Haines v. Vogel

250 Md.App. 209

249 A.3d 151

Gregory HAINES

v.Gretchen VOGEL

No. 1789, Sept. Term, 2019

Court of Special Appeals of Maryland.

April 7, 2021

Argued by: John J. Condliffe (Shannon L. Boisseau, Levin & Gann, PA on the brief), Towson, MD, for Appellant.

Argued by: Geoffrey H. Genth (Andrew Jay Graham, Kramon & Graham PA on the brief), Baltimore, MD, for Appellee.

Panel: Graeff, Wells, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Wells, J. Appellant, Gregory Haines, filed a complaint against appellee, Gretchen Vogel, his former wife and the mother of their two children, alleging that her conduct toward him amounted to (1) tortious interference with visitation and custody and (2) intentional infliction of emotional distress. The Circuit Court for Carroll County dismissed the complaint with prejudice.

Mr. Haines filed a timely appeal and poses two questions which we have reworded:¹

1. Did the circuit court properly dismiss appellant's claim for intentional interference with visitation and custody?

2. Did the circuit court properly dismiss appellant's claim for intentional infliction of emotional distress?

For the reasons that we explain below, the circuit court properly dismissed the complaint. We, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Gregory Haines, (hereafter "Father") and Gretchen Vogel, (hereafter "Mother"), a married couple, had two children, J. born in 2000, and T., born in 2005.² The parties separated in October 2013 for various reasons including Father's self-admitted "marital misconduct." After the separation, it is undisputed that Mother had de facto physical and legal custody of the children.

Mother filed for divorce in December 2013, and according to Father, he was permitted access with the children, "six and a half hours a week." In February 2014, Mother filed a petition seeking domestic violence protection from Father. Although a court denied the petition, according to Father, the court entered a temporary order allowing him alternating weekend visitation with the children, plus one evening during the week.

We will discuss Father's allegations against Mother in detail later. For now, it is enough to say that for various reasons, the children grew reluctant or outright refused to visit with him. From October 2014 through October 2015, the parties turned to Amy Mazer, LCSW-C,³ to help them try to repair the relationship between the children and Father. That effort seemed marginally helpful, because the parties retained Dr. Paul Berman, Ph.D., a psychologist, to assess the parties, their children, and make "access and treatment recommendations" aimed at restoring some sort of relationship between the children and Father. Dr. Berman's report, dated July 13, 2016, is included in the joint record extract. About one year later, July 3, 2017, the circuit court appointed Rebecca Snyder, Psy.D., "to serve as the forensic reunification therapist." The outcome of these interventions are unknown. Based on what happened next, it did not seem that either Dr. Berman's or Dr. Snyder's efforts led to positive results.

On March 20, 2019, Father filed a complaint against Mother alleging in Count I, intentional interference with visitation and custody, and in Count II, intentional infliction of emotional distress. In Count I, Father alleged that Mother's continuing conduct had "deliberately and maliciously" deprived him of his "custodial and/or visitation rights and has alienated the children" from him such that a relationship with them was now "impossible." He demanded damages exceeding $75,000.00. In Count II Father alleged that Mother's conduct had caused him "extreme emotional distress." He demanded damages in excess of $75,000.00.

Mother moved to dismiss. She asserted that the complaint failed to state a cause of action. Specifically, with regard to Count I, she argued that the holdings in Hixon v. Buchberger , 306 Md. 72, 507 A.2d 607 (1986), Lapides v. Trabbic , 134 Md. App. 51, 758 A.2d 1114 (2000), and Khalifa v. Shannon , 404 Md. 107, 945 A.2d 1244 (2008), require finding that for Father to succeed on a claim of intentional interference of visitation or custody, he must allege that Mother physically removed the children so that it would be impossible for Father to visit with the children. As for Count II, citing primarily, Batson v. Shiflett , 325 Md. 684, 602 A.2d 1191 (1992), Mother claimed that Father's allegations, even if believed, did not amount to the type of outrageous conduct required to sustain an allegation of intentional infliction of emotional distress. Therefore, the circuit court properly dismissed the complaint.

Father maintained that "the lessons" from the holdings of the cited cases, is "that the conduct and the harm must be serious" to successfully prove intentional interference with custody. In Father's estimation the allegations he raised were several orders of magnitude more severe than the conduct in either Hixon or Lapides . Father argued that Mother's conduct was on par with the conduct under scrutiny in Khalifa . There, a mother moved her two minor children to Egypt without telling the children's father. A jury found that the mother had interfered with the father's custody and awarded him substantial money damages. 404 Md. at 113, 945 A.2d 1244. Father also argued that Mother's continuing efforts to keep the children from him were so outrageous that her conduct met the standard to support his claim for intentional infliction of emotional distress

On June 21, 2019, the circuit court held a hearing on Mother's motion to dismiss. After listening to counsels’ arguments, the court dismissed the complaint, but permitted Father to amend within thirty days. He did.

The amended complaint essentially restated Mother's alleged misconduct and added other examples, none of which alleged that Mother had physically removed the children to prevent Father from having contact with them. After a hearing on Mother's renewed motion to dismiss, the court dismissed Father's amended complaint with prejudice. Father subsequently filed this timely appeal. Additional facts are discussed below as necessary.

DISCUSSION

We review a circuit court's grant of a motion to dismiss without deference. "In determining whether the decision of a lower court was legally correct, we give no deference to the trial court findings and review the decision under a de novo standard of review." Lamson v. Montgomery Cnty. , 460 Md. 349, 360, 190 A.3d 316 (2018) (quoting Walter v. Gunter , 367 Md. 386, 392, 788 A.2d 609 (2002) ; Howard v. Crumlin , 239 Md. App. 515, 521, 197 A.3d 574 (2018) ("[T]he standard of review of the grant or denial of a motion to dismiss is whether the trial court was legally correct."

I. Intentional Interference with Visitation and Custody

Both parties rely for support on the previously cited cases of Hixon , Lapides , and Khalifa . We examine each case separately.

1. Hixon v. Buchberger

Jonathan Hixon and Linda Liebelt had a child during their relationship. A court order granted Liebelt residential custody of the child and granted Hixon specified visitation. 306 Md. at 73-74, 507 A.2d 607. Liebelt began living with and later married Paul Buchberger. Hixon sued Buchberger, claiming,

[t]hat on November 16, 1984, at a time when [Hixon] lawfully went to [Liebelt's and Buchberger's] address to pick up the minor child for visitation purposes, the Defendant Buchberger began making belligerent and hostile statements to [Hixon] in the presence of the minor child, stating that [Hixon] was not really the child's father. The said Defendant Buchberger made it difficult for the Plaintiff, Jonathan D. Hixon, to physically take his child with him to exercise normal visitation, at times the Defendant flatly refused to surrender the child to [Hixon] and repeatedly threatened violence.

Id . at 74, 507 A.2d 607. The circuit court dismissed Hixon's claim of tortious interference with visitation and Hixon appealed to this Court.⁴ Id . at 75, 507 A.2d 607. Before we could consider the appeal, the Court of Appeals granted certiorari.

In evaluating the circuit court's dismissal of Hixon's complaint, the Court reviewed decisions from the turn of the last century, observing that those cases dealt with tortious interference with domestic relations known as enticement or abduction of a child. Id . However, the Court determined that the Restatement (Second) of Torts (1977) ("Restatement"), section 700 was more applicable. That section states:

[o]ne 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.

Hixon , 306 Md. at 78, 507 A.2d 607. The Court concluded that comment g of the Restatement section 700 permitted,

a custodial parent who suffers the tort [to] recover damages for the loss of society of the child, for emotional distress resulting from abduction or enticement, for loss of service, and for the reasonable expenses of regaining the child and in treating any harm suffered by the child as a result of the tortious conduct.

Id .

Hixon acknowledged this lineage of cases but urged the Court to instead rely on the holding in Ruffalo v. United States , 590 F. Supp. 706 (W.D.Mo.1984), arguing that the cause of action should not be limited to the custodial parent. Id . at 79, 507 A.2d 607. In Ruffalo , the United States Court for the Western District of Missouri granted a mother a money judgment after she successfully sued for tortious interference of custody. There, the mother had legal custody of the parties’ minor son. The father and the child entered the Federal Witness Protection Program and were given new identities. Ruffalo , 590 F. Supp. at 709. The federal court found that the father's and son's entry into the Witness Protection Program "had the effect of destroying [the mother's] pre-existing legal right." The court found...