Intentional infliction of emotional distress stemming from parental alienation.

In Fujimaki v Ichikawa, Unpub Per Curiam Opin (#324173, 11/17/2015) the Court of Appeals reversed the trial court’s order of summary disposition on a claim of intentional infliction of emotional distress stemming from parental alienation.

Plaintiff’s complaint stated that the parties were previously married and had one child together, but they divorced in May 2004. In September 2008, defendant acquired sole legal and physical custody of the child. Plaintiff alleged that after defendant acquired sole custody, she commenced a campaign to destroy his relationship with the minor child. Plaintiff alleged that defendant consistently denied him parenting time, and, for that reason, was found in contempt of court on two occasions and sentenced to jail. Plaintiff claimed that the trial court ordered the child to stay with plaintiff during defendant’s incarceration, but defendant, the child, and the child’s school manipulated the situation, and the child stayed with a teacher instead. Plaintiff’s complaint further alleged that the trial court ordered the parties to undergo a psychological evaluation who found extreme parental alienation by defendant. According to plaintiff, the trial court also found extreme parental alienation by defendant, but concluded that it had limited options regarding custody arrangements because the child was 17 years old and his relationship with plaintiff was already damaged. Plaintiff alleged that he had no relationship with his son as a result of defendant’s willful and deliberate acts of denying him access to the child.

In order to establish a claim of intentional infliction of emotional distress, a plaintiff must show “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.” Graham v Ford, 237 Mich App 670, 674 (1999). Liability attaches when a plaintiff demonstrates that a defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. The test to determine whether a defendant’s conduct was sufficiently extreme and outrageous is whether the facts of the case would lead an average member of the community to arouse resentment against the actor and exclaim, “Outrageous!” Lewis v LeGrow, 258 Mich App 175, 196 (2003) (citations omitted). 

A claim of intentional infliction of emotional distress must be brought within three years after the claim accrues to avoid being time-barred. Nelson v Ho, 222 Mich App 74, 85 (1997). MCL 600.5827 provides that “the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” The term “wrong” as used in MCL 600.5827 refers to the date the plaintiff was harmed by the defendant’s act, not the date the defendant acted. Frank v Linkner, ___ Mich App___, ___ (2015), citing Moll v Abbott Laboratories, 444 Mich 1, 12 (1993). Otherwise, a claim could be barred before a plaintiff suffered any injury. Frank, supra. “Accordingly, a cause of action for a tortious injury accrues when all the elements of the claim have occurred and can be alleged in a proper complaint.” Schaendorf v Consumers Energy Co, 275 Mich App 507, 512 (2007) (citation omitted).

In this case, the harm on which plaintiff’s claim was based was parental alienation, or defendant’s destruction of the relationship between plaintiff and the child, which resulted in psychological damage to plaintiff. The trial court found that plaintiff’s claim accrued in September 2008, when defendant acquired sole physical and legal custody of the child and had the ability to effectively alienate the child from plaintiff. There is no evidence indicating that plaintiff’s relationship with the child was destroyed due to parental alienation at that point in time, or that defendant had yet exhibited intentional conduct that was sufficiently extreme or outrageous in nature to give rise to a claim of intentional infliction of emotional distress. 

Accepting plaintiff’s affidavit as true, facts sufficient to sustain the elements for a claim of intentional infliction of emotional distress did not arise until at least December 31, 2011, when defendant began denying plaintiff parenting time, which, it could be argued, constituted extreme and outrageous conduct. See Schaendorf, 275 Mich App at 512 (holding that a tortious injury claim does not accrue until all the elements of the claim have occurred). Moreover, it does not appear that the harm of extreme parental alienation occurred until 2013. In either case, plaintiff’s May 29, 2014 complaint fell well within the three-year limitations period for tort claims. Accordingly, the trial court erred by finding that plaintiff’s claim accrued in September 2008, and that summary disposition was therefore warranted under MCR 2.116(C)(7).