Sunde, James, for Rick St. R. Steven on June for the District of Minnesota Court Olson. Dunn, Rigenhagens, against (Loree Thompson Dunn’s and lone

and J.T. uncle), alleging actions con- and aunt kidnapping, negligence, conspiracy, stituted KEITH, Justice. parental custo- and interference with fraud the action (Larson) rights. Larson dismissed his former sued dial John Larson trial because (Dunn), prejudice before father and wife, Dunn her without Loree complaint denials to Rigenhagens’ Ri- Rigenhagen and Carol mother, Franklin that the F.B.I. of information and bеcause and several genhagen (Rigenhagens), testify during ongoing inves- an interfer- would intentional relatives tigation. minor rights to his his ence with August rights, conspiracy, F.B.I. located Dunn visitation civil intention- Washington, distress,

and Jessica in the State of al infliction of emotional living damages where were with Dunn’s second fraud. Larson claims of over husband, Dunn, $50,000 costs, in search Paul whom she married in related pled guilty companion- December Dunn distress loss of Jessica’s 1983. ship society; damages kidnapping are also claimed charge September on behalf of Jessica loss of her upon She claims father’s she left Minnesota in 1980 companionship during her Al- attorney’s temporary while abduction. advice though Dunn properly was served in order was still valid that she Wash- ington, she did not refused service and did not days learn until later that Lar- appear. only Her physical response son was Dunn a letter custody. awarded signed and his August attorney indicating Larson she act- affidavits contend- ing ed alone and was she was physically Larson abused her Jessi- advised not liable ca, expenses in the sexually abused She fur- incurred search. Jessica. ther claims denied her Larson visitation Rigenhagens On December the regained custody after he of Jessica stay to proceedings moved under Minn.R. in 1987. (costs Civ.P. 41.04 previously dismissed action); to personal

Since her in dismiss for lack of return Jessica has jurisdiction; to custody. been in dismiss failure to Larson’s Larson learned state a cause of action from the under 12.- Rigenhagens, Jessica that Rick Minn.R.Civ.P. 03; (Jessica’s uncle) stay discovery to and under Olson and other relatives Minn.R. Civ.P. 26.03. had Olson moved on contact with and his former wife December 22, 1988, to year their dismiss for failure to seven absence. Paul state of action provided summary judgment. Dunn in cause and for similar information By February 17, 1989, order dated affidavit. In a 1981 article in a local thе trial court denied the to newspaper stay proceed- Minnesota and in answer motions ings, jurisdiction, original complaint, however, to the the to dismiss for lack Ri- and summary genhagens judgment, granted but knowledge denied where- the of the stay discovery motions to abouts of and to grandchild. and dismiss Olson, parties to for failure to state a claim. interrogatories, in admit- answer appealed.2 seeing ted Dunn and Jessica in California Rigenhagens with the “either or appeals The court of affirmed the trial Rigenhagens 1984.” He also asserted the except on court all issues the to motion had contact with Jessica Dunn between dismiss the intentional interference tort. 1980 and 1987. also claims Larson, 449 N.W.2d at 760. This court Rigenhagens having Olson in- denied granted Rigenhagens’ petition for fur- concerning formation whereabouts They appeal stay ther review. did not Loree and Jessica local law enforcement issues. authоrities and the F.B.I. Olson counters prior that he denial made his to his visit II. with Loree and Jessica 1984. 1983 or Rigenhagens lived Minnesota County occurred, Larson filed suit Martin Dis- when the alleged tort January 4, against living trict Court on have been in California since 1982. Dunn, Olson,1 Rigenhagens appellate and Rick We the trial and the believe court alleging correctly their actions court constituted intention- denied their motion to dis jurisdiction. interference or al miss for lack of Olson, parties parties complaint 1. The other named were not served other Apparently, Rigenha- appeared. Inga have entry parties stipulated remained. The then gen is deceased and whereabouts judgment purposes perfecting of final an parties is unknown. May appeal, and it was so ordered on 1989. time, At the same Larson withdrew his motion attempt appeal 2. The first failed since trial judgment against for default Dunn. only Rigenhagens court's order dismissed jurisdiction any properly Personal ex acts committed while were panel residents. satisfy contacts Minnesota The Larson ercised if the nonresident’s meritless, argument noting found this long-arm statute constitutional our interplay “[although some County exists between Social concerns. Sherburne * * *, legal these two doctrines whether Kennedy, N.W.2d Servs. v. separate claim is time barred is an issue (Minn.1988). the burden of Larson bears personal jurisdiction.” from the issue proving forum contacts exist sufficient Further, agree. N.W.2d at 759. We challenged. jurisdiction is Har when resident who: drives, Minn.Stat. al (a) Under Minnesota’s personal ing injury (d) causing injury Minnesota, subject found: ceptions when no or (c) jurisdiction (1) Minnesota has no substantial inter- (3) est in (2) isdiction substantial amation or Commits Commits Owns, ^[*] being brought Inc. v. the the burden § providing property situated ^[*] cause uses, 543.19, would violate fairness and City ‍‌​‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​​​​​​​‌​‌‌‌​​​​​​​‌‌‌‌‌​‌​‌​‍any any justice; or privacy. property or or ^[*] placed act aсt subd. possesses property exercised over a non- jurisdiction under to the LaCrosse, action lies in def- forum; long-arm outside Minnesota ^[*] damage, Minnesota the state’s (1988), the following in this any ^[*] or damage in defendant shall be or statute, person- real or state, caus- ^[*] jur- ex- Agers, 312 N.W.2d (1988) (fraud cause of action will because “fraudulent concealment of see also Minn.Stat. fornia. since the (out-state United States in the fects of their intentional conduct were felt discovered), the statute of limitations had (two year conduct sonal U.S. cised least The of his (construing California’s 1485 n. run statute 783, Rigenhagens’ indirectly over nonresident media vidien jurisdiction properly forum Personal See continued 6 & when act 787 n. 6 & Rigenhagens’ allegedly limitation Minn.Stat. causing action 1487, Supreme state. suit was filed aimed limitations,” Kopperud jurisdiction after they prevent 79 L.Ed.2d 804 alleged does period). Calder v. in-state 790, Court held and the 541.05, long-arm depriving not acсrue until 541.07(1) (1988) 104 S.Ct. could be exer also is moved to Cali acts were injury). (Minn.1981); January running Jones, subd. effects of statute). tortious Larson the ef proper (1984) 1482, th[e] per The 1(d) 1(6) at in Minne clearly these harmed Larson acts alleges that while still sota. Minnesota, aided Rigenhagens The and concealment Jessica. abduction requires process the nonresi Due allege Rigenhagens that their as minimum con dent “have certain defendant allega acted Larson’s she alone. serts that the forum such tacts state] [the however, tions, viewed as for must be true of the suit does not offend maintenance determining whether he has purposes play of fair and sub ‘traditional notions ” personal showing of prima facie made justice.’ Shoe Co. stantial International Bank,

jurisdiction. Hunt Nevada State 310, 316, 326 U.S. 66 S.Ct. Washington, 172 N.W.2d (citation (1945) omit L.Ed. 95 (1969), denied, U.S. 90 S.Ct. cert. pa ted). analyzing these constitutional Thus, person 1239, L.Ed.2d 423 rameters, we properly asserted jurisdiction may al be (1) quantity of factors: examine five Rigenhagens since over the (2) state, nature with the contacts Minnesota. action cause of arose contacts, (3) the quality of those relationship between ba connection Rigenhagens The contend this action, (4) the cause and the improper contacts long-arm jurisdiction sis for forum, and providing state’s interest run of limitations has the statute because par- expected haled into court (5) the relative could have to be convenience (4) (5) Further, considered Rigenhagens ties. Factors owned here. secondary. March property real Minnesota until they conveyed it into a when trust (citation omit Kennedy, 426 N.W.2d at 868 they apparently remain trustees of this ted). the nonresi analysis, Under They operated a property. also owned and he must “such that dent’s contacts dealership in 1984. Al- car Minnesota until reasonably anticipatе being haled should are un- though property these contacts Kennedy, there.” into court related, they Rigenhagen’s omitted); indicate (citation also Hanson see privi- 235, 253, purposeful of Minnesota Denckla, 78 S.Ct. availment 357 U.S. (1958) (purpose leges. 2 L.Ed.2d 1283 availment); v. Wes West Am. Ins. Co. ful providing has an Minnesota interest (Minn.1983). tin, Inc., N.W.2d dispute. subject for this The custo- forum context, jurisdiction personal In a similar court, dy order was issued a Minnesota by a father challenged in an action continuing retains over which Minnesota former in-laws against his nonresident under the Child Custo- jurisdiction Uniform deprive conspiring intentionally allegedly (UCCJA). Act dy Jurisdiction Minn.Stat. Rucker, custody. Stangel v. him of 518A.03, 1(a)(2) (1988). subd. Minnesota pet (Minn.App.1986), in protecting also is interested the custodial 25, 1987; (Minn., 13 & denied March rev. . rights of its citizens. 1988). The held the panel there June 518A.02(e) 518A.01, 1(b) §§ following forum the nonresi- contacts (UCCJA provisions designed to deter ab- legal fees paying insufficient: dents were preventing shopрing). ductions and forum firm in connection with to a Minnesota Minnesota, Cal- parties are residents of proceeding; providing care dissolution Washington, ifornia and and these states had child after knew he the minor of witnesses and likely will be site abducted; lying the child’s about been may not be the While Minnesota evidence. phone in a initi- conversation whereabouts forum, Rigen- hold the only appropriate we father. at 605-06. ated Id. hagens had minimum contacts sufficient here, however, present a contacts forum our exercise of with this state such that jurisdic- finding personal stronger case does personal jurisdiction over them tion. nor process constitutional due statu- offend Lar- Rigenhagens allegedly denied tory requirements. aided to Jessica in 1980 and son access and concealment Jessica’s abduction III. years they Minnesota remained the two The crucial this court issue for main- Rigenhagen Frаnklin residents. to create a tort “intentional whether after post office box in Minnesota tained a rights.” with California, interference custodial he offered moving to which past years in the has been toward trend “go between” for Larson as a to act Approximately recognizing this tort. one actual- daughter. These direct contacts his appellate of the state courts have and are third rise to the cause of action ly gave reasonably Despite ruled on this issue.3 what Rigenhagens such that 660, (1928) (by implication); jurisdictions 161 N.E. Twenty-one ruled on this Ind. 251 have Howell, 283, rulings, only deci eleven are S.E. Of these v. N.C. 78 222 issue. Howell 162 supreme D Fuller (1877); courts. D & (1913); of state Bayer, sions Clark v. Ohio St. 299 32 Const, Pace, (Colo.1989); P.2d 520 v. 780 (Tex.1986) CATV Oglesby, v. 721 S.W.2d 290 Silcott 132, Martin, P.2d 21 109 Idaho 706 v. Shields grandfather; (stepfather sued maternal court 1985); Wood, (Idaho N.W.2d 123 Wood 338 v. tort). applied Restatement 700 213, 1983); (Iowa Engel, 469 Plante v. 124 N.H. appeals courts. Six are decisions of state Su (1983); Magnuson, Or. 282 MсBride v. A.2d 1299 539, Cal.Rptr. Lucey, Cal.App.3d 214 rina v. 168 433, (1978); Bedard v. Notre P.2d 1259 578 Hall, (1985); Wash.App. Marriage In re 25 509 195, (1959); A.2d Hospital, 89 R.I. 151 690 Dame Terebelo, (1980); Spencer v. 607 P.2d 898 Brown, 61 N.W.2d 656 338 Midi. Brown v. denied, (La.Ct.App.1979) 200 cert. 376 So.2d 373 Crum, denied); (1953) (cert. Montgomery 199 v.

45 father) decided, family this court must assisted immediate or rel- have jurisdictions public generally of divorce love is the atives. Children its decision on what best base loving helpful parents and want a State of Minnesota. policy relationship parents- both once the increase Having steady witnessed tort, marriage is dissolved. With this years, past 25 litigation over the law testify against child his or be forced to learned legislature have our courts and the case, her own mother or In this father. consider, disputes ‍‌​‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​​​​​​​‌​‌‌‌​​​​​​​‌‌‌‌‌​‌​‌​‍carefully that we must father submitted an from Jessica affidavit parents children, rights of only the over relating to the actions of her mother and the welfare and best importantly, more grandparents. only imagine One can children. Berndt v. interests of their young testify torment of a child forced to (Minn.1980); 1 Berndt, La- 292 N.W.2d writing verbally against parent he LaBelle, 207 Belle v. or she loves. Jessica had lived with her (1973); Waslie, 277 291 State v. years mother for over before she was (1967); Minn. 152 N.W.2d 755 Minn. to her returned father. Chambers, (1988). Stat. § piling up children can Rethinking the Rules Evidence that Substantive Divorce, divorce, continuing Mich.L. devastated and their Custody Disputes in (1984). detrimentally development can be affected Rev. 481 n. 7 subsequent See, e.g., events. Cham- deciding this tort whether to create bers, (noting Mich.L.Rev. at (which rights), we is derivative of anxiety divorce is a time of and disloca- in of the children must take the interests tion); Schepard, Taking Children Serious- important policy consideration. as an volved Cooperative Custody ly: Promoting after Wood, at 128 v. Wood Cf. (1985) Divorce, 64 Tex.L.Rev. (Wolle, dissenting). This new tort would J. (divorce “significant causes and threaten- on children who create a new burden ing instability causing in a child’s lifе” by the dissolution of already dislocated damage). chil marriage. Abducted parents' children, good of our the law always young. The abduc For the dren are almost (as promote harmony such as is should seek to often the noncustodial tors are mother, cases, fractured the disso- case, many possible families in this (La.1979); Murray, The remainder of the cases were federal court Mathews v. So.2d 960 cases, implica- attempt predict ("by how the state Ga.App. tion”); S.E.2d 232 McDonald, Ala.App. supreme Armstrong court will rule. v. jurisdictions either deferred con Three have 103 So.2d 818 cases, supreme declined to create the tort. See court sideration or state Of the eleven Jenson, (N.D.Fla. McDougald only "by implica- recognized the tort least one (11th Cir.1986); 1984), Crum, aff’d, Bar Montgomery 786 F.2d 199 Ind. tion." Lis, (ad- Pa.Super. 480 A.2d 1178 Shields v. Martin tanus N.E. 251 dressing joint also cf. Church, (1984); Schuppin 435 liability police v. of officer and Unification abduction; (D.Vt.1977); basically assuming F.Supp. Smith, Sheltra v. that 603 mother for cf. 472, (1978) law); (holding 136 Vt. 392 A.2d 431 Mathews v. was tort under state abduction 216, (1960) compensable parental under in Ga.App. child abduction Murray, 113 S.E.2d 232 101 Also, distress). Hall, Marriage of emotional implication”); 25 tentional infliction ('by In re Illinois, (Tort 530, (1980) appeals not the state court of decided has in Wash.App. 607 P.2d 898 * * * tort, Washington but the district court for to create the cases "discussed in been * * *.”). de of Illinois "overrode” this Northern District recognized elsewhere Ill.App.3d Critchfield, v. 144 cision. Whitehorse unrelated third cases concerned Several state N.E.2d 745 surely Ill.Dec. 494 against party does 98 a third parties; a suit that, (1986) (stating possible multi degree because of well-being to the child's not threaten the resulting, plicity civil sanctions for of lawsuits intra-family v. suit would. McBride an that legislature); (Or.) interference best left in Magnuson, not {did P.2d 1259 578 Deitch, 683 v. 660 kidnapping; involved a but see parental rather Kunz volve (N.D.Ill.1987) (applying Illinois law and de officer); Hosp., Dame police v. Notre Bedard Whitehorse). clining The decision in (RI) (did to follow parental kid involve at 690 A.2d strong discharge deeply with a divided hospital’s Iowa napping; refusal to rather a Wood, McDonald, Wood v. infant); Ala.App. well-reasoned dissent. Armstrong v. J., (Iowa 1983) (Wolle, joined (third parties induced N.W.2d 103 So.2d 818 McGiverin, JJ., dissenting). mother; involved). Harris relatives no child to leave minimum, litigation, process. prevent At a the law which would lution additional escalating on place a a burden of stress the abducted provide should not means of addition, puts parental kidnapping In intrafamily action child. our warfare. This mother, provide costs statute for an award of family members of Jessica’s —her recovering in Minn. grandparents, her uncle odds with incurred child. (1988). father, her in places the middle. Stat. Further, possi- distress It this tort used could is clear that would be Already egregious bly in cases weapon disputes. a new in such be recovered through independent accu- tort of Intentional litigation precipitated this has bitter Distress, The contradictory Infliction of Emotional sations affidavits. v. compensation recognizes. not out- Minnesota See Hubbard interest in should International, on weigh accusations Press 330 N.W.2d effects bitter United IIED). court, denying (Minn.1983) a young (recognizing This in 439-39 children. recognizes child’s already cause of for alienation of a Minnesota the action for action legislature abol- affection our had after lost services of the child. See Eichten action, this Cooperative ished reasoned that Power Central Minnesota Ass’n, 180, 194-95, Minn. circumstances under which [t]he (1947). right demon- has here been asserted abuses, in potential grave strate the for egre Although in this case is the conduct of intra- object which child becomes the or gious, and done in defiance of a court and, family controversy indeed, pawn der, proper remedy for such violation disputes monetary in matters. over contempt integrity of the court’s lies marriage dissolu- the more usual case sanctions; providing such other resulting in relation- tion deteriorated compensation. party with Bock Cf. ships, one cause of action (Minn. Lindquist, 278 N.W.2d against for of a child’s another alienation 1979) (denying parent recovery tort unhappy affections would exacerbate the affection, part be alienation child’s strategic tool relationships and become a other remedies make actions for cause advantageous use of mem- one undesirable, unnecessary and alienation over another. ber court). e.g., corpus, contempt habeas Lindquist, Bock clearly also the other This case illustrates (Minn.1979). pay. mother penalties abductors will tort case has not seen her since Creating this new would create in this ago. place apprehended years over three wrong. innocent chil- she was new It would probably of a vigorous, dren the middle This tort will not deter abduc- vicious, It parents. between their lawsuit in this grandparents tion. mother and duplicate the and dislo- would ambivalence protect- apparently case believed were In this case cation the dissolution itself. par- growing A ing the child. number grandparents themselves would defend protect hiding children to ents are grounds they reasonably be- physical from and sexual abuse. See them grandchild lieved was abused and Abuse Allegations Child Sexual Myers, relitigation cause would effect Litigation: Custody and Visitation original decision made in critical Improved Fact Recommendations Protection, Finding and Child Studies show that already provides J.Fam.L. The law in Minnesota abusé, some- parent allegations in such a of sexual while custodial redress for a fabricated, very genuine. pro- This often 611A.04. times situation. Minn.Stat. § normally strong- may Family ties are jury It be Id. at does not allow trial. vision law, If money damages. a that, er than fear of area of this sensitive trial, child is jury parent grandparent or believes a is better than a judge’s discretion certainly grandparent or will danger, parent almost at which a child would liability stop not consider tort any event, probably In this would testify. have to denied, acting protect the child. It will cert. 460 U.S. S.Ct. before (1983). dignity grand- if 75 L.Ed.2d 787 not add to the of the law providing are sued for shelter to parents by It has advocated some that this been situations. grandchildren their such gaps.” taking tort “fill in the Before will step, may profoundly and such a which new tort scope liability under this relationships permanently affect be- litiga- proliferation may also result children, parents, grandpar- tween Liability under the tort is contem- tion. ents, uncles, segment aunts and a broader taking the plated only physically not society study, and of our should debate “providing child for such conduct but action, this and if such a tort is to consider by the child was carried the means which scope adopted, decide how broad its and be on the Prosser & Keeton Law of off.” reaching damages how far its award of will Torts, at note 32. Larson not text be. alleges affirmative acts only certain alleges and uncle also grandparents process in- Expanding the adversarial give failure to correct information contrary to the clude this new tort best whereabouts, thereby de- only Jessica’s intensify about interests of children and will aggravating discovery his laying intrafamily growing conflict out of mar- deterring parental and financial harm. Once we riage dissolution without contemplated by the Re- adopt the rule abduction. statement, integral it soon will become an part, part. reversed in Affirmed family law. Such a tort

part of Minnesota weapon revenge сould used as a POPOVICH, (dissenting). Chief Justice clearly apparent in hostility as is continued majority I on the issue of concur with this case. respectfully I dis- personal jurisdiction. of an action for interfer- sent on the issue Legislature has The Minnesota and would affirm ence with intelligently problem. this Child dealt majority’s em- appeals. the court parent noncustodial is a abduction aspects ig- the case phasis on limited adopted The state has also serious crime.4 involving facets elemental fair- nores those Custody Jurisdiction Act Child Uniform honoring order. ness and a custodial means for en (UCCJA) provides a Policy: Public across state lines. forcing custody decrees important public policies analyzing have broad discre In addition our courts consider, case, we should raised custodial and visitation protect tion to a.) (cus alia, following re factors: subd. 3 inter rights. Minn.Stat. § regard orders spect unappealed court move child out of parent todial b.) ing custody; recognized need for com is to interfere with state if intent visitation c.) developments in re historical (contempt pensation; court for rights) subd. 4 law; d.) aspects of the the moral with lated tort denial or interference unwarranted e.) conduct; prevention (judi defendant’s id. at 518.176 rights) visitation liability. punishment aspects of and visitation supervision cial Keeton, & Kee Prosser & W. Tischendorf, W. Prosser rights). See Tischendorf (5th 4, at 20-26 (Minn.1982) (approv ton on the Law Torts 405, 412 pa ed.1984). deprived of his Larson was parent ing requirement that noncustodial years in clear viola rights for seven transportation for rental provide post bond Similarly, Jes custody decree. child tion of the return of companion to secure adult right relationship visits), to a denied foreign sica was parent after to custodial Brown, Minn. 184 N.W. 956 ec v. noncustodial abduction 4. Child Minneapolis Underwriters Miller felony As Minnesota. Minn.Stаt. 609.26. Ass’n, out, N.W.2d 48 pointed appeals a criminal the court does not ex section 609.26 automatically give Minnesota Statutes plicitly rise to a civil statute does implicitly cause of authorize a civil expressly or unless the statute cause of action See, e.g., implication provides. Nem action. so clear 48 argue have stage Rigenhagens liability ‍‌​‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​​​​​​​‌​‌‌‌​​​​​​​‌‌‌‌‌​‌​‌​‍a critical tort will her

with father where, here, development. Although precious this little deterrent effect as form regained, alleged time can some actions lost never be interferers believe their undoubtedly Dunn, of redress is order. “morally right.” were Loree how- ever, custody order appealed neither protected long Tort law has “relational” petitioned change custody, nor for a of members, interests, family such as between required custody is estab- once has been Keeton, su- from Prosser & interference. lished, 19, Pepрin, 375 N.W.2d 25 Morey v. Parks, 124, see, 915; In re pra, e.g., at § (Minn.1985), instead fled the state with but (1964); Mil- 468, 548 127 N.W.2d custody Jessica. vests the cus- decree 400, Monsen, 37 N.W.2d Minn. ler v. 228 including parent rights, todial with certain bring (holding could action 543 child right upbring- to determine the child’s 1978, how- parent). for enticement of ing, education, care, religious health ever, legislature abolished alienation our training. 3(a); 518.003, Minn.Stat. balm” actions “heart §§ affection and other (1988). subject grave subd. 1 These to “have been because 515, legally protected against should inten- of March ch. abuses.” Act Const, 141, tional Minn.Laws interference. See Minn. art. §§ codified 553.01; Minn.Stat. see (everyone remedy entitled to §§ § Lindquist, character”). 278 N.W.2d 327 wrongs property Bock “person, to recognize (Minn.1979)(refusing to a cause No the law to party is above and resort by against parent relatives for of action justified. self-help such measures is not affections). These alienation a child’s notes, majority legal system As the bеcause, distinguishable limitations are person- arena not be the best to settle tort, “the custody with the interference al, Yet, family disputes. the familial rela- family accomplished by relations tionships already were wounded the di- tort, independent such as means some kidnapping vorce and before this action * * Keeton, supra, *.” & fraud Prosser Depriving brought. was the victimized (Second) 930; see Restatement redress, then, forum for of a will (1977)(“Restatement”) (parent Torts § necessarily promote family’s heal- no action for mere alienation of child’s has Further, ing. parent’s right to affections). Indeed, pleaded Larson also to a has been likened constitutional inalien- and, support fraud as a cause of action Minn. right. Whaley, able State action, Ri- the interference claims the (1956). 547-48, gave in- genhagens and Olson fraudulent Not conduct only is the violation to court doc- formation authorities right particularly egregious, of this it uments. arrogant of the sanc- done defiance litigation precipitated ac- This has bitter tity majority does not court orders. contradictory affidavits. Un- cusations interests are indicate how best of the child fortunately, personal disputes are such condoning activity. this type served parent-child today and the rela- common legislatures responded have State tionship increasingly threatened fami- UCCJ, by enacting designed crisis Stream, ly members. Anderson Cf prevent kidnapping shop- aimed at forum (Minn.1980) (abolishing ping gaining custody in hopes of immunity). Child parent-child abduction child. 518A.01 recurring scenario on the has become a Redress also has been at the fed- initiated situations, such landscape, law Kidnapping eral Parental Pre- level. See parties’ actions motivated where 96-611, Pub.L. No. vention Act emotions, runaway a dis- have evolved into (codified in scattered sections of Indeed, 100,000 Stat. 3566 turbing social about trend. U.S.C.); 18, 28 750,000 & U.S.C.A. kidnappings occur child (criminal (West penalty Supp.1989) abducting parent year, often each and the Larson, parental kidnapping). Minneso- friends. Under is aided relatives and code, to Dunn (citing authority). The ta’s current criminal 449 N.W.2d at 754

49 apparently pleaded guilty, felony it is a unifying N.W.2d at 755 n. 3 4.1& The intentionally deprive another of custodial running through thread these cases parental rights. or Minn.Stat. 609.26 recognition § tacit parent that a an has en (1988 statute, Supp.1989). however, forceable custody interest in the care and only provides discretionary for a award of of a minor child. recovering costs incurred the child and Scope Liability: compensation does not for other allow dam- Section 700 of the Restatement delin- ages resulting kidnapping. from the Id. at parameters eates custody tort: court, however, posi- subd. 4. This is in a gaps tion to fill the left laws who, knowledge One parent that the Keeton, 3, supra, area. See Prosser & consent, § does not abducts or otherwise at 19. compels or induces a minor child to leave parent legally entitled to custody its judiciary pro has broad discretion to parent not to return to the after it has rights. tect custodial and visitation him, subject been left liability (custodial to the par 3 § parent. may ent not move child out-state if intent is rights) to interfere with visitation & subd. (Second) (1977); Restatement of Torts 700 § (contempt 4 of court for unwarranted deni see, Larson, 756; e.g., 449 N.W.2d at see rights) al of or interference with visitation Keeton, generally supra Prosser & at 925. (1988); (judicial supervision id. at 518.176 § parents Because generally equal have an custody terms); see, e.g., and visitation right children, of access to their mainte- Tischendorf, v. Tischendorf nance of an interference action has been 405, (Minn.1982) (approving require 412 parents limited to physical entitled to sole parent post ment that noncustodial bond custody decree, under a court as Larson is. provide transportation for adult com See Restatement 700 comment c. § panion to secure return of child to custodial actionable, To be conduct visits), foreign denied, after cert. intentional, is, must be the interfer- 1037, 1426, 460 U.S. 103 S.Ct. 75 L.Ed.2d knowledge, ence must be done with as the (1983). By limiting frequency 787 admit, Rigenhagens away “that the child is circumstances under which custodial modi against parent.” from home ofwill made, may legislature fication be ac b; Restatement 700 comment but see knowledges importance maintaining Martin, 132, 139-41, Shields v. 109 Idaho a consistent and stable situation. 21, (1985) (civil rights 706 P.2d 29 action (1988). See Minn.Stat. The fact negligence theory against police allowed that alienation of affection actions are not abduction). aiding in officer for child’s Of does not viable remedies “diminish[] course, any consent the child is immate- relationships for interference with familial * * rial. Restatement Bock, Indeed, 700 comment a. Be- 278 at 328. knowledge cause liability appears for custodial interference lack Larson, focus, the national trend. 449 consent is the the actor’s “motive or See, (1985); Wood, (Iowa e.g., DiRuggiero Rodgers, v. 743 F.2d Wood v. 1009 338 N.W.2d 123 (3d Cir.1984) law); 1983); 213, (applying Jersey Engel, New Was Plante v. 124 N.H. A.2d 469 Wasserman, (4th 433, (1983); Magnuson, v. 671 F.2d 832 McBride v. serman Cir. 1299 282 Or. denied, law), (1978); Terebelo, 1982) (applying Maryland Spencer cert. 459 578 P.2d 1259 v. 373 1014, 372, (1982); denied, (La.Ct.App.1979), 200 U.S. 103 S.Ct. 74 L.Ed.2d 507 So.2d writ 376 Dawkins, (5th (La.1979); Fenslage Murray, v. 629 F.2d 1107 Cir. So.2d 960 Mathews v. 101 1980) Deitch, (1960); law); (applying Ga.App. Texas v. 660 113 S.E.2d 232 Bedard v. Kunz F.Supp. (N.D.Ill.1987) Hospital, (applying Notre Dame 89 R.I. 151 679 Illinois A.2d 690 McDonald, law); ‍‌​‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​​​​​​​‌​‌‌‌​​​​​​​‌‌‌‌‌​‌​‌​‍(E.D.Wis.1982), (1959); Loeffler, Armstrong Ala.App. Lloyd F.Supp. v. v. 39 539 998 (1958); Brown, (7th Cir.1982) 103 So.2d 818 Brown v. 338 694 F.2d 489 aff' d, denied, law); (1953), Kajtazi Kajtazi, (applying Mich. 61 N.W.2d 656 Wisconsin cert. (E.D.N.Y.1978) (1954); (applying 75 S.Ct. L.Ed. New 348 U.S. 644 Const., Crum, law); Montgomery D Ind. 161 N.E. 251 York D & Fuller CATV Inc. v. Howell, Pace, (Colo.1989); (by implication); Lucey, Howell v. 780 P.2d 520 Surina (1913); Bayer, Cal.App.3d Cal.Rptr. N.C. 78 S.E. 222 Clark v. Martin, Ohio St. Shields v. 109 Idaho 706 P.2d goes beyond from re- mere preventing the child tionable. A lie that purpose denial, return, however, inducing liability. not to result turning home it comment b. Accord- is at immaterial.” Id. 449 N.W.2d at 758. they that Rigenhagens’ claims ingly, the duty The tort a assumes owed third daughter for their acted “out love parties not to interfere with * * * sought no granddaughter their [and] parent’s rights custody vested de damage inflict on gain sought to oth- nor Larson, 758; at cree. Su irrelevant to issue whether ers” are Lucey, Cal.App.3d rina v. facie prima has established case. Larson Cal.Rptr. duty This also implied through parental Restatement, criminal any actor has been Under the E.g., kidnapping and abduction statutes. requisite may intent be liable. Cf. F.Supp. Lloyd Loeffler, (anyone commits Minn.Stat. who § (E.D.Wis.), (7th aff'd, 694 F.2d 489 Cir. prohibited charged with kid- acts 1982); Spencer Terebelo, 373 So.2d napping). Extended members and (La.Ct.App.1979); Minn.Stat. see parties for even third have been held liable 609.26, (reporting duty kid subd. 7 for See, § assisting parent. the noncustodial 609.495, napping); but Minn.Stat. § (grandpar- e.g., Lloyd, 539 at 998 cf. (1988) (prosecution harboring subd. for Helikson, ents); McEvoy v. 277 Or. exempted offender). felon for relative (1977)(attorney). 562 P.2d 543-44 Nonetheless, potential proof prob to due Liability contemplated only physi- is for not foreseeability concerns policy lems and child, taking cally but for such conduct notice, im we should be reluctant to means the child “providing the which pose liability to for mere failure inform. Keeton, was carried off.” Prosser & su- not, Thus, more, Olson would without fall key pra, 925. The is how active the at within tort’s ambit. Further dis participation Compare McEvoy, 211 was. however, may covery, disclose more ac (attorney Or. at 562 P.2d 543-44 give part on could tive role his which rise wrongfully provided passports who liability. to liable), Lipman, escape with Finn v. (Me.1987) (no A.2d contact posits “privileges,” The Restatement two al- with children and no affirmative acts “for whereby liability will attach rescu- liable). leged attorney not so ing physical child inflicted from violencе * ** inducing a child to its [and] affirmative In addition to purpose marrying its home for the leave Rigenhagens, acts of interference the actor.” Restatement 700 comments § however, impliedly Larson also claims the f; e cf. give to Rigenhagens’ failure and Olson’s (defenses parental kidnapping to to include and Lo- correct information about Jessica’s physical protect “child from or sexual as- delayed recovery, ree’s whereabouts their harm”). The or substantial emotional sault aggravating his emotional and financial protect to Rigenhagens claim acted give rise harm. Whether such conduct can believing Loree’s grandchild, claims liability is complicated to a more issue. sexually physically that Larson abused panel held: was Whether this belief reason- Jessica. knowledge of the Mere abduction scheme and whether the actions were taken able of the child or оf location and a good of the child would be faith behalf enough to come forward is to failure trier of by the issues for determination liability, special absent some status incur fact. impose duty on the would defen- Damages: to come forward with informa- dant * * * suffered severe simple A untruthful denial Larson claims he “has tion. suffering, anguish the loss of police and the defendant mental others companionship enough society of his child is not knew where the out-of-pocket cooper- daughter, and has incurred liability, incur nor refusal locating recovering the investigation necessarily expenses ac- an ate with * * * (2d 1985). custody services, of his in a sum in ed. Loss of historically $50,000.” complaint excess of also an essential element of consortium dam- alleges $50,000 damages in excess of ages, however, not required or is con- companionship Jessica’s loss of her father’s structively found in an action whеre the separation. Consistent with child has been taken parents. from the Restatement, panel the Larson held the Keeton, 924-25; supra, Prosser & following types damages to be recovera- Restatement 700 comment d. society, ble under the tort: lost expressly prohibited We have recovery distress, services, lost and ex- by minor children for loss of con- penses regaining incurred in custody and in resulting negligence sortium from the of treating injuries resulting the child for parties. Salin, third 322 N.W.2d at 738 from defendant’s tortious conduct. 449 (negligently 757-58; physical injuries inflicted N.W.2d at Restatement 700 com- § g. parents); damages Plain, ment Punitive Plain also have been 307 Minn. See, e.g., 403, awarded under certain facts. (1976) (mother 240 N.W.2d Leineweber, Kramer v. 642 S.W.2d negligently injures self); Eschenbach v. (Mo.App.1982) (conspiracy theory; Benjamin, 378, 379, 195 Minn. 263 N.W. awarded); punitive damages Lloyd, 539 154, (1935)(negligently physical caused (punitive damages at 1005 escalat- injuries father). policies The sound un- ing returned). mоnthly until child derlying limitation, however, such a are by The financial harm suffered the vic- inapplicable damages when the stem from parent timized is evidenced the over intentional harm to parent-child rela- $50,000 expended in costs Larson claims he tionship. Even the Salin court was “keen- Jessica, year the seven search for ly aware of the need of children for the time, including loss of expenses, travel at- love, society, companionship, guidance torney private investigator fees and fees. parents; any injury of their that diminishes Although parental kidnapping our statute ability parent of a to meet these needs expresses policy that such costs be clearly is tragedy and harms all wrongdoer, born community.” members of that 322 N.W.2d provision is discre- at 742. Parents have similar flow- tionary and Larson’s motion for such costs ing from family relationship. Per- apparently was denied in trial court point holding suаsive on this is the earlier expenses the criminal action. These also may that a child recover for enticement of under theory they recoverable were parent, just parent its may bring as the “incurred the successful enforcement of Minn, Miller, such an action. prior custody Larson, decree.” 37 N.W.2d support at 548-49. Further Thus, N.W.2d at 757. to the extent such by analogy employment found and con- costs have not been recovered under the tractual protected relations which are from statute, they should in a be available civil Minn, intentional interference. 228 action. Surely, N.W.2d at 549. the interests of damages Consortium include “[l]oss strong and child are as and the love, care, and, society, companionship, harm suffered from interference to their spouse, relations[,]” the case of a sexual as relationship great as inas these nonfamilial well as loss of services. Salin contexts. Common law consists “of broad (Minn. Kloempken, 322 N.W.2d comprehensive principles jus- based on 1982). here, While not claimed the loss of * * * tice, reason, and common sense [that compensable a child’s services is under the adapt] progress must as society Restatement, g, gener comment require.” Id. at 37 N.W.2d at 547. ally See, e.g., under case law. Minnesota deny recovery There is no reason to for the Coop. Eichten v. Central Minnesota Pow Ass’n, society companionship resulting loss er 28 N.W.2d egregious from such Judges and direct interfer- 10 Minn.Dist. Ass’n, Practice, parent-child Minnesota relationship CIVILJIG 175 ence with the was, she his whether as knew where

flagrant violation a court order ill or him. Larson was healthy, missed alleged here. visitation, custody and de- deprived all damages, the component of As another custody by spite having sole been awarded recovery custody contemplates tort principles of fair- How аre the court. distress, alleges, stem emotional Larson by denying this equity applied ness and ming interference. Restatement from the following the trend tort g. infliction comment Intentional states? distress, however, recog also is separate inde “as a nized Minnesota Permitting a of action for interfer- cause Press pendent tort.” Hubbard United best inter- ence with does serve the (Minn. Inc., Int’l, encouraging the return ests the child 1983). pleads in the alternative imposing civil dam- of absent children conduct Rigenhagens’ and Olson’s that the ages remedy. “A tort suit be more will infliction the tort intentional constitutes child; likely speedy to effect a return of distress of emotional distress. Emotional cooperation by poten- it will result better un damages deemed recoverable have been seeking third-party to avoid tial defendants tort and der custodial interference both the. suit; damages potential punitive will See, e.g., intentional infliction tort. deterrent; and in- serve as an additional (emotional Kunz, dam at 684 knowledge where- creased child’s allowed; contact with ages father denied through scope result abouts will the broad Smith, months); child for seven Sheltra v. Wood, discovery.” of civil-case Wood v. (1978)(emotional 392 A.2d 431 136 Vt. (Iowa 1983) (citing P. deni claim allowed for one month distress Hoff, Disputes Custody Interstate Child Brown, al); 338 Mich. Brown v. Kidnapping: Policy, Prac- and Parental denied, (1953), 348 U.S. cert. N.W.2d Law, (1982)). majori- at 14-1 The tice 75 S.Ct. L.Ed. possibility, this ty does not consider Generally, damages for emo- to recover proper remedy lies in the con- claims the suffering, must 46; conduct process. Maj op. tional see Minn. tempt outrageous, “involving par- be extreme and (1988). It is inconceivable Stat. ch. 588 Hubbard, ticularly egregious facts.” contempt of a order could ever how service sug- the conduct 439. Because par- accomplished when noncustodial gested by potеntially facts fits within case, these ent, “disappears.” like Dunn this standard, I hold emotional dis- 588.04; (contem- this would §§ damages are recoverable under either tress service of arrest warrant or plating in- custodial interference or intentional contemptor). cause on order show course, recovery tort. double fliction Of that is clear majority decries further “[i]t plaintiff permitted, and the bears tort would be used as new that demonstrating heavy “the severi- burden weapon” in cases. Id. at 46. dissolution ty Id. his mental distress.” present case the statistics and the con- As firm, kidnappings it child Conclusion: have of sexual abuse that be- accusations that in- agree majority “best I with weapons” in the “new dissolution come considered, of a child should be terests” cases. principles. exclusion of other but not always There have been reme- majority not consider the child’s does years to Dunn within the court seven dies available interests Jessi- best pursued she none of them. priv- system, yet her were denied familial ca and father n Instead, Dunn fled the state with Loree yet majority now laments ileges, Jessica, brazenly determi- defying court Dunn has seen Loree If nation of the child’s best interests. one was reunited with years two since Jessica know, however, paramount system stands our principle her father. Dunn does person, that no one jurisprudence, are. it is her former where Jessica and husband mother, father, president pauper stands years, never During those seven this, above the In a law. case as the best

interests of the child must be considered

together respect legal system. our appeals

I would affirm pan- the court of

el.

YETKA, (dissenting). Justice join

I in the dissent of Chief Justice

Popovich.

KELLY, (dissenting). Justice join

I in the dissent of Chief Justice

Popovich. Appeal

In re the of Gerald BRINE and

Beverly Brine, from the Denial of Their

Conditional Use Permit the Crow

Wing County Adjustment. Board of

No. C6-90-84.

Supreme Court of Minnesota.

Aug. Fitzpatrick, Fitzpatrick, Larson,

Thomas Nelson, Fitzpatrick Brainerd, for Gerald Beverly Brine. Rathke, Stephen Wing County ‍‌​‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​​​​​​​‌​‌‌‌​​​​​​​‌‌‌‌‌​‌​‌​‍C. Crow Atty., Dennis Lothspeich, M. Asst. Crow Wing Brainerd, County Atty., respon- dent.

KEITH, Justice. petitioners Beverly Gerald and Brine Wing County the Crow Board of Ad- justment separately petitioned have court for further review of a decision of appeals reversing the court of the trial pro- court’s determination that because a

Case Details

Case Name: Larson v. Dunn

Court Name: Supreme Court of Minnesota

Date Published: Aug 31, 1990

Citation: 460 N.W.2d 39

Docket Number: C7-89-1139

Court Abbreviation: Minn.