Opinion
No. 58675.
April 30, 1991. Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1991. Application to Transfer Denied July 23, 1991.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, MARGARET M. NOLAN, J.
R.J., pro se.
Susman, Schermer, Rimmel Shifrin, Mark H. Kruger and Randall B. Kahn, St. Louis, for respondent.
Father, R.J., appeals from an order which sustained mother's, S.L.J.'s, motion to strike and motion for summary judgment. R.J. instituted this action by filing a four count complaint against S.L.J. for prima facie tort, negligence, intentional infliction of emotional distress and alienation of affection. As the basis for each count, R.J. alleges S.L.J.'s actions caused injury to R.J. and damaged R.J.'s relationship with the parties' two minor children. R.J. alleges the trial court erred in striking his causes of action because the former adjudication of the equitable action of dissolution of marriage does not give rise to a claim of res judicata in an action at law on a different claim and therefore, genuine issues of material fact exist. We affirm.
The answer to this appeal is articulated in Meikle v. Van Biber, 745 S.W.2d 714 (Mo.App. 1987). Therein, the Western District of this court held, in order to be actionable, the tort of alienation of affection of a minor or adult child "must be predicated on proof of acts other than mere persuasion of a child to transfer its affection from its parent." Id. at 716. The court also held an action may not be maintained in prima facie tort where the petition alleges defendant's conduct with respect to the child was wrongful. Id. at 717. Further, the action for intentional infliction of emotional distress cannot be maintained where the underlying claim for alienation of affection is not actionable and the emotional distress is the alleged consequence of the same acts which caused the children to separate from the parent. Id. We find the court was correct as a matter of law in dismissing claims of alienation of affection, prima facie tort, and intentional infliction of emotional distress.
R.J.'s action for negligence was properly dismissed because it wrongly assumes a legal duty not to alienate the children's affection. Mother was not so obligated. Of course, there is a moral duty and the welfare of the children may not be ignored. Nor do we excuse unjustified acts to cause a loss of affection between parent and child. However, the refusal to allow the claim of a parent against a third person for the alienation of affections of a child "rests on concern that such a recovery would render the child a hostage in family disputes." Hester v. Barnett, 723 S.W.2d 544, 555 (Mo.App. 1987).
"We review summary judgment in a manner equivalent to review of a court tried proceeding and if, as a matter of law, judgment is sustainable on any theory, it must be sustained." Sales Service, Inc., v. Daewoo Int'l Corp., 770 S.W.2d 453, 458 (Mo.App. 1989). Accordingly, we hold S.L.J. was entitled to summary judgment as a matter of law and affirm the judgment of the trial court.
In view of our disposition of this appeal, all motions filed in this court by both parties are denied as moot.
We affirm.
PUDLOWSKI, P.J., and GRIMM, J., concur.