#27754, #27775-r-JMK

2017 S.D. 92

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

SALLY RICHARDSON,                           Plaintiff and Appellant,

      v.

MICHAEL RICHARDSON,                         Defendant and Appellee.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                   THE HONORABLE ROBERT GUSINSKY
                               Judge

                                   ****


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.



                                   ****
                                            ARGUED OCTOBER 3, 2016
                                            REASSIGNED ON
                                            SEPTEMBER 8, 2017
                                            OPINION FILED 12/27/17
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KERN, Justice (on reassignment)

[¶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.


1.      Because “[a] motion to dismiss under SDCL 15-6-12(b) tests the legal
        sufficiency of the pleading, not the facts which support it,” Mordhorst v.
        Dakota Truck Underwriters and Risk Admin. Servs., 2016 S.D. 70, ¶ 8,
        886 N.W.2d 322, 323, we restate the facts as pleaded and alleged in the
        complaint.

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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,


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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,




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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


2.      Although the parties cited irreconcilable differences as the grounds for their
        divorce, the circuit court considered an email not a part of the pleadings as an
        admission that the pleaded conduct led to the divorce. Michael filed a notice
        of review on this issue, arguing the court erred by considering matters
        outside the pleadings. In the alternative, Michael submits that affirmance is
        still warranted even if a Rule 12(b)(5) dismissal was technically unavailable
        because the circuit court should also have granted his motion for summary
        judgment. The only matter the circuit court considered outside the pleadings
        involved the undisputed assertion that the pleaded conduct led to the divorce.
        Although the complaint does not specifically make that assertion, Sally’s
        arguments to the circuit court and here are predicated on that assertion.
        Therefore, we treat that assertion as a pleaded fact for purposes of our
        analysis. Further, because we reverse and remand, we do not reach the
        summary judgment question raised by the notice of review.

3.      We review a dismissal for failure to state a claim de novo. Nooney v.
        Stubhub, Inc., 2015 S.D. 102, ¶ 9, 873 N.W.2d 497, 499.

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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




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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 abolished by seven jurisdictions between 1914 and 1920, eroded gradually in

the ensuing fifty years, and has been transformed dramatically from a majority to a

minority rule since 1970.” Carl Tobias, Interspousal Tort Immunity in America, 23

Ga. L. Rev. 359, 359 (1989).

[¶13.]       In 1941, we first recognized the Legislature’s abrogation of

interspousal tort immunity in Scotvold. 298 N.W. at 272. We reached this

conclusion by analyzing the statutes enacted by the Territorial Legislature and then


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the State Legislature. Id. at 268. These laws affirmatively recognized that married

persons have separate legal identities complete with all the accompanying rights.

Id. The Legislature’s enactments led this Court to reiterate “certain more or less

obvious conclusions”:

              Obviously this legislation deals with more than the mere right of
              the wife to sue and be sued in her own name. It makes
              sweeping changes in her substantive rights. By these changes
              she emerges as a legal personality with the civil rights of the
              ordinary person. Among those civil rights with which she is
              clothed by these statutes is the right to protection from bodily
              harm.

Id. (emphasis added).

[¶14.]        The Legislature thus acknowledged the right of married persons to sue

in their own name. As we stated in Scotvold, this right is not merely procedural,

but substantive, and it offers protection to married persons. Id. The Legislature

has codified this right. See SDCL 25-2-15 (setting forth a married person’s right to

sue in his or her own name); Aus v. Carper, 82 S.D. 568, 574, 151 N.W.2d 611, 614

(1967) (“[T]he [L]egislature indicated an intention to place married women in the

same legal status as other persons, including actions and claims against her

husband.”).

[¶15.]        Although Pickering acknowledged that interspousal immunity in tort

actions had been abolished, the Court did not create its rule based on that doctrine.

See 434 N.W.2d at 763. Rather, it grounded its rule in “public policy.” Id. at 761.

But in effect, Pickering arbitrarily precluded tort relief for conduct that occurred




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during a marriage that later served as grounds for divorce.4 The rule operates to

obstruct justice and contravene the Legislature’s determination that married

persons have a substantive right to sue for redress and protection from harm.

[¶16.]         Although this Court has the power to declare public policy, as it did in

Pickering, it shares that power with the Legislature, and such power is subject to

the South Dakota Constitution. Dahl v. Combine Ins. Co., 2001 S.D. 12, ¶ 8,

621 N.W.2d 163, 166. Further, the Legislature “is closest to and best represents the

people.” Indep. Cmty. Bankers Ass’n of S.D., Inc. v. State ex rel. Meierhenry, 346

N.W.2d 737, 745 (S.D. 1984). Accordingly, exertions of judicial rulemaking based on

public policy must be mindful of the Legislature’s public policy determinations and

avoid overreach. “[W]e are not legislative overlords empowered to eliminate laws

whenever we surmise they are no longer relevant or necessary.” Sanford v.

Sanford, 2005 S.D. 34, ¶ 23, 694 N.W.2d 283, 290. “Public policy safeguards ‘that

which the community wants’ and not ‘that which an ideal community ought to

want.’ Therefore, ‘until firmly and solemnly convinced that an existent public policy

is clearly revealed, a court is not warranted in applying the principle under

consideration.’” AMCO Ins. Co. v. Emp’rs Mut. Cas. Co., 2014 S.D. 20, ¶ 10, 845

N.W.2d 918, 922 (quoting Barton v. Codington Cty., 68 S.D. 309, 322, 2 N.W.2d 337,

343 (1942)).




4.       The grounds for divorce are set forth in SDCL 25-4-2 are: adultery, extreme
         cruelty, willful desertion, willful neglect, habitual intemperance, conviction of
         felony, and irreconcilable differences.


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[¶17.]       In Sanford v. Sanford, we discussed Veeder v. Kennedy, 1999 S.D. 23,

589 N.W.2d 610, a decision in which we refused to abolish the tort of alienation of

affections because “its source was a statute, not case law”:

             The “public policy” argument of Kennedy cannot be supported by
             our system of law. SDCL 1-1-23 states that the sovereign power
             is expressed by the statutes enacted by the legislature. SDCL
             20-9-7 which authorizes Michael’s cause of action in this case is
             such a statute. Under SDCL 1-1-24 the common law and thus
             an abrogation of the common law are in force except where they
             conflict with the statutory will of the legislature as expressed by
             SDCL 1-1-23. We are unable to locate a single case in this
             jurisdiction where this Court has struck down a statute as a
             violation of public policy. As no constitutional defects are
             claimed by Kennedy, we are compelled to leave the cause of
             action intact and instead defer to the legislature’s ability to
             decide if there is a need for its elimination.

2005 S.D. 34, ¶ 23, 694 N.W.2d at 290 (quoting Veeder, 1999 S.D. 23, ¶ 23,

589 N.W.2d at 616) (emphasis added). Pickering made the mistake that Sanford

and Veeder warned against. Pickering did not “defer to the [L]egislature’s ability” to

decide whether to eliminate a right granted by statute. Id.; see also SDCL 25-2-15

(setting forth a married person’s right to sue in his or her own name). We, too,

should have felt “compelled to leave the cause of action [for IIED] intact,” thereby

preserving the substantive right the Legislature granted to married persons.

Sanford, 2005 S.D. 34, ¶ 23, 694 N.W.2d at 290.

[¶18.]       Further, while Pickering addressed several causes of action, the

reasoning it devoted to IIED is sparse. Indeed, the cupboard is bare when it comes

to justifications for Pickering’s IIED holding—the entire rationale is summed up in

a single paragraph:

             We first address the trial court’s granting summary judgment in
             favor of Jody and Tom on the cause of action alleging [IIED].

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             We believe 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. Furthermore, the law of this state
             already provides a remedy for this type of claim in the form of
             an action against the paramour for alienation of affections.

Pickering, 434 N.W.2d at 761 (internal citations omitted). Before stating its

holding, there is no explanation of why the tort of IIED should be unavailable when

it is predicated on conduct that led to the dissolution of a marriage. Moreover,

while Pickering deemed a cause of action for IIED unnecessary because an

alternative remedy existed in “the form of an action against the paramour for

alienation of affections,” id., there are at least two problems with this justification.

First, the existence of multiple applicable causes of action does not justify a rule

eliminating a cause of action. In other contexts, our law does not needlessly winnow

down the victim’s potential remedies when a tortfeasor commits multiple torts

against the victim. Second, this justification is unpersuasive under the facts of this

case: Sally has no alternate remedy because her husband was her abuser.

[¶19.]       The Pickering majority also considered the justification of interfamilial

warfare, albeit in the context of the plaintiff’s other action for fraud and deceit. The

majority stated that these too “should be barred as a matter of public policy”

because “the subject matter of this action is not one in which it is appropriate for

the courts to intervene[.]” Pickering, 434 N.W.2d at 761. The majority stated that

“[a]llowing [the plaintiff] to maintain his cause of action may cause [his] daughter

significant harm. This innocent party, who is now three years old, should not be




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subjected to this type of ‘interfamilial warfare.’” Id.5 Justice Henderson’s

concurrence in Pickering explicitly adopted the interfamilial warfare reasoning from

Richard P. and applied it to IIED:

               In my opinion, where man and wife are involved in a marriage
               relationship, there could always exist a tort for [IIED] where
               they had an argument. It could be over the family dog, who
               takes out the garbage, who forgot to pay the bill, or who is
               spending too much money. In other words, the laws should not
               provide a basis for interfamilial warfare between husbands and
               wives where our courts would be flooded with litigation.

Id. at 764 (Henderson, J., concurring in part, dissenting in part) (emphasis added).

[¶20.]         Although our prior opinions referencing the Pickering rule have also

adopted the interfamilial warfare rationale regarding IIED, see State Farm Fire &

Cas. Co. v. Harbert, 2007 S.D. 107, ¶ 14, 741 N.W.2d 228, 233; Henry v. Henry, 534

N.W.2d 844, 846 (S.D. 1995), Pickering’s broad holding barring claims of IIED does

not expressly rely on this justification. Rather, it appears that the Court in

Pickering was concerned with the fact that a three-year-old child would be subjected

to the turbulence resulting from her parents’ lawsuit. Id., 434 N.W.2d at 762. But



5.       It is worth noting that in the case Pickering cites in support of this
         proposition, Richard P. v. Superior Court (Gerald B.), 249 Cal. Rptr. 246 (Cal.
         Ct. App. 1988), the California Legislature had passed legislation supportive
         of Richard P.’s policy determination: “Richard contends that the action herein
         is barred by Civil Code section 43.5, sometimes referred to as ‘anti-heart
         balm’ legislation . . . which provides as follows: ‘No cause of action arises for:
         (a) Alienation of affection. (b) Criminal conversation. (c) Seduction of a
         person over the age of legal consent. (d) Breach of promise of marriage.’” Id.
         at 248-49 (internal citations omitted). While the court in Richard P. did not
         base its decision on the referenced statute, it surely played a role in the
         court’s assessment of California’s public policy. Critically, the South Dakota
         Legislature has not adopted similar legislation and in fact maintains the tort
         of alienation of affection. See Veeder v. Kennedy, 1999 S.D. 23, 589 N.W.2d
         610.

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if this justification is sufficient to deny a harmed spouse his or her remedy, why

does the Legislature permit litigation between people with children at all? The

familial difficulties that a child would face if her parents were on opposite sides of

an IIED action are similar to the difficulties faced in any other suit not barred by

public policy and in any divorce or custody proceeding. Further, Sally and Michael

have no children. Thus, if familial tranquility is the goal of the Pickering rule, it is

overbroad and unattainable.

[¶21.]       Likewise, the Pickering rule does not promote marital harmony.

Public policy favors the bedrock institution of marriage and seeks to nourish and

foster the marital relationship. The specific holding in Pickering is 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. But this means that the tort of IIED is available when the marriage does not

dissolve. In other words, a person being abused by their spouse may sue for IIED,

but only if they stay married to their abuser.

[¶22.]       Moreover, for conduct to be actionable under IIED, “it must be so

extreme in degree as to go beyond all possible bounds of decency, and be regarded as

atrocious, and utterly intolerable in a civilized community.” Estate of Johnson ex

rel. v. Weber, 2017 S.D. 36, ¶ 17, 898 N.W.2d 718, 726. Thus, a spouse seeking to

retain the full scope of his or her rights must endure unendurable conduct.

“Although the preservation of marital harmony is a respectable goal, behavior

which is truly outrageous and results in severe emotional distress should not be

protected in some sort of misguided attempt to promote marital peace.” McCulloh v.


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Drake, 24 P.3d 1162, 1169 (Wyo. 2001) (citing Henriksen v. Cameron, 622 A.2d

1135, 1139 (Me. 1993)). Indeed, where such conduct has occurred, there is little

marital harmony left to preserve.

[¶23.]       In failing to avert familial and marital discord, the Pickering rule also

diminishes justice because the remaining remedies available through other causes

of action may prove inadequate. For example, the torts of battery and assault are

available to a harmed spouse under Pickering. But intense domestic harm may be

inflicted in ways other than physical assault or the threat thereof. “The tort of

intentional infliction of emotional distress ‘is especially appropriate for a continuing

pattern of domestic abuse.’” Christians v. Christians, 2001 S.D. 142, ¶ 38 n.3, 637

N.W.2d 377, 385 n.3 (Konenkamp, J., concurring specially) (quoting Douglas D.

Scherer, Tort Remedies for Victims of Domestic Abuse, 43 S.C.L. Rev. 543, 544

(1992)). For example, Sally may be able to bring individual claims of battery and

assault against Michael, but she will not be able to seek a remedy, including the

possibility of punitive damages, for his outrageous conduct towards her. See Bass v.

Happy Rest, Inc., 507 N.W.2d 317, 324 (S.D. 1993) (“Punitive damages may be

considered in connection with [IIED].”). As the Wyoming Supreme Court

recognized, “[e]motional distress is as real and tormenting as physical pain, and

psychological well-being deserves as much legal protection as physical well-being.”

McCulloh, 24 P.3d at 1169 (citing Henriksen, 622 A.2d at 1139). The Pickering rule

therefore fails to address the harm remedied by a claim of IIED.

[¶24.]       The Pickering rule also creates an artificial barrier to tort recovery. In

Christians, this Court affirmed an award for IIED based on conduct arising after


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initiation of divorce proceedings. 2001 S.D. 142, ¶ 33, 637 N.W.2d at 384. Justice

Konenkamp’s special concurrence rejected as “artificial a distinction between acts

occurring before and after commencement of [a] divorce action” but joined “in the

Court’s recognition of the tort of [IIED] in the marital context.” Id. ¶ 38,

637 N.W.2d at 385 (Konenkamp, J., concurring specially). The concurrence

reasoned that whether an aggrieved former spouse could seek a remedy for “a

prolonged policy of sabotage, seeking to destroy his [spouse’s] future” should not

depend on when divorce papers are filed. Id. Likewise, the right to sue for IIED

should not depend on when an ex-spouse filed for divorce.

[¶25.]        The only remaining justification for the Pickering rule is to prevent an

IIED claim from being filed simultaneously with or after every divorce action and

avoid a floodgate of litigation. The concurrence of Justice Henderson in Pickering

reveals as much when he notes that our courts would be “flooded with litigation” if

IIED suits are permitted for conduct that led to a divorce. 434 N.W.2d at 764

(Henderson, J., concurring in part, dissenting in part). The assertion, however, that

there could be an IIED suit for every argument, whether over “the family dog, who

takes out the garbage, who forgot to pay the bill, or who is spending too much

money,” id., ignores the high hurdles a plaintiff must clear in order to prove an

IIED claim.

[¶26.]        “Proof under [IIED] must exceed a rigorous benchmark.” Weber, 2017

S.D. 36, ¶ 17, 898 N.W.2d at 726. A prima facie case for IIED requires a showing of

“(1) extreme and outrageous conduct by the defendant; (2) that the defendant

intended to cause severe emotional distress; (3) there must be a causal connection


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between the wrongful conduct and the emotional distress; (4) and severe emotional

distress must result.” Christians, 2001 S.D. 142, ¶ 23, 637 N.W.2d at 382. “The law

intercedes only when the distress is so severe that no reasonable person should be

expected to endure it.” Id. ¶ 42, 637 N.W.2d at 386 (Konenkamp, J., concurring

specially). Forgetting to take out the garbage and other garden-variety frictions

will not rise to this level.

[¶27.]        This high threshold prunes out nonmeritorious suits from the system,

and there is no reason to believe it will fail to do so for IIED claims based on

conduct during the marriage that also serves as legal grounds for divorce. Further,

courts are equipped to “sanction attorneys who regularly bring or assist in bringing

meritless tort claims in unison with divorce actions, as authorized by SDCL 15-6-

11(a)-(d).” Id. (Konenkamp, J., concurring specially). And “if a court dismisses such

a claim because it was frivolously or maliciously brought, then the court must order

the offending party to pay part or all of the expenses incurred by the defense,

including reasonable attorneys’ fees.” Id. ¶ 44 (Konenkamp, J., concurring

specially) (emphasis added). To deny relief to former spouses because of this

concern is contrary to good public policy and the role of the courts. As William

Prosser noted, “[I]t is the business of the law to remedy wrongs that deserve it, even

at the expense of a ‘flood of litigation,’ and it is a pitiful confession of incompetence

on the part of any court of justice to deny relief on such grounds.” William L.

Prosser, Handbook of the Law of Torts § 12, at 51 (4th ed. 1971). The trial courts of

this state are highly competent and routinely apply the appropriate burden of proof




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to dismiss frivolous claims. There is no reason to believe they will be unable to

properly evaluate these claims.

[¶28.]         With respect to the decisions of other courts, we note the rarity of the

exact issue now before us, namely whether public policy prevents a person from

bringing an IIED suit against a former spouse for conduct that led to dissolution of

the marriage. But “the majority [of courts] have recognized that public policy

considerations should not bar actions for [IIED] between spouses or former spouses

based on conduct occurring during the marriage.” Feltmeier v. Feltmeier, 798

N.E.2d 75, 82 (Ill. 2003) (emphasis added) (citing Henriksen, 622 A.2d at 1140). The

Feltmeier court remarked, “[W]hile we agree that special caution is required in

dealing with actions for [IIED] arising from conduct occurring within the marital

setting, our examination of both the law of this state and the most commonly raised

policy concerns leads us to conclude that no valid reason exists to restrict such

actions or to require a heightened threshold for outrageousness in this context.” Id.

“Indeed, judicial recognition of emotional distress claims in the context of marriages

has been described as a ‘national trend.’” McCulloh, 24 P.3d at 1169 (quoting

Meredith L. Taylore, Comment, North Carolina’s Recognition of Tort Liability for

the Intentional Infliction of Emotional Distress During Marriage, 32 Wake Forest L.

Rev. 1261, 1278 (1997)).

[¶29.]         Numerous states permit IIED suits between current or former spouses

for conduct that occurred during marriage.6 Although New York and Maryland



6.       The following cases touch on a variety of contexts and circumstances, but
         they all either affirmatively recognize that public policy does not prevent
                                                                 (continued . . .)
                                            -16-
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____________________
(. . . continued)
         IIED claims between current or former spouses; permit such IIED claims to
         advance to trial; or dismiss such IIED claims for failing to provide sufficient
         evidence or on other procedural grounds. See, e.g., Simmons v. Simmons, 773
         P.2d 602, 603-04 (Colo. Ct. App. 1988) (holding that “the trial court [did not]
         err[] when it allowed an independent civil action alleging the tort of [IIED]”
         between former spouses because “[i]n Colorado a wife may sue her husband
         for damages for personal injuries caused by the conduct of her husband”);
         Whelan v. Whelan, 588 A.2d 251, 252-53 (Conn. Super. Ct. 1991) (permitting
         an IIED suit by a plaintiff against her former husband for conduct before
         divorce because the fact that the defendant “is the husband himself should
         make no legal difference”), abrogated on other grounds by Venkatesan v.
         Venkatesan, No. MMXCV106002880S, 2013 WL 388126 (Conn. Super. Ct.
         Jan. 4, 2013); Spence v. Spence, No. K11C-06-035 JTV, 2012 WL 1495324 at
         *4 (Del. Super. Ct. Apr. 20, 2012) (granting defendant’s motion to dismiss an
         IIED claim by former spouse because “plaintiff has failed to sufficiently allege
         extreme and outrageous conduct as a matter of law”); Neal v. Neal, 873 P.2d
         871, 876 (Idaho 1994) (stating that “[i]ndependent of her attempt to recover
         for the interference with her marital relationship, [plaintiff] seeks to recover
         from [former husband], under theories of negligent and intentional infliction
         of emotional distress” but dismissing the claims based on the lack of evidence
         to show emotional distress); Feltmeier, 798 N.E.2d at 82 (holding that
         “neither the policy considerations commonly raised nor the law of this state
         support a conclusion that an action for [IIED] based upon conduct occurring
         in the marital setting should be barred or subject to any heightened threshold
         for establishing outrageousness”); Whittington v. Whittington, 766 S.W.2d 73,
         74-75 (Ky. Ct. App. 1989) (affirming a dismissal of an IIED claim filed in a
         divorce proceeding because the allegations did not “rise to the level of
         outrageousness necessary for tortious liability”); Caron v. Caron, 577 A.2d
         1178, 1179 (Me. 1990) (upholding a jury verdict for a plaintiff against her
         former spouse for assault, battery, and IIED both before and after their
         divorce); Okoli v. Okoli, 963 N.E.2d 737, 745-46 (Mass. App. Ct. 2012)
         (affirming dismissal of husband’s IIED claim against wife because “the wife’s
         actions as alleged fall short of the level of shocking malevolence required”);
         G.A.W., III v. D.M.W., 596 N.W.2d 284, 289-90 (Minn. Ct. App. 1999)
         (disagreeing in part with Pickering and holding that “[b]ecause interspousal
         immunity does not apply, we conclude there is no recognized legal barrier
         preventing a person from bringing fraud, misrepresentation, or [IIED] claims
         against his or her current or former spouse”); Germany v. Germany, 123 So.
         3d 423, 433-34 (Miss. 2013) (denying a motion by former husband defendant
         to transfer IIED claim brought by former spouse plaintiff to the court
         handling the divorce proceeding because plaintiff’s “claim against [former
         husband] for intentional and negligent infliction of emotional distress should
         be retained by the circuit court”); Horwitz v. Horwitz, 16 S.W.3d 599, 604-05
                                                                 (continued . . .)
                                             -17-
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____________________
(. . . continued)
         (Mo. Ct. App. 2000) (affirming the dismissal of plaintiff’s IIED claim against
         husband because plaintiff waived her argument on appeal by failing to cite
         authority indicating that res judicata and collateral estoppel did not bar her
         claim); Ruprecht v. Ruprecht, 599 A.2d 604, 605-06 (N.J. Super. Ct. Ch. Div.
         1991) (“Can one spouse sue the other for . . . [IIED] in absence of physical
         injury in a divorce action? There is no doubt that one spouse can sue the
         other for an intentional tort causing personal injury and the damage that
         ensues therefrom.”); Hakkila v. Hakkila, 812 P.2d 1320, 1326-27 (N.M. Ct.
         App. 1991) (holding IIED suits between spouses are not barred because “New
         Mexico has not witnessed an onslaught of claims of [IIED] by one spouse
         against the other”); Miller v. Brooks, 472 S.E.2d 350, 356-57 (N.C. Ct. App.
         1996) (reversing the dismissal of plaintiff’s IIED claim against spouse and
         others and remanding for trial because fact questions existed on whether
         defendants were liable for IIED); Miller v. Miller, 956 P.2d 887, 899-902
         (Okla. 1998) (reversing the dismissal of plaintiff’s IIED claim against his
         former wife and her parents because a jury could find their behavior
         sufficiently extreme and outrageous); Garber v. Garber, 32 P.3d 921, 922,
         924-25 (Or. Ct. App. 2001) (reversing summary judgment and remanding for
         trial a plaintiff’s IIED and battery claims against her former husband);
         Mazzone v. Mazzone, No. 10111-A-1980, 1981 WL 767 (Pa. Ct. Common Pleas
         Feb. 13, 1981) (requiring husband defendant to answer wife plaintiff’s
         complaint alleging IIED, among other torts, because the court abolished
         interspousal tort immunity for intentional torts); Wright v. Zielinski, 824
         A.2d 494, 499 (R.I. 2003) (affirming dismissal of an IIED claim by plaintiff
         against former wife for conduct that occurred during divorce proceedings
         because plaintiff failed “[t]o establish the causal connection between the
         wife’s alleged misconduct and the husband’s psychological and physical
         complaints”); Twyman v. Twyman, 855 S.W.2d 619, 620 (Tex. 1993) (“[W]e
         expressly adopt the tort of [IIED], and hold that such a claim can be brought
         in a divorce proceeding.”); Noble v. Noble, 761 P.2d 1369, 1370, 1374 (Utah
         1988) (deciding to “reverse the grant of summary judgment [for defendant]
         and remand for further proceedings on the claims of battery and [IIED]”
         brought by plaintiff against her former husband shortly after he “shot her in
         the head at close range with a .22 caliber rifle” and she filed for divorce);
         Endres v. Endres, 912 A.2d 975, 976-77 (Vt. 2006) (affirming the dismissal of
         plaintiff’s IIED claim against her former husband because she could not
         prove the intent required for an IIED claim); Fernau v. Fernau, 694 P.2d
         1092, 1100 (Wash. Ct. App. 1984) (stating that in an appeal from a judgment
         of divorce, “the parties agreed that [plaintiff’s] tort claims against [defendant]
         for outrage and [IIED] were not a proper part of the dissolution proceeding,
         and were to be reserved to [plaintiff]”); Courtney v. Courtney, 437 S.E.2d 436,
         443 (W. Va. 1993) (holding that a claim for IIED must be brought within two
         years in the context of an IIED suit by a plaintiff against her former husband
                                                                    (continued . . .)
                                             -18-
#27754, #27775

have adopted public policy prohibitions against IIED claims under similar

circumstances,7 this is the minority position. Many courts consider claims for IIED

against third parties with whom a spouse committed adultery to be, in effect,

actions for alienation of affections or criminal conversion. These courts dismiss

such IIED claims primarily because their state’s legislature abolished the torts of

alienation of affections or criminal conversion via statute.8 These cases, however,


____________________
(. . . continued)
         and accordingly reversing the trial court’s grant of summary judgment in
         favor of defendant former husband and remanding for trial); McCulloh, 24
         P.3d at 1170 (“We are convinced that extreme and outrageous conduct by one
         spouse which results in severe emotional distress to the other spouse should
         not be ignored by virtue of the marriage of the victim to the aggressor and
         hold that such behavior can create an independent cause of action for
         [IIED].”).

7.    Doe v. Doe, 747 A.2d 617, 621-25 (Md. 2000) (dismissing husband’s IIED
      claim against wife in a divorce proceeding because “[t]he public policy of this
      State, reflected in the abolition of the actions for alienation of affections and
      criminal conversation, required the dismissal of the tort actions asserted in
      this case”); Xiao Yang Chen v. Fischer, 843 N.E.2d 723, 725 n.2 (N.Y. 2005)
      (holding that New York does not recognize the tort of IIED between spouses).

8.    See, e.g., Bailey v. Faulkner, 940 So. 2d 247, 253 (Ala. 2006) (dismissing a
      plaintiff’s claim against a man whose allegedly intentional conduct led to the
      failure of plaintiff’s marriage and extreme mental anguish because “[t]he only
      claims stated by the allegations in this case assert the amatory torts
      abolished by [statute]”); Richard P., 249 Cal. Rptr. 246 (concluding that it is
      against California public policy to permit a claim for IIED against wife’s
      paramour based on conduct that occurred during marriage); Speer v. Dealy,
      495 N.W.2d 911, 914 (Neb. 1993) (holding that the tort of IIED is unavailable
      when it is in effect a suit for alienation of affections or criminal conversion,
      because the Nebraska Legislature abolished those causes of action); Koestler
      v. Pollard, 471 N.W.2d 7, 9-10 (Wis. 1991) (dismissing an IIED suit by a
      married man against his wife’s alleged paramour because plaintiff’s claim “in
      essence states a claim for criminal conversation and is barred by [statute]”
      and such a claim violates public policy); Strock v. Pressnell, 527 N.E.2d 1235,
      1243 (Ohio 1988) (dismissing a plaintiff’s IIED claim against a man whose
      conduct led to his divorce and emotional suffering because “the torts of
                                                                 (continued . . .)
                                           -19-
#27754, #27775

do not support a Pickering-type bar on IIED suits between spouses. First, the South

Dakota Legislature has not abolished the tort of alienation of affections, although

we have abrogated the tort of criminal conversion.9 See Veeder, 1999 S.D. 23, ¶¶

18, 23, 589 N.W.2d at 615-16. Thus, our law permits recovery against a paramour

for engaging in adultery to the harm of a plaintiff spouse. Second, these torts are

not remedies against a spouse, current or former, but are meant to provide a

recovery for the wrongful conduct of a tortfeasor outside of the marriage

relationship. Although these cases disapprove of IIED suits for conduct occurring in

marriage, they are inapposite to assessing whether Sally has a remedy against

Michael.

[¶30.]         On remand, the trial court must grapple with the problems recognized

in Justice Konenkamp’s special concurrence in Christians. Justice Konenkamp

identified a split among states over how joinder and principles of preclusion apply to

tort claims brought after a divorce action. Christians, 2001 S.D. 142, ¶ 47, 637




____________________
(. . . continued)
         alienation of affections and criminal conversation, which were abolished by
         [statute], are not revived by the recognition of the independent tort of
         [IIED]”).

9.       The tort of alienation of affections has three elements: (1) wrongful conduct
         by the defendant with specific intent to alienate one spouse’s affections from
         the other spouse; (2) loss of affection or consortium; and (3) a causal
         connection between such intentional conduct and loss. State Farm, 2007 S.D.
         107, ¶ 24, 741 N.W.2d at 236. “The tort of criminal conversion allows one to
         maintain an action for damages if it is shown that his or her spouse
         committed adultery with the defendant . . . .” Hunt v. Hunt, 309 N.W.2d 818,
         820 (S.D. 1981).

                                          -20-
#27754, #27775

N.W.2d at 387 (Konenkamp, J., concurring specially).10 Issues may also arise

regarding attorney’s fees and double recovery. Id. As the parties have not briefed

these issues, we leave them to the trial court to first consider on remand.

[¶31.]         Pickering established a broad holding based on a narrow set of facts

and did not contemplate the kind of circumstances now before us. In so doing,

Pickering also failed to defer to the Legislature. We overturn Pickering and allow

those otherwise unable to seek redress for the kinds of abuse Sally suffered to

pursue a claim for IIED. Because Pickering no longer mandates that a Rule 12(b)(5)

motion to dismiss be granted, we reverse the circuit court and remand for further

proceedings consistent with this opinion.



10.      States today remain divided over these procedural issues. 41 Causes of
         Action 2d 407 § 17 (2009), Westlaw (database updated December 2017)
         (surveying state court decisions). The majority either forbids joinder or, if it
         is permitted, strongly discourages it, “with the result that claim preclusion
         does not arise.” Id. With respect to claim and issue preclusion, some courts
         have crafted an exception due to the different purposes underlying divorce
         and tort actions. Clare Dalton, Domestic Violence, Domestic Torts and
         Divorce: Constraints and Possibilities, 31 New Eng. L. Rev. 319, 376-77
         (1997); Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24
         Fam. L. Q. 127, 131 (1990). Other courts highlight the difficulties joining a
         tort claim to a divorce action would present, concluding that doing so would
         unduly complicate the process. They therefore prohibit tort claim filed with
         divorce actions, and because the claim could not have been litigated in the
         prior action, preclusion does not apply. See, e.g., Nelson v. Jones, 787 P.2d
         1031, 1034-35; Noble, 761 P.2d at 1374 (citing Walther v. Walther, 709 P.2d
         387, 388 (Utah 1985)). The minority position examines whether the “action
         for divorce and [the] tort claim . . . evolve from a common factual nucleus and
         raise interrelated economic issues that should be resolved in a single
         proceeding.” Schepard, supra, at 131. However, courts must still determine
         “pragmatically . . . whether [a grouping] forms[s] a convenient trial unit, and
         whether their treatment as a unit conforms to the parties’ expectations[.]”
         Restatement (Second) of Judgments § 24 (1982). Thus, situations involving
         domestic violence may pose unique challenges. Schepard, supra, at 153; see
         also Dalton, supra, at 386-88; Scherer, supra ¶ 23, at 566-73.

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[¶32.]       ZINTER, Justice, and WILBUR, Retired Justice, concur.

[¶33.]       GILBERTSON, Chief Justice, and SEVERSON, Justice, concur in

result.

[¶34.]       JENSEN, Justice, not having been a member of the Court at the time

this action was assigned to the Court, did not participate.



SEVERSON, Justice (concurring in result).

[¶35.]       I agree that Pickering should be overruled, but only to the extent that

it is interpreted to mean that the right to sue for IIED depends on when divorce

papers are filed. A person being abused by their spouse should not have to stay

married to his or her abuser in order to seek redress. However, as Justice

Konenkamp recognized in Christians, “[a] spouse should not reap tort damages on

the same misconduct that generated an alimony award.” 2001 S.D. 142, ¶ 43, 637

N.W.2d at 386 (Konenkamp, J., concurring specially). More importantly, “counsel

must be aware that these matters are subject to the principles of preclusion through

res judicata and estoppel.” Id. ¶ 46. Indeed, issues tried and decided in a divorce

action could foreclose subsequent litigation on the same matters. Id.; Restatement

(Second) of Judgments § 24 (1982). Was the divorce truly a no-fault divorce? Did

the parties litigate issues of fault or seek alimony in the divorce proceeding? Justice

Konenkamp highlighted these and other concerns, and I adopt the principles

articulated by him in Christians. 2001 S.D. 142, ¶¶ 37-48, 637 N.W.2d at 384-87.

[¶36.]       A comprehensive law review article examined the effect of res judicata,

observing that res judicata may bar a subsequently filed interspousal tort action


                                         -22-
#27754, #27775

because an “action for divorce and [a] tort claim both evolve from a common factual

nucleus and raise interrelated economic issues that should be resolved in a single

proceeding.” Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24

Fam. L.Q. 127, 131 (1990). As explained in the Restatement (Second) of Judgments

§ 24(1), claim preclusion extinguishes “all rights of the plaintiff to remedies against

the defendant with respect to all or any part of the transaction, or series of

connected transactions, out of which the action arose.” Because the facts

establishing both claims—tort and divorce—are many times inseparably entangled,

a reasoned approach would be to apply the “same transaction analysis” to determine

the preclusive effect of a prior divorce action. Id.; Schepard, supra ¶ 36, at 135. The

same transaction analysis determines what factual grouping constitutes a

“transaction” by “pragmatically[ ] giving weight to such considerations as whether

the facts are related in time, space, origin, or motivation, whether they form a

convenient trial unit, and whether their treatment as a unit conforms to the parties’

expectations or business understanding or usage.” Restatement (Second) of

Judgments § 24(2).

[¶37.]       Over time, courts have expanded the possibility of spouses to recover in

tort for harm inflicted during the marriage. Schepard, supra ¶ 36, at 131. We now

join those courts and overrule Pickering. Therefore, it bears repeating the concerns

highlighted by Justice Konenkamp:

             What thresholds and sanctions, for instance, must courts impose
             to prevent meritless claims from congesting and polluting the
             domestic relations process? Should courts routinely allow these
             torts to be tried at the same time as the divorce action, or should
             they be tried separately? What are the preclusive effects of
             waiting to bring this tort claim until after the divorce? In

                                          -23-
#27754, #27775

             combining torts with domestic relations, can lawyers use
             contingent fee agreements in family law matters, or should they
             have separate fee agreements with the client?

Christians, 2001 S.D. 142, ¶ 39, 637 N.W.2d at 385 (Konenkamp, J., concurring

specially). As he said, “These are just a few of the many issues yet to be resolved.”

Id. Our decision today clarifies a party’s right to pursue tort damages but certainly

leaves many procedural and substantive legal issues unanswered because they are

not properly before the Court in this case.

[¶38.]       GILBERTSON, Chief Justice, joins this concurrence in result.




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