concurring.
In this case, because of the positive statement of the law governing this matter in the Fourth Circuit in Cole v. Cole, 633 F.2d 1083 (4th Cir.1980), as the doctrine there laid out was reaffirmed in briefer form in Wasserman v. Wasserman, 671 F.2d 832 (4th Cir.1982), I am constrained to concur in the result reached in the majority opinion, albeit with reluctance. This concurrence is predicated on the fact that the law is so clearly set out in Cole and Wasserman that it must be recognized that both the lawyers and the court below are entitled to rely on that law as it is set out in those cases. This court sits to review cases for asserted error, and, if error be found, to take corrective action. Considered in light of the reasoning of Cole and Wasserman, the court below did not err in its handling of this case7, so that no corrective action is appropriate. That being the case, joining the majority opinion affirming the court below would be the *341usual — and the more comfortable — course. Because of real concerns as to the implications of the doctrine of Cole, Wasserman, and the majority opinion in this case, concurrence in the result here is an appropriate course, but those concerns require an explication, as set out infra.
First, it cannot be disputed that in Cole, in Wasserman, and in the instant case, the controversy between the parties ineluctably had its origin in the domestic discord which developed between husband and wife in those three cases. This ultimate fact in these three controversies should not be ignored or overlooked. The majority opinion here implicitly acknowledges the Wasser-man opinion language to the effect that “the previous marital relationship of the parties and the presumably strong feelings associated with that relationship may as a factual matter have contributed to the underlying events and the initiation of this suit; ...” Wasserman at 834 (emphasis added). What has happened in all three eases is that the opinions in Cole and Was-serman and the majority opinion in the instant case have passed by this “factual matter” which contributed to the “initiation of this suit” and have picked up beyond the marital relationship, relegating that initiating fact pattern to outer darkness. Having thus put to one side the ultimate source of the controversy, the opinions go on to find bases for the exercise of federal jurisdiction which in the view of this concurrence strongly undercut the domestic relations exception so fully developed in the previous cases in the federal courts concerning the exception.
In Cole and in Wasserman, the controversies were directly between husband and wife, or former husband and former wife, while the instant ease asserts, in words and in effect, an alienation of the affections of a child for its father by the actions of its mother, the child then being in the custody of the mother, and a resulting intentional infliction of emotional distress on the father by the mother. Leaving aside the thorny question of whether alienation of the affections of a child was ever recognized at common law or by the statutory law of the Commonwealth of Virginia, the factual distinction between the two previous cases and the instant case is not significant in the analysis herein set out.
In the instant case, the record shows without contradiction that the parties were engaged in domestic relations litigation in the state courts in Virginia and in New York State when this action was brought in federal court. The New York litigation had resulted in husband’s obtaining a decree of divorce a vinculo matrimonii, the court there reserving questions of visitation and the like for further proceedings. In the Virginia court proceeding, efforts were being made by the court to determine the propriety of the father’s visitation, terms to be imposed, etc. While this litigation was ongoing in these two courts, the plaintiff came forward with a suit charging alienation and the tortious offense that the wife had engaged in the intentional infliction of emotional distress on the plaintiff husband. It is essentially on this latter basis of tort that the case was tried in the court below.
Certainly, it is hard to envision any situation between two parties more likely to create emotional distress than the deterioration of the domestic relationship between a husband and wife. It may be taken as given that actions by a spouse in derogation of the marital relationship will produce an emotional distress in the other spouse. Whether that action was taken with malice, wilfully to induce such emotional distress in the other, or was taken with justification, or at least without the necessary malicious intent, is a key issue in determining the existence of the tort of intentional infliction of emotional distress.
Any practitioner in the state courts who ever engaged in any domestic relations work knows with awesome clarity the emotional impetus which such controversies can generate in all the parties involved in such litigation. If one is to change the situation shown in the instant case, and is to assume that the parties are unrelated in any way, it is far less likely that a jury *342could conclude that emotional distress was created in the plaintiff by actions of the defendant taken arguably for the purpose of alienating the affections of a child toward this assumed stranger-plaintiff. Only because of the domestic relationship between the parties do we find that high level of emotional reaction which a breakup of the marital relationship, and the consequent acts of the parties, may engender in a plaintiff. In brief, if the case is to proceed on the basis of the intentional infliction of emotional distress, it is inescapable that the former marital relationship, now broken, and the actions taken following that breaking, will be taken into account.
It is true that on a technical basis the tort of intentional infliction of emotional distress can be successfully prosecuted without any reference to the marital relation, and it is on this pivot that Cole, Was-serman, and the instant majority opinion turn.
Yet, the record below clearly shows that the jury was advised of the former domestic relationship and of the actions of the mother toward the child and against the interests of the father. Only the most meticulous honing of the differentiation sought to be set out by these three cases can support the leap in logic which says that the domestic relationship between the parties is of no moment in the prosecution of the instant case.
If, for instance, it is assumed that a somewhat impecunious husband comes home to a well-to-do wife one evening, to be advised by her that she and the children are leaving him, one may easily imagine the emotional distress caused by any such event. Certainly, it is an intentional event, so far as the wife is concerned, and it is clearly to be discerned that there may or may not be legally cognizable reasons for her taking this drastic step. If, to complicate the matter further, we assume that the parties lived in reasonable tranquility in Bluefield, Virginia, until this bombshell announcement, husband has only to move across the invisible state line which separates Bluefield, Virginia, from Bluefield, West Virginia, in order to find the necessary diversity of citizenship. They may live two blocks apart after the separation, but the diversity is there. Husband-plaintiff then files suit in the United States District Court for the Western District of Virginia asserting the intentional infliction of emotional distress. Without question, wife will then undertake to indicate that there was no malign motive in her taking this action, that it was not taken with malice, wilfully, etc., and that she had ample justification for doing so. The matter then goes to trial, with husband asserting no fault in this situation, and with wife asserting that he was entirely at fault. This comes very close to defining a divorce action, though brought in the form of a suit seeking relief for an alleged tort. Even if we assume that what remains of the domestic relations exception after Cole, Wasserman, and the instant case do not permit the federal court to grant the divorce, the narrow circumscription of that doctrine by those opinions might just as well permit the district court to go to that extent, since essentially the evidence appropriate to determining the status of the parties as to divorce will then be before the court. After all, federal courts still retain chancery jurisdiction. U.S. Const., art. Ill, § 2, cl. 1. Since the Federal Court will be sitting with diversity jurisdiction, applying the law of the Commonwealth of Virginia in this assumed case, the only bar to the granting of a divorce is whatever remains of the domestic relations exception after Cole, Wasserman, and the instant case.
It scarcely seems appropriate to say in effect that such a pattern will occur so rarely that it is not worthy of concern. Whether it will be a rare occasion or one of increasing frequency — which this writer believes will be the case — the decision must turn on the law, and on the effects of that law. In the hypothetical situation posed here, it should also be pointed out that the district court will have before it most, if not all, the evidence appropriate to making findings as to custody, visitation, etc. as well as the appropriate evidence to deter*343mine whether a divorce should or should not be granted, as noted supra.
In fact, the emergence of the somewhat recently discovered tort of “intentional infliction of emotional distress” is the catalyst which brings these unfortunate developments into congruence one with the other. It is even more unfortunate that congruence will in effect place the United States District Court in the position of hearing all of the evidence relating to divorce, custody, alimony, and support money, in connection with a determination of the existence or non-existence of the tort alleged, and, assuming existence, the fixing of damages for the tort. Such a projection from Cole, Wasserman, and the instant case reduces markedly the domestic relations exception which has been so long and properly recognized in federal jurisdiction.
There are a number of reasons for that domestic relations exception, as previously recognized and clearly explicated in previous cases. First, there is the uncontested fact that the state through its courts has a stronger and more direct interest in the domestic relations of its citizens than does the federal court. Second, there is the fact that throughout the country, so far as investigation has disclosed, each state has set up specialized courts which deal with domestic relations matters, particularly in relation to children. They have vested in their courts jurisdiction over divorce matters, with the ancillary matters of alimony, etc., flowing from that grant of jurisdiction. These and the other factors mentioned in the cases conjoin to indicate that the domestic relations exception in federal jurisdiction is a valid and appropriate exercise of restraint on the part of the federal courts.
If the tort alleged is that of “intentional infliction of emotional distress” with jurisdiction essentially predicated on diversity, as in the instant case, then there will, almost inescapably, be placed before the trier of fact the question of the domestic relations of the parties, principally as a means of showing the degree and intensity of the emotional distress. It is thus difficult to see how one can reach the conclusion that domestic relations do not enter into a suit based on this tort, in any case where a spouse, or former spouse, sues the other for acts during or following the marriage, which acts are related to the marital relationship. Obviously, if the tort is asserted to have been committed by parties who are, or were, not in a domestic relationship, then nothing concerning a domestic relationship comes into the case. In the cases of Cole, Wasserman, and the instant case, however, the domestic relationships between the parties were a salient part of the evidence which went to the jury.
More generally speaking, if the logic of Cole and Wasserman is to be followed, it appears that two conclusions are inescapable. First, it must be concluded that the district court should simply ignore one of the operative facts in the pattern, namely, that the dispute arose out of, or was exacerbated by the break-up of, the marital relationship between the parties. Second, by following this course, the courts are undercutting the domestic relations exception. From a sociological point of view, this may be a desirable result. As to this point, the majority apparently feels that any result other than the one reached by it would leave the plaintiff without remedy for the tort.8 It should not be thus readily assumed that the state courts, particularly vested with domestic relations jurisdiction, are without power to redress any such tort.
If such a result of narrowing the domestic relations exception is to be brought about, it should be done by the action of Congress, rather than by this whittling away process. It is significant that Congress has accepted the domestic relations exception for over 100 years, without undertaking to reduce it or to change it in any way.
*344If this is to continue to be the law governing such matters, then we have, in simple terms, given to the plaintiff in circumstances such as these a ticket to ride serenely past the bar of the domestic relations exception by the simple expedient of alleging “intentional infliction of emotional distress”. There is no question that the proof of that tort does not require the proof of a domestic relations factor, but it is equally certain that in these cases the offense arises out of the domestic relations relationship and that the relationship is a salient factor — probably the most salient factor — in showing the degree of emotional distress suffered by the plaintiff. I simply cannot agree that the plaintiff, for future cases, under these circumstances should be permitted to avoid the exception.
As set out above, the law in this Circuit is so clearly stated that the writer is forced to concur in the result reached in the majority opinion.
I concur.
. It should be noted that the charge given the jury by the court below could well be a model charge for a jury in a state court case charging intentional infliction of emotional distress. See Joint Appendix, pp. 741, et seq.
. "The harm of deliberate frustration of a close and affectionate relationship between parent and child, which the evidence permitted the jury to find in the instant case, were there no remedy available to a parent who as a result was psychologically damaged strikes us as more potentially a danger to society." Majority Opinion, p. 340.