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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Caudle v. Mendel (12/30/99) sp-5228

Caudle v. Mendel (12/30/99) sp-5228

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


LARRY L. CAUDLE,              )
                              )    Supreme Court No. S-8265
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-2975 CI
                              )
ALLISON MENDEL, MENDEL        )    O P I N I O N
& ASSOCIATES, and MENDEL      )
& HUNTINGTON,                 )
                              )
             Appellees.       )    [No. 5228 - December 30, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.


          Appearances: Larry L. Caudle, pro se,
Anchorage.  Allison E. Mendel, Mendel & Associates, Anchorage, for
Appellees.


          Before:   Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          MATTHEWS, Chief Justice.      


I.   INTRODUCTION
          Larry Caudle filed a complaint against Allison Mendel,
Mendel & Associates, and Mendel & Huntington (Mendel), alleging
malicious prosecution, abuse of process, intentional infliction of
emotional distress (IIED), and negligent infliction of emotional
distress (NIED) for Mendel's actions in representing Caudle's wife,
Debra Caudle, in a domestic violence (DV) petition for a protective
order and in a subsequent divorce action.  The superior court
granted Mendel's motion to dismiss for failure to state a claim
upon which relief can be granted and awarded Mendel actual
attorney's fees. Because we hold that Caudle's claims were
premature, we affirm the superior court's dismissal of all claims. 
We reverse and remand the award of actual attorney's fees for
further findings.  
II.  FACTS AND PROCEEDINGS
          On April 18, 1997, Caudle filed a complaint against
Mendel for abuse of process, malicious prosecution, IIED, and NIED.
Caudle alleged the following general facts in support of his
complaint.  First, Mendel had represented Caudle's wife, Debra, in
a DV petition filed on February 3, 1997. Second, the petition was
dismissed for "insufficient evidence"on February 4, 1997.  Third,
Mendel was representing Debra in a divorce action against Caudle
that was filed on February 13, 1997. Fourth, on February 14, 1997, 
Mendel filed an expedited motion for interim custody, interim
support, and eviction of Caudle from the family home.  In the
expedited motion, Mendel alleged domestic violence by Caudle
against his wife.
          In Count I, Caudle claimed that Mendel's actions in the
divorce proceedings were an abuse of process and/or malicious
prosecution because she pursued a second claim of domestic violence
in the divorce case based on the same allegations of domestic
violence that were previously dismissed for insufficient evidence
in the DV petition.  In Count II, he claimed that Mendel's actions
in filing the DV petition were an intentional and/or negligent
infliction of emotional distress, because Mendel knew or should
have known that the DV charges were false and that the DV petition
was frivolous.  Caudle also claimed that Mendel filed the DV
petition for the improper purposes of evicting him from the marital
home, obtaining attorney's fees from Debra's father, William
Hinnershitz, and gaining an advantage in the divorce case by
obtaining an ex parte protective order.
          Mendel did not answer the complaint.  Instead, she filed
a Civil Rule 12(b)(6) motion to dismiss the complaint for failure
to state a claim upon which relief can be granted.  The superior
court granted the motion to dismiss.  It held that Caudle could not
prove any of his claims because Mendel's actions in using the same
domestic violence allegations in the divorce proceeding that had
previously been deemed insufficient to support the DV petition were
reasonable since the burden of proof in the latter proceeding was
lower.
          Mendel then moved for actual attorney's fees, arguing
that Caudle's filing the complaint was vexatious, in bad faith, and
unreasonable, since the divorce action was still pending and since
the burdens of proof for a DV petition and an interim divorce
proceeding were different.
          The superior court awarded Mendel actual attorney's fees
in the amount of $2,563.  It stated that full fees were justified
by Caudle's "unreasonable, bad faith and vexatious conduct in
bringing and pursuing this case, in that it was legally deficient
and had no chance of success."
          Caudle appeals the dismissal of his complaint and the
award of actual attorney's fees.
III. STANDARD OF REVIEW
          We review de novo an order dismissing a complaint for
failure to state a claim upon which relief can be granted. [Fn. 1] 
To survive a Rule 12(b)(6) motion:
          it is enough that the complaint set forth
allegations of fact consistent with and appropriate to some
enforceable cause of action.  The trial court must only consider
the material contained in the pleadings in a motion to dismiss for
failure to state a claim.  If, within the framework of the com-

plaint, evidence may be introduced which will sustain a grant of
relief to the plaintiff, the complaint is sufficient.  The court
must presume all factual allegations of the complaint to be true
and [make] all reasonable inferences . . . in favor of the
non-moving party.  Motions to dismiss are viewed with disfavor and
should rarely be granted.[ [Fn. 2]]
          We review an award of attorney's fees under Alaska Civil
Rule 82 for abuse of discretion. [Fn. 3]  Under this standard we
will find that a trial court abused its discretion only if the
award is "arbitrary, capricious, manifestly unreasonable, or stems
from improper motive."[Fn. 4]
IV.  DISCUSSION
     A.   Tort Claims Based on the Misuse of Legal Proceedings
Arising in the Context of Divorce or Custody Litigation Should Not
Be Filed until after Such Litigation Has Terminated.

          We have concluded that all of Caudle's claims were
properly dismissed because they were based on claims of misuse of
legal proceedings related to the ongoing divorce action between him
and Debra.  As such, they may not be brought until after that
action has been concluded.  We reach this conclusion for prudential
reasons in order to discourage claims that would not be brought if
the plaintiff were not opposing the defendant in domestic relations
litigation.
          The requirement that underlying proceedings be terminated
is a standard one for the tort of malicious prosecution and the
related tort of wrongful civil proceedings. [Fn. 5]  This
requirement exists, in part, to prevent needless litigation: 
          The requirement of termination is probably a
matter of ripeness, a belief that the malicious prosecution action
should not be tried at a time when it might tend to chill testimony
in the criminal action, when the issues may still be narrowed by
the criminal process, and when the civil dispute might still be
resolved by compromise or other nonjudicial measures if the
criminal trial can but proceed to an end.[ [Fn. 6]]

The same rationale applies with equal force to other tort claims
based on allegations of misuse of legal proceedings, such as abuse
of process or, as here, claims that proceedings have inflicted
emotional distress on the plaintiff. 
          Malicious prosecution cases arising out of domestic
relations litigation have encountered a cold reception in some
courts.  In California they are not allowed at all. [Fn. 7]  In
Indiana, an appellate court held that certain family law matters
such as motions to modify custody cannot give rise to a malicious
prosecution claim. [Fn. 8] 
          A number of reasons explain the disfavored status of
malicious prosecution cases arising in a domestic relations
context.  Divorce and custody cases are often characterized by
bitterness and emotional distress. [Fn. 9]  If parties are
permitted to widen the field of battle to the tort arena, many will
do so.  Such cases will delay the disposition of the domestic
relations case from which they spring.  They will worsen the
antipathy between the parties.  And they will burden the courts
with a category of cases which, in large part, lack substantial
merit.  Further, in most instances, sanctions and attorney's fees
assessed in the suit in which the legal proceedings are misused are
a sufficient remedy. [Fn. 10]
          In McGee v. McGee, [Fn. 11] we recognized reasons why
divorce and tort actions should be litigated separately:
          Divorce actions will become unduly complicated
if tort claims must be litigated in the same action. . . .
[R]equiring joinder of tort claims in a divorce action could unduly
lengthen the period of time before a spouse could obtain a divorce
and result in such adverse consequences as delayed child custody
and support determinations.[ [Fn. 12]]

These reasons also support non-simultaneous litigation of domestic
relations cases and tort claims based on claims that legal
proceedings have been misused.  We do not hold that malicious
prosecution or other claims based on the misuse of legal procedures
arising out of a domestic relations case can never be brought.  But
we think that such cases should not be maintainable until after the
underlying domestic relations litigation is concluded.  This rule
will avoid the added bitterness and complexity that simultaneous
tort litigation would bring to a domestic dispute.  It will also
impose a waiting period in which antipathies may cool and sound
judgment may assert itself.  Based on this rule, we affirm the
dismissal of Caudle's claims.  The dismissal on this ground must,
of course, be without prejudice.
     B.   Caudle's Complaint is Deficient.
          Recognizing the possibility that Caudle may refile his
complaint once the divorce litigation is concluded, we take this
opportunity to comment on a number of obvious deficiencies in his
complaint.
          Taken on its face, Caudle's claim for malicious
prosecution makes little sense.  His complaint alleges malicious
prosecution claims based on a divorce proceeding that has not yet
terminated.  Favorable termination of the proceeding alleged to be
malicious is a required element for any malicious prosecution
claim. [Fn. 13]  
          Caudle's complaint fails to allege a cognizable abuse of
process claim.  The tort of abuse of process consists of two
elements:  an ulterior purpose and a "willful act in the use of the
process not proper in the regular conduct of the proceeding."[Fn.
14]  The second element requires "some overt act done in addition
to the initiating of the suit."[Fn. 15]  Caudle's complaint
alleges that Mendel filed the divorce interim motion for the
purposes of evicting Caudle from the family home and collecting
attorney's fees from Debra's father.  We do not believe that either
of these aims is illegitimate in the sense required by the abuse of
process tort.  Eviction of an abusive spouse is an acceptable
objective of an interim motion in a divorce proceeding.  And
obtaining payment, with the consent of the client, from the
client's parent for services rendered in or related to the action
in question is not an invalid use of the process. [Fn. 16]  
          Caudle's claim for NIED is also flawed.  In order to
maintain a NIED claim there must be a breach of a duty arising out
of a pre-existing contractual or fiduciary relationship. [Fn. 17] 
Caudle did not allege such a relationship with Mendel.  
     C.   The Award of Full Attorney's Fees Requires Additional
Findings.

          The superior court awarded Mendel one hundred percent of
her actual attorney's fees, finding that Caudle engaged in
"unreasonable, bad faith and vexatious conduct"in bringing a case
that was "legally deficient and had no chance of success." The
superior court based its finding of legal deficiency on the
mistaken assumption that the burden of proof for protective orders
was higher than the burden of proof for divorce proceedings.
However, by statute, DV protective orders are civil restraining
orders that require only a preponderance of evidence before they
can be issued. [Fn. 18]
          Because we cannot know if the superior court's finding of
bad faith and vexatiousness would be the same absent its
understanding of the differing burdens of proof, we vacate the
award of attorney's fees and remand the issue back to the superior
court for reconsideration of the attorney's fees.
V.   CONCLUSION
          We AFFIRM the superior court's dismissal of Caudle's
complaint.  We REMAND the award of attorney's fees for further
findings.


                            FOOTNOTES


Footnote 1:

     See Kollodge v. State, 757 P.2d 1024, 1026 n.4 (Alaska 1988).


Footnote 2:

     Id. at 1025-26 (internal quotations, citations and footnotes
omitted).


Footnote 3:

     See Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991).


Footnote 4:

     Jones v. Jones, 925 P.2d 1339, 1340 (Alaska 1996) (citations
omitted). 


Footnote 5:

     See W. Page Keeton et al., Prosser and Keeton on the Law of
Torts sec.sec. 119-20, at 871, 892 (5th ed. 1984).  


Footnote 6:

     See id. at 874; see also Adams v. Superior Court, 3 Cal. Rptr.
2d 49, 52 (Cal. App. 1992) (noting that "[t]he reason the courts
have held that a malicious prosecution action can not be grounded
upon actions taken within pending litigation is that permitting
such a cause of action would disrupt the ongoing lawsuit by
injecting tort claims against the parties' lawyers and because the
appropriate remedy for actions taken within a lawsuit lies in the
invocation of the court's broad powers to control judicial
proceedings."). 


Footnote 7:

     See, e.g., Begier v. Strom, 54 Cal. Rptr. 2d 158, 164-65 (Cal.
App. 1996) (holding that ex-husband could not sue ex-wife for
malicious prosecution for allegations of child sexual molestation
in the divorce dissolution because malicious prosecution causes of
action cannot be based on family law matters); Bidna v. Rosen, 23
Cal. Rptr. 2d 251, 257 (Cal. App. 1993) (imposing a bright-line
rule that malicious prosecution claims do not lie in family law
matters); Green v. Uccelli, 255 Cal. Rptr. 315, 319 (Cal. App.
1989) (holding that the proper relief for wrongful order to show
cause motion in a divorce case was sanctions against the attorney,
not a malicious prosecution claim). 


Footnote 8:

     See Chapman v. Grimm & Grimm, P.C., 638 N.E.2d 462, 466 (Ind.
App. 1994) (holding that motions to modify custody cannot be
considered the "initiation of a proceeding"sufficient to establish
a malicious prosecution claim).  


Footnote 9:

     See, e.g., Bidna, 25 Cal. Rptr. 2d at 256 (characterizing
family law cases as having a unique propensity for bitterness).


Footnote 10:

     See, e.g., Chapman, 638 N.E.2d at 465 (noting that attorney's
fee awards for frivolous or vexatious motions to modify custody are
sufficient to cover the subsequent damages such that a malicious
prosecution tort is not needed); Bidna, 23 Cal. Rptr. 2d at 256
(stating that family law courts have "the unique ability to swiftly
discourage litigious nonsense at its source by means of attorney
fee awards").


Footnote 11:

     974 P.2d 983 (Alaska 1999).


Footnote 12:

     Id. at 993 (quoting Nelson v. Jones, 787 P.2d 1031, 1034 
(Alaska 1990).


Footnote 13:

     See Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).


Footnote 14:

     Id. (quoting Jenkins v. Daniels, 751 P.2d 19, 22 (Alaska
1988)).


Footnote 15:

     Id.  


Footnote 16:

     See, e.g., Docter v. Riedel, 71 N.W. 119, 120 (Wis. 1897)
(holding that the test is "whether the process has been used to
accomplish some unlawful end, or to compel the defendant to do some
collateral thing which he could not be legally compelled to do")
(emphasis added). 


Footnote 17:

     See Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995)
(holding that a plaintiff's right to recover emotional damages
caused by mere negligence is limited to those cases where the
defendant owes the plaintiff a preexisting duty).


Footnote 18:

     See AS 18.66.100(b) ("If the court finds by a preponderance of
evidence that the respondent has committed a crime involving
domestic violence against the petitioner, regardless of whether the
respondent appears at the hearing, the court may order . . . relief
. . . .").