(specially concurring).
I concur in the result of the foregoing opinion confirming that under New Mexico precedent an interspousal claim of outrage or intentional infliction of emotional distress is actionable, that the evidence presented by wife in support of her tort claim did not meet the threshold requirement for such claim, and that the award of attorney’s fees should be remanded for re-determination. I write separately because I believe a different analysis is required to evaluate wife’s claim of intentional infliction of emotional distress in a marital setting.
This case raises a troublesome issue of first impression. Husband argues on appeal that public policy considerations should preclude a spouse from initiating a cause of action for intentional infliction of emotional distress predicated upon conduct arising during the marriage of the parties and from raising the tort claim in the divorce proceeding.
Following husband’s initiation of divorce proceedings, wife counterclaimed for divorce on the ground of cruel and inhuman treatment and joined in her counterclaim a claim seeking recovery of damages against husband for intentional infliction of emotional distress based upon conduct alleged to have occurred during the marriage of the parties. Following trial, the trial court granted the divorce, finding that the parties were incompatible, awarded wife alimony in the amount of $1,050.00 per month until further order of the court, and also awarded wife monetary damages resulting from husband’s intentional infliction of emotional distress.
The damage award to wife on her tort claim provided that she should
recover $5,000.00 in medical expenses, and the residence of the parties [having a market value of $136,000] free and clear from any interest of [husband’s one-half community property interest] and any [existing] mortgage encumbrances, for lost wages for the past, present, and future and for past, present, and future physical and mental pain and suffering.
Decisions of both our supreme court and this court have recognized the actionability of the tort of intentional infliction of emotional distress. Sanders v. Lutz, 109 N.M. 193, 784 P.2d 12 (1989); Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983); Trujillo v. Puro, 101 N.M. 408, 683 P.2d 963 (Ct.App.1984); Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (Ct.App.1981); Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68 (Ct.App.1972). See also Restatement (Second) of Torts § 46 (1965). No New Mexico appellate decision, however, has directly considered the issue of whether a spouse can join a tort claim for intentional infliction of emotional distress with an action for dissolution of marriage. Other states which have considered this issue have reached diverse results, as observed in the opinion of Judge Hartz.
The Utah Supreme Court, in Walther v. Walther, 709 P.2d 387 (Utah 1985), ruled that tort actions between spouses should not be tried in a divorce proceeding. In Windauer v. O’Conner, 107 Ariz. 267, 485 P.2d 1157 (1971) (in banc), the Arizona Supreme Court recognized the right of a spouse to sue the other spouse in tort for an intentional wrong inflicted on the other but restricted the bringing of such action until after conclusion of the divorce action. Similarly, in Simmons v. Simmons, 773 P.2d 602 (Colo.App.1988), the Colorado Court of Appeals observed that considerations of fault or misconduct are inappropriate in proceedings for dissolution of marriage, noting that divorce actions are primarily equitable in nature. The Simmons court held:
[W]e adopt the reasoning of the Utah and Arizona courts, and hold that the efficient administration of dissolution cases requires their insulation from the peculiarities of matters at law. The joinder of marriage dissolution actions with claims sounding in tort or, for instance, contract would require our trial courts to address many extraneous issues, including trial by jury, and the difference between the “amicable settlement of disputes that have arisen between parties to a marriage,” and the adversarial nature of other types of civil cases. Moreover, such would create tension between the acceptance of contingent fees in tort claims and our strong and longstanding public policy against contingent fees in domestic cases. We conclude that sound policy considerations preclude either permissive or compulsory joinder of inter-spousal tort claims, or non-related contract claims, with dissolution of marriage proceedings.
Id. at 604-605 (citations omitted) (quoting 6B Colo.Rev.Stat. § 14-10-102(2)(a) (Repl. Vol.1987)).
Under our Rules of Civil Procedure, SCRA 1986, 1-013(A) and (B), and provisions for compulsory and permissive counterclaims, a spouse is not precluded from joining a tort claim for intentional infliction of emotional distress with an action for dissolution of marriage. See also SCRA 1986, 1-018(A); Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975) (there is no immunity from tort liability between spouses by reason of the marriage relationship); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App.1973) (recognizing right of spouse to recover for intentional tort inflicted by other spouse).
The facts in this case, however, illustrate the problems confronting the trial court when a tort claim for intentional infliction of emotional distress is joined and tried together with an action for dissolution of marriage. The problems are compounded where a jury trial is demanded in the trial of the tort claim and where the action for dissolution of marriage also involves a claim of alimony. Here, the trial court granted an award of alimony to the wife, based upon a finding that she was in need of $1,050.00 per month to meet her economic needs. The alimony award appears to duplicate in part the compensatory damage award granted to wife on her claim of intentional infliction of emotional distress. The damages arising from wife’s tort claim were awarded by the court based upon her “loss of possibility of gainful employment past, present, and future, and for her medical and psychological expenses past, present, and future.” In addition to the general damage award rendered to wife incident to her tort claim, the trial court also awarded her special future medical damages in the sum of $5,000.00, and, among other things, damages to wife for her loss of earnings during the marriage. The earnings of a spouse during marriage, however, are presumptively community property. See Stroshine v. Stroshine, 98 N.M. 742, 652 P.2d 1193 (1982). Thus, this portion of the damage award to wife conflicts with the marital property award.
In order for a claimant to establish a prima facie claim of intentional infliction of emotional distress, the elements which must be proven are (1) the conduct in question was extreme and outrageous; (2) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (3) the plaintiff’s mental distress was extreme and severe; and (4) there is a causal connection between the defendant’s conduct and the claimant’s mental distress. See Nagy v. Nagy, 210 Cal.App.3d 1262, 258 CaLRptr. 787 (1989); Davis v. Gage, 106 Idaho 735, 682 P.2d 1282 (Ct.App.1984); Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175 (1981). See also Restatement, supra, § 46. Whether a defendant’s conduct may reasonably be regarded as to be so extreme and outrageous as to permit recovery must be determined on a case-by-case basis. See Cluff v. Farmers Ins. Exchange, 10 Ariz. App. 560, 460 P.2d 666 (1969).
Applying the above requirements to the facts of this case, the continued verbal outbursts and insults of the husband, directed to wife, although patently providing grounds for dissolution of the marriage, did not reach the threshold requirement imposed by the first element of the four-prong test delineated above. Moreover, wife failed to present evidence distinguishing the emotional distress resulting from husband’s conduct toward the wife and the accompanying emotional distress resulting from the breakup of the marriage of the parties, as required under the third and fourth elements outlined above. The record reflects that wife also testified that husband hit her on several occasions; no request was made, however, for an award of damages for assault and battery. A spouse may recover damages for an intentional or negligent injury inflicted by another spouse. Maestas v. Overton.
Where a party couples a cause of action for divorce with one for intentional infliction of emotional distress, the threshold requirements of proof in order to establish a prima facie showing of intentional infliction of emotional distress must establish that the acts complained of were so severe as to fall outside the ambit of lawful conduct and that they causally resulted in severe mental anguish. Because emotional distress, and at times severe emotional distress, is a concomitant factor accompanying the dissolution of many marriages, litigation of a tort claim for intentional infliction of emotional distress at the same time the court is hearing an action for dissolution of marriage improperly injects issues of fault into no-fault divorce proceedings and is destructive of efforts of the trial court to mediate custody and property disputes or to achieve an equitable resolution of the issues between the parties. Moreover, if the tort claim is pursued under a contingent fee agreement, the wife’s claim for attorney’s fees in the divorce proceeding may become, as in the present case, blurred. The better procedure for the trial judge to follow where a tort claim for outrage is joined with an action for dissolution of marriage is to bifurcate the tort claim from the trial of the divorce proceedings so that the tort claim may be tried separately. See SCRA 1986,1-042(B). See also Mendenhall v. Vandeventer, 61 N.M. 277, 299 P.2d 457 (1956) (to avoid potential prejudice resulting from trial of distinct factual issues, separate trial should be held); Simmons v. Simmons (sound policy considerations preclude either permissive or compulsory joinder of interspousal tort claims with dissolution of marriage proceedings).
The award of damages for intentional infliction of emotional distress failed to satisfy that four-pronged test required to establish wife’s tort claim. See Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986). The judgment awarding damages for wife’s tort claim should be vacated and set aside, and on remand the community property interest of the parties in the residence, and the indebtedness thereon, should be equitably divided and reapportioned between the parties. I concur with Judge Hartz that the cause should also be remanded for re-determination of the award of wife’s attorney’s fees.
CHAVEZ, Judge.I concur in Judge Donnelly’s special concurrence.