Opinion
14-P-1979
02-04-2016
SUSAN A. BERUBE v. JAMES DEMAREST.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case is grounded in the deteriorating relationship between a mother and her teenage daughter. The mother, plaintiff Susan Berube, brought this action claiming that the daughter's teacher and confidante, defendant James Demarest, was partly to blame. Specifically, Berube claimed that Demarest intentionally interfered with her relationship with her daughter and authored a letter which intentionally inflicted emotional distress on Berube and defamed her. The action was dismissed on summary judgment by a Superior Court judge in a thorough decision. This appeal followed. We affirm.
Background. We summarize the relevant facts in the light most favorable to Berube. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Berube and her former husband (the father) had one child, Laura. When they divorced in 2000, Berube and the father were awarded joint legal custody of Laura. Berube was awarded sole physical custody, but the father had visitation rights. Demarest, a long-time middle school teacher, became acquainted with Laura during the 2006-2007 school year when Laura was in one of his classes. During that school year, Demarest spoke with Laura from time to time, and Laura confided in him about her home situation. Laura felt generally unhappy with the custody arrangement, which she believed was unfair to her father.
A pseudonym.
After the 2006-2007 school year, communication between Laura and Demarest ceased until 2010 when Laura began attending high school. By chance, they reconnected at a high school track meet. Thereafter, Laura expressed that she needed someone in whom to confide and Demarest became concerned about her disposition. Laura expressed that she was increasingly unhappy with her situation at home and threatened to run away from Berube to live with her father. Demarest offered to act as a go-between for Berube and Laura, but Laura specifically asked him not to communicate with Berube, a request which Demarest honored.
Eventually, Demarest contacted an attorney to inquire about his obligations as a mandated reporter under G. L. c. 119, § 51A. Demarest also, apparently at Laura's request, contacted the father, who also retained an attorney. The father and Demarest discouraged Laura from running away from Berube, urging her instead to participate in formal custody proceedings in an effort to change them to "50/50" or joint physical custody between Berube and the father.
In the course of preparing for these proceedings, Demarest drafted, at the father's attorney's request, a letter addressed "To Whom It May Concern" in which he related some of Berube's conduct as described by Laura. For example, the letter referenced "the time her mother cleared out and permanently hid all her clothes; the erasing of all the information on [Laura]'s cell phone . . . ; [and] the time, some years back, her mother snatched [Laura]'s favorite stuffed animal, took it outside to run over it with the car (and never returned it) . . . ." The letter also expressed Demarest's concerns over Laura's psychological well-being and the need for a custody change.
Demarest shared the contents of the letter with Laura before it was distributed. She found no errors in it. Demarest also showed the letter to the father and his attorney. Eventually, the letter was sent to Laura's school principal, the local police department, and various similar parties, and was submitted to the Probate and Family Court in connection with the custody proceedings. The Department of Children and Families also obtained a copy of the letter and investigated, but took no other action. Eventually, about the time that Laura turned sixteen, a Probate and Family Court judge awarded physical custody to the father, with whom Laura still lives when not attending college. Berube communicates with Laura regularly, but no longer has physical custody.
Discussion. Standard of review. The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law. Augat, Inc., 410 Mass. at 120. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). We review the grant of summary judgment de novo. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997).
Intentional interference with the parental relationship. The complaint alleged that Demarest engaged in a course of conduct designed to interfere with the relationship between Berube and Laura. The Supreme Judicial Court has acknowledged the tort of intentional interference with the parent-child relationship "as a contemporary expression encompassing actions for abduction, enticement, harboring, and secreting of a minor child from the parent having legal custody." Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 861 (1991). "Abduction is the physical taking of a minor child from the parent having legal custody." Id. at 860. Enticement means engaging in an "active and wrongful effort" that induces a child to leave the parent's home and knowing that the parent does not consent. Ibid. (citation omitted). Harboring a child is "inducing or encouraging a child, who is away from the parent without the parent's consent, to remain away from the parent." Ibid. Mindful of these principles, the Superior Court judge reasoned:
"Demarest's statements and actions consisted of listening to [Laura], telling her that he would support her, whatever her decision, helping her work toward a 50/50 custody arrangement and writing a letter in support of a change of legal custody. While his efforts may have been 'active,' he engaged in no 'wrongful effort.' . . . He only provided a sounding board for [Laura] and assisted her in using lawful channels, including probate court adjudication, to achieve her desired custody arrangement."Based on this fair summary of Demarest's conduct, the judge correctly concluded that Berube could not prove at trial that there was "abduction, enticement, and harboring and secreting" of Laura, or that Demarest engaged in "wrongful effort." We also discern no error in his conclusion that, even if there was a disputed fact as to whether or not Demarest encouraged Laura to change her custody arrangement, encouraging a move from one parent with legal custody to another parent with legal custody would not satisfy the elements of intentional interference with the parental relationship. Consequently, the claim of intentional interference with the parental relationship was properly dismissed.
The letter. The complaint alleges that by sending the February 3, 2011, letter to school officials, the local police department, and others, Demarest intentionally and maliciously inflicted emotional distress on Berube and defamed her. In order to survive a motion for summary judgment on the claim of intentional infliction of emotional distress, Berube must establish that genuine issues of material fact exist with regard to the following four elements: (1) that Demarest intended, knew, or should have known that his conduct would cause emotional distress; (2) that the conduct was extreme and outrageous; (3) that the conduct caused emotional distress; and (4) that the emotional distress was severe. See Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). Conduct qualifies as extreme and outrageous only if it goes beyond "all possible bounds of decency" and is "utterly intolerable in a civilized community." Roman v. Trustees of Tufts College, 461 Mass. 707, 718 (2012). Here, the letter simply repeats what Laura told Demarest about her living situation and her mother's forms of punishment, which Demarest prefaced with the following observation -- "[t]here are, of course, all the stories, which fly out of [Laura]'s mouth . . . ." It goes on to express concern for her psychological well-being and recommends a change in Laura's physical custody from mother to father. Even considering the contents of the letter in the light most favorable to Berube, the statements cannot be considered beyond all bounds of decency and utterly intolerable in a civilized society. Consequently, they do not rise to the level of extreme and outrageous. The dismissal of the intentional infliction of emotional distress claim was not error.
Berube also alleged that she was defamed by the letter. Defamation requires proof of the following elements: (1) Demarest made "a false statement to a third party of and concerning" Berube; (2) "the statement has a defamatory connotation"; (3) Demarest was "at fault in making the statement"; and (4) Berube "suffered a loss as a result." Scholz v. Delp, 83 Mass. App. Ct. 590, 593 (2013), S.C., 473 Mass. 242 (2015) (reversing on other grounds), quoting from Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003). Here there is a factual dispute regarding the truth of the punishments described in the letter. But, as the motion judge observed, "Demarest's letter was careful to avoid endorsing [Laura]'s specific allegations as true." In fact, the letter acknowledged that "[t]here are, of course, all the stories, which fly out of [Laura]'s mouth . . . ." In these circumstances, we discern no error in the motion judge's conclusion that Demarest's simple reporting of what Laura had told him, with the qualification that her complaints could be those of "just a whining and complaining 15-year-old," does not rise to the level of defamation.
Finally, we concur with the motion judge that the letter falls within the litigation privilege. Specifically, the motion judge ruled that "[a]s a letter requested by an attorney in connection with a custody proceeding, the letter unquestionably relates to a court proceeding." It is well established that "statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding." Sriberg v. Raymond, 370 Mass. 105, 108 (1976). See Mack v. Wells Fargo Bank, N.A., 88 Mass. App. Ct. 664, 667 (2015). Berube takes issue with that conclusion because (1) she claims that the attorney requesting the letter from Demarest had not been retained by Laura, and (2) she suggests that the letter could not relate to the court proceeding because Demarest began drafting the letter even before the request from counsel. Even assuming these facts to be true, they do not render the privilege inapplicable. Whether or not an allegedly defamatory statement is related to a court proceeding is to be broadly construed with all doubts resolved in favor of the defendant. Aborn v. Lipson, 357 Mass. 71, 73 (1970). Bearing this principle in mind, we discern no error in the motion judge's conclusion that the litigation privilege applied.
Judgment affirmed.
By the Court (Katzmann, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 4, 2016.