709 S.W.2d 45 | Tex. App. | 1986
Ronan Dale Silcott, plaintiff/appellee, brought suit against Bobby Oglesby, de
Oglesby presents five points of error. By his first point, Oglesby contends that the cause of action for damages asserted against him by Silcott was nonexistent in 1981 at the time of the occurrence of Ogles-by’s alleged conduct, and therefore the court erred in overruling his motion for instructed verdict and his motion for judgment n.o.v. Silcott argues that his suit is based on a recognized tort action, citing 67A C.J.S. Parent and Child § 130 (1978); W. Prosser & P. Keeton, The Law of Torts, § 103 (5th ed. 1984) and the Restatement (Second) of Torts § 700 (1977).
Silcott also cites Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir.1980), and its discussion of the Restatement rule as supporting his claim that a cause of action exists in Texas. In Fenslage, a diversity action, the United States District Court, based upon a jury verdict, awarded actual and exemplary damages to a mother who brought suit against her ex-husband and certain of his relatives alleging a civil conspiracy on the part of the defendants to take and conceal the whereabouts of her two minor children. The jury found in favor of the mother on the conspiracy issue
In the almost 141 years of its existence, the Supreme Court of this state has not recognized
The principles of law embodied in § 700 of the Restatement (Second) of Torts are considerably more comprehensive than the statutory provisions of Tex. Family Code Ann. §§ 36.01-.08. However, the tortious conduct alleged by Silcott and the relief sought by him fit neatly within the scope of the statute. Because in 1983 the legislature imposed civil liability on those who interfere with possessory interest in children created by court order, we conclude that the public policy of this state does not now require judicial recognition of the tort defined in § 700 of the Restatement (Second) of Torts or the adoption of the rules of any of the other states which do recognize the tort. See, e.g., Brown v. Brown, 338 Mich. 492, 61 N.W.2d 656, 659 (1953). Indeed, were our decision to the contrary, it would in all probability affect only the parties to the case before us. For these reasons, and because of the state of the law, we decline to declare that any of the principles embodied in § 700 of the Restatement (Second) of Torts (1977) and the comments thereto are a part of the common law of this state.
Since Silcott’s original petition did not allege a cause of action recognized under the common law rules of decision in this State, Oglesby’s first point of error is sustained. Our decision on the point is disposi-tive of this cause, and we do not address Oglesby’s remaining points of error.
.Section 700 of the Restatement (Second) of Torts reads:
One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.
. Including a violation of Tex.Penal Code Ann. § 25.03 (Vernon 1976).
. Act of June 15, 1977, ch. 508 § 1, 1977 Tex. Gen.Laws 1290, 1291.
. Tex.Fam.Code Ann. §§ 36.01-.08 (Vernon Supp.1986).
. Tex.Gov’t.Code Ann. § 311.022 (Vernon Supp. 1986).
. Congressional Act of Jan. 20, 1840, 2 H. Gam-mel, Laws of Texas 177 (1840) (codified at Tex. Rev.Civ.Stat.Ann. art. 1 (Vernon 1967)).
.Traditionally child custody orders have been civilly enforced by injunction, contempt proceedings, the constitutional writ of habeas corpus, and since 1975 the statutory writ of habeas corpus under Texas Family Code § 14.10.