MacKintosh v. Carter

and Barbara Donald P. MACKINTOSH

Mackintosh, Appellants, Plaintiffs and CARTER,

Guy A. Sondra Carter Carter,

Kristina Defendants Appellees.

No. 16401.

Supreme Court of South Dakota. 31, 1990.

Jan. 8, 1990.

Rehearing Denied Larson,

Jоhn L. Wilds and Starla R. Woods, Fuller, William Fuller of Shultz & Smith, Falls, plaintiffs appel- Sioux lants. Falls, Hoy Hoy Hoy,

James L. & Sioux appellees. for defendants and ACTION TICE, Judge. Circuit (Mrs. and Barbara Donald Mackintosh Mackintosh) appeal summary judg- from a (Dr. Guy ment entered favor of Carter Carter), (Mrs. Carter), Sondra Carter (Kristina). Kristina Carter We affirm. FACTS Mackintosh, mother of Blakе Mack- (Blake), against brought intosh suit 1987, alleging August Carters in three causes of action: (1) Enticement of affections or alienation child, of a (2) slander, and Libel and (3) infliction of emotional dis- Intentional tress. party plaintiff pur- joined

Donald was as a 15-6-19(a) in November suant to SDCL allegations arise out of ‍‌‌​‌‌​‌​​‌​‌​‌‌​​​‌​​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​​​‍facts place from late December 1986 took During through March 1987. the 1986 Blake, custody parent a foster holidays high a school remained in the of Christmas senior, of time as spent proceedings considerable amount until were dismissed girl- visiting 1987, his May at the Carter residence when Blake turned 18 moot Kristina, friend, from col- who was home old. years holidays. 'After legе in Indiana for the that Mr. and Mrs. Mackintosh admit staying meals missing several and “minor con- problems of a nature” existed Eve, parents out on New Year’s Blake’s Blake; cerning relationship how- their with re- grounded him had until after Kristina ever, they claim that the Carters interfered 4, college January Both turned to on 1987. Blake, discipline attemрts their with and Mackintosh residences Carter him, wrongfully asserted influence over located in Sioux Falls. him from home. and enticed weeks, During the several Blake next however, that his stated he left home vol- unhappiness his at told the Carters about untarily love not and that and affection did home, fear of his father and his contem- his when left. also exist his home he Blake parents re- plation suicide. Blake’s had of actively encouraged that said the Carters sponded to ‘his threats suicide keep him to the lines communication very grounding him. Blake became de- open parents. with his spondent. He in detail to Mrs. described granted The trial court the Cаrters’ mo- exactly he su- Carter how would commit summary judgment July tion for 1988. 5, 1987, contact- February icide. On Blake Threshold, Project at a home personnel ed SUMMARY JUDGMENT runaway teenagers. briefly for ex- He Summary judgment proceedings are not plained requested his and infor- situation remedy trial is a substitute for program. get mation on how to into their only authorized when the movant is enti the Child Mrs. Carter communicated with as a matter of tled law be Department Protection Division of the no fact. cause there are issues of material (DSS) February on 10. On Social Services Bank, v. Miners and Merchants Caneva February 11 Kludt visit- social worker Jodi (S.D.1983). moving 335 N.W.2d 339 her ed Blake at school. Blake told with clearly party has the burden to show his and had that he was afraid of father fact no issues material exist. previously attempted suicide. The situa- The evidence must be most favor viewed evening tion came to head the of Febru- ably non-moving party reason ary After with phone 13. conversation against the ablе doubts should be resolved 10:00 Blake into p.m., DSS at checked moving party. Klatt v. Ins. Continental February Project Threshold at 3:00 a.m. on Co., (S.D.1987). N.W.2d See also requested not parents Blake his Co., 14, Railway By February dated Wilson Great Northern be notified. letter 207, (1968). formally 157 N.W.2d 19 The non- requested Dr. Carter S.D. moving opposing of the motion for party evaluation Mackintosh home because sum Mr. mary judgment present specific of concerns emotional abuse must facts again contacted genu Mackintosh. Mrs. Carter demonstrate the existence expressing Blake’s ine, trial; DSS her concerns for allega mere material issues for well-being. preclude tions are suffiсient summa not Koch, 383 ry judgment. Laber v. subsequently contacted the state’s DSS (S.D.1986). Finally, appeal, affirm situa- attorney’s office to review Blake’s if summary judgment proper of a ance early dependence tion. In would any there exists basis which neglect by the proceedings were instituted ruling. Pickering trial Pick court’s attorney deputy expressed state’s who ering, 434 N.W.2d risk, that Blake a suicide needed belief was care, psychiatric psychological LIBEL/SLANDER that care if he were would receive cause of temporary guardian home. A Mr. and Mackintosh’s return properly appointed Blake for and slander was on March action libel by summary judgmеnt for two INTENTIONAL dismissed INFLICTION OF First, EMOTIONAL pursuant to SDCL 26-10- DISTRESS reasons. liability immune from the Carters are The tort of intentional infliction of making suspect- faith requires emotional distress “conduct ex immunity ed child abuse. This also ex- ceeding usually by bounds tolerated de “any person good who in faith tends to society cent and which is of a nature espe proteсtion a child team or cooperates cially cause, with cause, calculated to and does any services in department the of social mental distress of a very serious kind.” Intern., placement Tenneco, Inc., or investigation, treatment Groseth Inc. v. 410 (S.D. 1987). N.W.2d 159 plan.” The record does not indicate The Groseth court Id. prima listed the facia elements of the tort: any good by faith in the action lack Carters; fact, in conduct dem- Carters’ 1. An by act defendant amounting to good faith concern for Blake’s outrageous conduct; onstrates a extreme and Thus, immunity pursu- situation. attaches part Intent on the of the defendant ant to SDCL 26-10-14. plaintiff to cause the severe emotional distress; Secondly, enjoyed Carters 3. The defendant’s conduct was the 20-11-5(3) qualified privilege under SDCL plaintiff’s injuries; cause in fact of provides, in part, that the communi plaintiff 4. The suffered an extreme dis- privileged cation is when made “without abling response emotional to defen- malice, therein, person by to a interested dant’s conduct. interested, one who is also ... as to afford daughter’s The Carters allowed their ground supposing a reasonable for the mo ‍‌‌​‌‌​‌​​‌​‌​‌‌​​​‌​​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​​​‍ boyfriend, home; they to visit their tive for the communication innocent....” him stay also allowed for meals. As Dr. goes provide The statute оn to that in such acquainted Carter became more malice situations cannot be inferred from Blake, they keenly with also aware became itself; publication the communication or unhappiness of Blake’s and his suicidal specific showing thus “a of malice is re They responded tendencies. with quired purposes raising for They reported for him. also their concerns Sloat, issue of material fact.” Uken v. 296 proper Clearly authorities. this con- (S.D.1980). qualified 540 N.W.2d Once outrageous duct is not extreme and —it established, privilege plaintiff “must does not exceed all bounds tolerated there dis establish reckless fact, society. society encourages decent regard part truth on conduct, as evidenced the child i.e., [defendant],” “in fact defendants reporting abuse statute discussed above. regarding entertained serious doubts” Further evidence of the reasonableness of (citations truth of the communication. Id. that the the Carters’ conduct is the fact omitted). Clearly Mr. and Mrs. Mackintosh necessary place authorities found it required “specific have not made the show period time. Blake a foster care for ing of malice”. Blote v. First See Federal Summary judgment on issue was clear- Ass’n., and Loan 422 N.W.2d 834 Sav. ly warranted. OF AFFECTIONS ALIENATION hold that the made the

We OF A CHILD good faith and therefore are immune liability from for communications made to final Mr. and Mrs. Mackintosh’s DSS. also hold that the Carters’ com- We of action was for enticement of a cause munications were between interested indi- parents, alienation of af child from his 20-9-7(2). viduals and were made without malice and fections of a child. SDCL This faith cоncern for Blake’s well-be- articulated its views con court has never therefore, ing; summary cerning the motion for of alienation of whether tort cause of proper- on liable and slander was affections of a child is a valid recognized common ly granted. action. We have alienated, indeed their cоn- affection of a could have but tort alienation of law Hunt, highest qualities and vir- spouse. Hunt N.W.2d duct reflected See Miller, (S.D.1981); society. jeopard- Pankratz Far tues within our from (S.D.1987); Pickering, su relationships izing family, with the the Car- spousal affec pra. Unlike alienation of encourage sought ters those relation- tions, of affections a child the alienation time, protect ships at the a child’s same legal heritage. A enjoy the same does well-being. Their physical emotional and majority jurisdictions have refused to exemplary. and motivation was conduct Lis, recognize tort. See Bartanus v. clearly They acting to simply (1984); A.2d 1178 Pa.Super. they protect the welfare of a child whom Barnett, (Mo. 544 Hester v. 723 S.W.2d in To a civil jeopardy. viewed to allow be N.C.App. 78 App.1987); Bruney, v. Morris pursued against suit individuals act- to be 668, (1986); Raftery 561 v. 338 S.E.2d ing travesty is a on behalf children (4th Cir.1985) Scott, (applying F.2d 335 756 justice system. of the the law and an abuse Moldovan, law); 166 Virginia Hyman v. alone, properly facts their case was On the 891, (1988); Ga.App. 305 S.E.2d 648 Scholz judgment by summary because ‍‌‌​‌‌​‌​​‌​‌​‌‌​​​‌​​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​​​‍dismissed 647, Scholz, N.J.Super. 427 A.2d 619 v. 177 no evidence to the belief there is (1980); 326 Lindquist, v. 278 N.W.2d Bock acting in any fashion the Carters were Rosenbaum, (Minn.1979); McGrady v. 62 the the affections of child. alienate (1970); 182, 181 aff 'd Misc.2d 308 N.Y.S.2d protection paramount should be of children 917, (1971); 876 37 324 N.Y.S.2d A.D.2d society. responsibly in act our Efforts 700, Briggs, Mass. 220 Ronаn v. 351 applauded be on behalf of children should (1966); also, v. N.E.2d 909 see Orlando encouraged, the subject not made mat- Cir.1981) Alamo, (8th (apply F.2d 1288 646 ter suits. of civil law); v. ing Schuppin Arkansas Unifica summary Having judgment found that 603, (D.Ver.) Church, P.Supp. 435 608 tion proper, was on all causes action (2nd Cir.1977); 573 F.2d 1295 aff’d Whit appeal other issues raised on need be 192, Critchfiеld, Ill.App. 144 3rd ehorse The decision of trial court addressed. 621, (1986); 98 Ill.Dec. 494 N.E.2d Hix will be affirmed. 72, 306 Md. 507 A.2d 607 Buchberger, on v. (1986). part a refusal rests on the Such C.J., WUEST, and MORGAN and theory recognize that to the cause of action MILLER, JJ., concur. pawn “hostage a or a would make a child Hester, 723 S.W.2d at disputes.” HENDERSON, J., dissents. 555; Bock, 278 N.W.2d at 328. SABERS, TICE, Judge, for Circuit Only appears recоg- to have one case J., disqualified. tort, absent actual abduction nized this Gleason, In kidnapping. Strode HENDERSON, (dissenting). Justice (1973), 250, 510 P.2d a Wash.App. Fort Agr. In Credit v. American Indian Washington par- appeals court found that (S.D.1985) Pierre, we 379 N.W.2d “against an action ent could maintain alia, judg- expressed, summary . inter maliciously party third who alienates rеmedy and should be ment is an extreme According a minor child.” affections of only truth clear and awarded when the showing court, unjustifiable of an touching the existence reasonable doubts rela- parent/child interference within the should be resolved issue tionship meet the maliciousness re- would against the movant”. quirement. case, summary reach issue of whether We need not every reasonable inference evidence and tort of affection of a child of alienation be most Dakota, arising must viewed in South is a valid cause action .therefrom party. nonmoving favorably toward the very easily and however. This case can Hеre, all the plaintiffs are have readily only facts. be decided Not inference every reasonable evidence ‍‌‌​‌‌​‌​​‌​‌​‌‌​​​‌​​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​​​‍was there little affection which Mackintosh’s, arising favorably therefrom viewed most apparently out of a de- Trapp Pacific, them. towards v. Madera sire to condone the relatiоnship of their Inc., 390 N.W.2d daughter with Blake. Mackintosh’s had a right to raise their son. A question factual case, contrary, To absolute arises as to whether Carters interfered defendants, moving party, the have had all right. with that favorably of the evidence viewed most to- them, moving party. wards 19:18, In Proverbs it is written: “Chas- your tise son while there hope”. exists deposition conflicting One and a host of suggest affidavits all that there are cer When the evidence light is viewed in a tainly by jury. factual issues to be tried Plaintiffs, most favorable to the appears it VI, Constitution, South Dakota art. § Blake had a nourishing childhood. begins right with these “The words: episode This entire instantly created by jury trial shаll remain inviolate and shall when Blake failed to come home for dinner regard extend to all cases at law without to on nights. 3 successive As Blake’s involve- controversy, the amount in Grigs ..In ment with daughter the Carter’s intensi- Larson, by v. S.D. 124 N.W. 856 fied, his absence from home became more (1910) held this Court that said constitu commonplace. Carters seemed to encour- provision preserve right tional did to a age relationship and the absences of jury trial in those that were causes triable Blake from his home. Mackintoshes jury to a at common law. “grounded” Blake, son, their whereupon suggests record There are affidavits and attached exhib- Carters encour- aged boy question its which reflect that the Blake to break his curfew and to (at home) away enticed condone relationship from his home and his his parents college to live within the home of the Car- with an adult student. provides: rights ters. SDCL 20-9-7 “The 26-10-14, Under SDCL “im Carters are (2) personal of relation forbid: The abduc- they mune” if good file a if it is “in tion or enticement ... of a child from a legitimаte, honest, faith.” There is a parent showings, ...” There are if viewed “good real factual issue as to the Carter’s light favorably in a most toward the Mack- “good faith.” Is it faith” to woo a child intosh’s, establishing parents delinquency? into A question factual young lad insisted that he be home arises, facts, totality under the of these p.m., partici- 11:00 whereas the Carters regarding immunity of the Carters.* pated in kept activities which him out into Dr. Carter used his office to influence early morning hours; appellee Kristina Department by using of Social Services Carter, boyfriend, wrote to her a letterhead South Dakota School of swirls, around this controversy whom letter, Medicine. In said he accused the he, Blake, my should come and “with live parents inflicting of Blake of significant There establishing folks”. is evidence non- degree period of emotional abuse for a suicidal conduct and character of Blake. wife, Sondra, years. several His delivered

There is evidence suggest to that there was highly damaging depart- letter to said absolutely no emotional of Blake. abuse Surely, question ment. this raises a suggest There is evidence to that the Car- (for decide) jury malice under all of the parent/child ters interfered with the rela- circumstances. tionship young and alienated this man from parents. evidence, his my оpinion, There is in this In here State strikes record, suggest family. that the emphatically against Carters inflict- most Civ- ed, intentionally, upon according emotional distress fall to the na- rise and ilizations * appears parents perceive position There to be no doubt that the Sioux Falls. I the Carters’ young brought public this man were intо dis- parents brought upon be that the this them- appear and were credit of missed) forced to in termination raising teachings. selves this lad under false (which parental right proceedings were dis- not, they by a If did or did should be decided reputa- and that their name and jury under these facts. brought City question tion was into in the struc- family life and foundational

ture orga- central

tures. of the Christian and foundation

nization we find: 6:1-3 Ephesians order.

social in the Lord for obey your parents

Children father and mother. right. your Honor He did obey parents.

Blake did his (at least his father and mother

not honor And question). a factual

there is Brooks, 352 Ruple him. Under

upheld (S.D.1984) ques- a factual ‍‌‌​‌‌​‌​​‌​‌​‌‌​​​‌​​​​‌‌​​​‌‌‌‌​‌‌​‌​​‌​​​‌‌​​​‍if determine jury exists for the

tion conduct outrageous extreme

there was causing intentionally, recklessly,

either emotional distress.

severe Johnson,

Rick Johnson of Eklund & Davis, appel- Gregory, plaintiffs and lants. Jackson, Lynn, Donald R. Shultz of Bruntz, Betty et

Jonas BRUNTZ Lebrun, P.C., Rapid City, for de- Shultz & al., Appellants, Plaintiffs and appellee. fendant and RUTHERFORD, Kathryn L. WUEST, Chief Justice. Appellee.

Defendant and Betty Appellants, Jonas Bruntz No. 16591. Bruntz, al., as (collectively et referred to “Bruntz”), summary judg- appeal from a Supreme Dakota. Court of South by court. We ment entered the circuit on 1989. Considered Briefs Oct. affirm. Decided Feb. Bruntz, others, investors se- were promissory

curities and notes which Ruther- issued M.J. Rutherford. M.J. wife, (Ka- Kathryn L. Rutherford ford’s thryn), in these notes. was also investor not, re- however, partner with She was compa- spect to her investment husband’s ny. misappropriated M.J. Rutherford himself subsequently funds and found .un- he pay his As a result able to creditors. Chapter Bankruptcy filed a discharged subsequently 1982. He was court. bankruptcy order of debts to this dis- timely object Bruntz failed to charge. May filed a com-

On Bruntz court, bankruptcy seeking to re- plaint in M.J. discharge grounds on the voke fraudulently converted the Rutherford

Case Details

Case Name: MacKintosh v. Carter

Court Name: South Dakota Supreme Court

Date Published: Jan 31, 1990

Citation: 451 N.W.2d 285

Docket Number: 16401

Court Abbreviation: S.D.