Texas Divorce Attorney Blog
Sometimes parties to a Texas divorce can get embroiled in litigation beyond standard divorce claims. A spouse may file a tort claim for intentional infliction of emotional distress (“IIED”) in a Texas divorce case. To succeed on an IIED claim in Texas, a plaintiff has to show intentional or reckless conduct that was extreme and outrageous and caused emotional distress that was severe. Hersh v. Tatum. The Supreme Court of Texas has stated that IIED is intended to allow recovery in unusual circumstances where the victim does not have another remedy. Moser v. Roberts. In a recent case, a wife pursued an intentional infliction of emotional distress (“IIED”) claim against the husband, as well as a separate lawsuit against his alleged affair partner, who had been an employee of their business.
The parties owned a plastic recycling company. The wife petitioned for divorce based on adultery in 2019 and made a claim for IIED against the husband.
IIED Claim
The jury awarded the wife $1.5 million for past and future physical pain and mental anguish pursuant to her IIED claim. The husband ultimately appealed.
The wife testified the husband grew “despondent,” began drinking more, and did not want to go to work after his father’s death. She hired a CPA for the business.
In late 2015, the husband ultimately admitted he was having affairs with multiple people after the wife went through his phone. The wife testified she stopped eating and went to California. She returned home, but cried each night.
The wife testified the husband “cussed her out” on a trip to France for not following his instructions to wait for him in the hotel lobby. She said he forced her to go to a parade and threatened divorce if she did not. She said she shook in fear.
The wife developed concerns regarding the CPA’s performance in 2017, but the husband dismissed those concerns. She testified employees told her there was something between the husband and the CPA, but she trusted them and considered the CPA a friend.
After the wife declined the CPA’s request to take her and her children to Europe due to the business’s lack of funds, the husband took the CPA to Europe for six weeks. The wife said she found the CPA’s lingerie in the husband’s luggage when he returned.
The parties went to Germany to “save the marriage” in October 2018. The wife was pickpocketed and got separated from the husband when she tried to find a police officer. She testified she did not have identification, money, or transportation and had to walk more than a mile to the hotel. She said when she arrived, the husband was inebriated and on the phone with the CPA. The wife said she was “beyond shocked and beyond angry that [the husband] was on the phone with [the CPA].” The wife went home.
The wife testified she signed a bank note for $6.5 million in 2018 to purchase equipment for the business and buy the building it was renting. She said she believed the projections the CPA made and thought these investments “would drastically increase [the business’s] profitability. . .” The husband told her the business was having “significant cash flow problems” that the note “would help alleviate.” He also told her she needed to sign the note because the business was a joint asset and she was jointly liable.
According to the opinion, the husband and CPA stayed overnight together after the business’s holiday party in 2018. The wife petitioned for divorce the following January. She said she was “locked out” of the business and “fired” and “taken off payroll” after she filed.
The wife argued her testimony was evidence of the husband’s extreme and outrageous conduct, particularly his conduct in firing her and cutting her off financially, trying to award 20% of the business to the CPA, causing the wife to spend a “large amount of attorney’s fees . . . to prove” the business was community property, and tricking her into signing the bank note.
The appeals court rejected her argument, however, determining there were other legal remedies available to the wife. The appeals court noted she could sue the husband for breach of contract and address the division of the business through the property division in the divorce. Additionally, she could pursue claims of constructive fraud or waste on the community if she had evidence he accrued attorney’s fees to reduce the community funds.
The appeals court concluded the conduct identified by the wife was not recoverable pursuant to an IIED claim because the wife had other remedies.
The wife argued the husband’s conduct was so outrageous and extreme that it exceeded the bounds of decency. She testified about his “regular use of vulgarities,” “demeaning communications, and “hurtful and negative statements to others about her.” She argued that his travel with the CPA, affairs, and leaving her without money or a phone in Germany to talk to the CPA on the phone were also evidence of extreme and outrageous conduct. The husband argued that nearly every divorce filed on adultery grounds could potentially include an IIED claim if the court concluded an affair constituted extreme and outrageous conduct for purposes of an IIED claim.
Conduct is extreme and outrageous if it is so outrageous and extreme “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Insensitivity, rudeness, and mere insults are generally not sufficient to rise to the level of extreme and outrageous conduct. Kroger Tex. Ltd. P’ship v. Suberu. A regular pattern of purposeful humiliation, intimidation, and repeatedly putting a person in fear for their physical well-being may be extreme and outrageous, however. Gonzales v. Gonzales. Successful IIED claims are rare and Texas courts have stated that IIED recovery generally arises in “circumstances bordering on serious criminal acts.” Creditwatch, Inc. v. Jackson.
The appeals court determined that none of the conduct alleged by the wife bordered on “serious criminal acts” and therefore concluded it did not constitute extreme or outrageous conduct. The cases discussed by the appeals court in which extreme and outrageous conduct was found all involved physical abuse and threats of violence.
The appeals court found the evidence was legally insufficient to support the jury’s finding the husband’s conduct was extreme and outrageous. The appeals court therefore did not reach the husband’s other arguments that the wife had not suffered severe emotional distress or that there was insufficient evidence of physical pain and mental anguish.
Characterization of Pending Lawsuit
The wife appealed the trial court’s characterization of her pending lawsuit against the CPA as community property and awarding it to the husband, arguing it was her separate property. She filed the suit in 2020 and included claims for gross negligence, IIED, breach of fiduciary duty, Deceptive Trade Practices Act violations, civil conspiracy, and interference with business relations. She alleged the CPA had a conflict of interest by being involved with the husband, wasted community funds, conspired to get the parties’ property, and plotted with the husband to maximize his financial advantages by violating her fiduciary duty.
The husband argued the wife failed to present evidence proving the lawsuit was her separate property and failed to overcome the community property presumption.
Potential recovery for personal injuries to the body is not subject to the community property presumption and is expressly identified as separate property in Tex. Fam. Code § 3.001. The appeals court noted that the wife’s IIED and breach of fiduciary duty claims against the CPA were personal to her.
The appeals court remanded the entire community estate to be divided in a just and right manner based on a correct characterization of the property.
Appeals Court Decision
The appeals court also reversed the child support order and remanded for recalculation because the trial court had considered factors beyond the proven needs of the children in awarding an amount in excess of the presumptive guideline amount. The appeals court overruled the wife’s challenge of the trial court striking her expert witness as a discovery sanction.
Consult with a Knowledgeable Divorce Lawyer
Although infidelity played a significant role in this divorce case, the business was also a major issue. If you have a business and are facing the end of your marriage, an experienced Dallas business divorce attorney can advise you on your rights and obligations with regard to the business. Schedule a consultation with McClure Law Group at 214.692.8200.