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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Coulson v. Steiner (3/3/2017) sp-7153

Coulson v. Steiner (3/3/2017) sp-7153

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                   

DAVID  F.  COULSON,                                               )  

                                                                  )     Supreme  Court  No.  S-16167  

                               Appellant,                         )  


                                                                  )     Superior Court No. 3AN-14-10963 CI  

          v.                                                      )  


                                                                  )     O P I N I O N  


AARON T. STEINER,                                                 )  


                                                                  )     No. 7153 - March 3, 2017  

                               Appellee.                          )  




                       ppeal  from  the  Superior  Court  of  the  State  of  Alaska,  Third  


                     Judicial District, Anchorage, Catherine M. Easter, Judge.  


                    Appearances:  John C. Pharr, Law Offices of John C. Pharr, P.C.,  


                    Anchorage, for Appellant.   Darryl L. Thompson, Law Office of  


                     Darryl L. Thompson, P.C., Anchorage, for Appellee.  


                     Before:       Stowers,  Chief Justice,  Winfree, Maassen,  Bolger, and  


                     Carney, Justices.  


                     BOLGER, Justice.  



                    Aaron  Steiner  began  a  romantic  relationship  with  Juanita  Omadlao  in  


May 2013, while Omadlao was still married to David Coulson.  Coulson learned about  


the affair and filed for divorce.   After the divorce proceedings ended, Coulson sued  


Steiner, claiming alienation of affections, fraud and civil conspiracy, and intentional and  


negligent infliction of emotional distress.   Specifically, Coulson alleged that Steiner  

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caused Coulson's divorce and that Steiner then conspired with Omadlao during the  


divorce proceedings to extract child support and spousal support from Coulson.  


                    The  superior  court  granted  Steiner  summary  judgment  on  all  three  of  


Coulson's  claims.             The  court  concluded  that  Alaska  does  not  recognize  a  tort  for  


alienation  of  affections  and  that  Coulson's  remaining  claims  were  derivative  of  


Coulson's alienation of affections claim and likewise barred by Alaska law.  


                    We agree that Steiner was entitled to summary judgment on the alienation  


of affections claim based on our prior case law.  But we also conclude that Steiner was  


not entitled to summary judgment on Coulson's other claims because those claims were  


based, at least in part, on Steiner's conduct during the divorce proceedings, not on his  


role in causing Coulson's divorce.  




          A.        Coulson's Divorce  


                    Coulson and Omadlao married in 2009.  In May 2013 Omadlao began a  


romantic relationship with Steiner, and in September 2013 Coulson filed for divorce.  


Omadlao, who was pregnant at the time, sought interim spousal support from Coulson.  


In her filings she represented that Coulson was the father, that she could not work due  


to medical conditions associated with her pregnancy, and that she would be homeless  


without spousal support.  


                    Omadlao gave birth in February 2014. Shortly thereafter the superior court  


partially granted Omadlao's support motion, awarding her $1,000 per month in interim  


spousal  support,  requiring  Coulson  to  pay  Omadlao's  pregnancy-related  medical  


expenses, and instructing Coulson to "investigate" purchasing medical insurance for  


Omadlao and the child.  


                    In March Steiner and  Omadlao  received the results of a paternity test  


indicating that Steiner was the father of Omadlao's child. At an April hearing Coulson's  

                                                               -2-                                                        7153

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attorney requested a paternity test order, and the judge acknowledged that there was a  


"serious  question  about  the  paternity  of  the  child,"  but  Omadlao  did  not  mention  


Steiner's test results.  Coulson took a paternity test later that month and discovered that  


he was not the father of Omadlao's child.  


                     Further  proceedings  between  Coulson  and  Omadlao  resulted  in  a  


modification of the interim spousal support order and eventually a settlement agreement  


and decree of divorce.  Steiner and Omadlao married in November.  


          B.         Proceedings In This Case  


                     Coulson filed suit against Steiner for damages resulting from Steiner's role  


in the divorce and divorce proceedings.  Coulson alleged that Steiner assisted Omadlao  


in portraying herself as having limited funds and being on the verge of homelessness  


when in fact she was comfortably living in Steiner's home.  He also alleged that Steiner  


and Omadlao conspired to conceal the fact that Steiner was the child's father in order to  


extract child support, medical expenses, and interim spousal support from Coulson.  


                     Based on these facts, Coulson alleged that  (1) Steiner committed the tort  


of alienation ofaffectionsby destroying thespousal lovebetween Coulson and Omadlao;  


(2) Steiner committed fraud and civil conspiracy by "knowingly accept[ing] the benefits  


of  [Omadlao's]  fraudulent  behavior"  and  by  conspiring  with  Omadlao  to  defraud  


Coulson; and (3) Steiner committed intentional and negligent infliction of emotional  


distress by having an affair with Omadlao and then conspiring with her to extract child  


and spousal support from Coulson.  



                     Steiner filed an answer denying these allegations.  Steinerthen moved for  



summary judgment, arguing that alienation of affections is not a cause of action in  


Alaska and that the other two claims were mere reframings of Coulson's alienation of  


affections claim.  


                                                                 -3-                                                          7153

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                      Coulson   responded   by   moving   for   a   continuance   under   Alaska   Civil  

Rule   56(f)   to   conduct   additional   discovery   before   responding   to   Steiner's   motion.   

Coulson alsomovedto                  compelSteiner toproduce his mandatory initial disclosures under                                

                                   1   Steiner opposed these motions and moved for a protective order  

Alaska Civil Rule 26.                                                                                                               

to stay discovery until his summary judgment motion was resolved.  


                      The superior court denied Coulson's motions and instructed Coulson to  


respond to Steiner's motion for summary judgment within 15 days.   After receiving  


Coulson's response, the superior court granted Steiner's motion for summary judgment.  


The superior court rejected Coulson's claim for alienation of affections because Alaska  


does not permit tort claims relating to economic loss caused by divorce and rejected  


Coulson's other two claims because it reasoned that Coulson could not "avoid Alaska's  


bar of tort claims relating to economic losses caused by divorce through artful pleading."  


                      Coulson appeals the superior court's discovery orders and its grant of  


Steiner's motion for summary judgment.  




                      "We review a grant of summary judgment de novo, 'affirming if the record  


presents no genuine issue of material fact and if the movant is entitled to judgment as a  


matter of law.' "2  



                      Coulson argues that thesuperior court erred in granting summary judgment  


for Steiner. For the reasons we explain below, Steiner was entitled to summary judgment  


           1          Alaska   Civil   Rule   26(a)(1)   requires   each  party  to   make   certain   initial  

disclosures without awaiting a discovery request.                   

           2         Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)  


(quoting Beegan v. State, Dep't of Transp. &Pub. Facilities, 195 P.3d 134, 138 (Alaska  



                                                                    -4-                                                             7153

----------------------- Page 5-----------------------

 on Coulson's claim for alienation of affections, but Steiner was not entitled to summary                                                                                                                            

judgment on Coulson's other claims.                                                

                   A.	               SteinerWas                          EntitledTo                        SummaryJudgment                                             OnCoulson'sAlienation                    

                                     Of Affections Claim                                         .  

                                     The   superior   court   granted   summary   judgment   in   favor   of   Steiner  on  

 Coulson's claimfor alienation of affections, finding that such claims are barred in Alaska                                                                                                                                 

 on "public policy grounds."                                                   We agree with the superior court.                                             

                                     The tort of alienation of affections provides a cause of action for a spouse                                                                                                         

 against a third party who interferes in the marital relationship with the intent to alienate                                                                                                                            

                                                                        3   The tort "originated with the common-law belief that wives  

 one spouse from the other.                                                                                                                                                                                                   

 were the chattel of their husbands" and was widely adopted by states in the nineteenth  



                                     But changes in society's conception of marriage, combined with attempts  


 to limit damages and protect privacy, have led to the gradual abolition of this cause of  


 action,  and  only  a  handful  of  states  still  recognize  it  today.5  

                                                                                                                                                                                       Neither  the  Alaska  


 legislature nor this court has explicitly abolished alienation of affections as a cause of  


 action in Alaska, but two of our prior holdings came very close. Today we take the final  


 step and hold that alienation of affections is not a valid cause of action in Alaska.  


                                     In Chizmar v. Mackie, a woman sued her doctor for, among other things,  


 economic loss and emotional distress resulting from her divorce after the doctor falsely  


                   3                 54 A          M. J   UR. 3             D  Proof of Facts                               135 (1999).     

                   4                 Id.  

                   5                 Id.  

                                                                                                                    -5-	                                                                                                        7153

----------------------- Page 6-----------------------


informed her husband that she had AIDS.                                               We affirmed the superior court's directed                           

verdict in favor of the doctor, holding that "economic losses suffered as a result of a                                                                                

                                                        7  In reaching that holding we noted issues with establishing  

divorce are not recoverable."                                                                                                                      

both foreseeability and causation, as well as public policy concerns:  


                          Divorce is never the direct result of actions by a third-party  


                          tortfeasor. It is the character of the spouses, and the character  


                          of the marriage itself, which determines whether a divorce  


                          will  occur.  .  .  .                 To  hold  a  third  party  responsible  for  


                          economic  losses  resulting  from  a  divorce  in  such  a  case  

                                                                                                       [  ]  



                          would extend potential liability too far. 

                          We reaffirmed the holding of Chizmar several years later in Clemensen v.  


                                                                      9   In that case a husband claimed that hospital staff  

Providence Alaska Medical Center.  


assured him that they could hold his wife for a mental evaluation for 72 hours and would  


not release her to anyone but him.10                                     But the day after her admission, the wife left the  


hospital with her adult daughter and filed for divorce a few months later.11   The husband  


then sued  the hospital, seeking  compensation  for  the economic loss and emotional  


distress caused by the hospital releasing his wife to her daughter rather than him.12   The  


husband attempted to distinguish  Chizmar on several grounds, but we rejected those  


distinctions and reaffirmed "our holding [in Chizmar] that economic losses resulting  


             6            896 P.2d 196, 199-200 (Alaska 1995).

             7            Id.  at 212.

             8            Id.  at 211.

             9            203 P.3d 1148 (Alaska 2009).  


             10           Id. at 1149.  


             11           Id.  at 1150.   

             12           Id .  

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----------------------- Page 7-----------------------


from divorce are not recoverable as a matter of law."                                                    We also concluded, under the                       

same rationale, that "damages caused by the filing of a divorce action . . . are not                                                                       



                         Coulson's claim for alienation of affections seeks damages for economic  


losses resulting from divorce.  We reaffirm both Chizmar and Clemensen today, and we  


specifically hold that the tort of alienation of affections is not recognized under Alaska  


law.  Steiner was therefore entitled to summary judgment on that claim.  


            B.	          Steiner Was Not Entitled To Summary Judgment On Coulson's Other  



                         Thesuperior court granted Steinersummaryjudgmenton Coulson's claims  

for fraud and civil conspiracy and for intentional and negligent infliction of emotional  


distress, concluding that Coulson could not "avoid Alaska's bar of tort claims relating  


to  economic  losses  caused  by  divorce  through  artful  pleading."                                                           Coulson  appeals,  


arguing that his other two claims have factual bases independent from those of his  


alienation of affections claim.  We agree with Coulson.  


                         Coulson's claims for fraud and civil conspiracy and for intentional and  


negligent infliction of emotional distress are based, at least in part, on Steiner's alleged  


role in misrepresenting the paternity of Omadlao's child and the nature of her finances  


and living conditions.  These claims are therefore not for economic loss resulting from  

divorce15                                                                                                                 16  


                  or for "damages caused by the filing of a divorce action";                                                                          

                                                                                                                              rather, these claims  

             13          Id.  at 1152.   

             14          Id. at 1153.  


             15          See Chizmar v. Mackie                      , 896 P.2d 196, 211-12 (Alaska 1995).                       



                         Clemensen, 203 P.3d at 1153 (emphasis added).  

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 are   for   damages   caused   by   fraudulent   misrepresentations   made   during   the   divorce  


                                     Thus, to the extent Coulson's remaining claims allege harm arising out of                                                                                                                         

 Steiner's role in causing the divorce, they are barred by our refusal to recognize claims                                                                                                                                

                                                                                                                     17  But, to the extent these claims allege harm  

 for economic losses resulting from divorce.                                                                                                                                                                                   

 instead arising out of Steiner's conduct during the divorce proceeding, they are not so  


 barred.  Steiner was therefore not entitled to summary judgment on these claims.18  


                   17                Because the facts of this case do not require it, we express no opinion on                                                                                                

 whether Alaska recognizes a tort for intentional or negligent infliction of emotional                                                                                                                          

 distress brought under the theory that the defendant had an affair with the plaintiff's                                                                                                                         

 spouse   and   that   the   affair   caused   the   plaintiff   emotional   harm   unrelated   to   any  

 breakdown of the marriage.                                                   See, e.g.               ,  Koestler v. Pollard                                 , 471 N.W.2d 7, 13, 16 (Wis.                                    

 1991) (Abrahamson, J.,dissenting) (arguing that "thelegislaturedid                                                                                                                   not intend to abolish              

 a   claim for                    the   separate   tort  of   intentional   infliction   of   emotional   distress   when   it  

 abolished [the tort of alienation of affections]" because the two torts "[do] not implicate                                                                                                                       

 the same public policies"; the former "seeks compensation for injury to [the plaintiff]"                                                                                                                        

 whereas the latter "seeks compensation for disruption of the marital relationship").                                                                                                                                               

                   18                Steiner  has  asked  us  to  affirm  the  superior  court's  grant  of  summary  


judgment on Coulson's fraud and civil conspiracy claims on the alternative ground that  


 the litigation privilege protects Omadlao from suit for fraud based on her statements  


 made during litigation, and that this privilege also extends to protect Steiner from suit  


 based on those same statements.  See, e.g., Gilbert v. Sperbeck, 126 P.3d 1057, 1059-60  


 (Alaska 2005); Lawson v. Helmer, 77 P.3d 724, 726-28 (Alaska 2003).  But we will  


 "affirm on independent grounds not relied on by the superior court only when those  


 grounds are established by the record as a matter of law."  Seybert v. Alsworth, 367 P.3d  


 32, 38 (Alaska 2016).  That is not the case here.  We note in particular that the litigation  


 privilege is an affirmative defense and that Steiner did not raise it below.  Cf. Nizinski v.  


 Currington, 517 P.2d 754, 755 n.6 (Alaska 1974).   If Steiner raises the privilege on  


 remand, Coulson may be able to amend his complaint to include factual assertions or  


 legal  arguments  that  defeat  Steiner's  claimed  defense  or,  at  the  very  least,  raise  a  


 disputed issue of material fact.  See Alaska R. Civ. P. 15(a).  We decline to hold as a  


 matter of law that Coulson would be unable to do so.  


                                                                                                                   -8-                                                                                                         7153

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                        C.                    We Do Not Reach Coulson's Remaining Arguments                                                                                                                                                .  

                                              Coulson also argues that the superior court abused its discretion when it                                                                                                                                                                           

 denied his motions to continue discovery.                                                                                                            But as we have just explained, summary                                                                          

judgment was wrongly granted on two of Coulson's claims.                                                                                                                                                      He is therefore entitled to                                                       

 pursue discovery of those                                                             claims on remand, notwithstanding thesuperiorcourt's orders.                                                                                                                                                      

 Coulson's other claim - for alienation of affections - is barred as a matter of law and                                                                                                                                                                                                   

 thus allowing discovery on that claim would serve no purpose.                                                                                                                                                                      Because resolving   

 Coulson's appeal of the superior court's discovery rulings would not affect how this case                                                                                                                                                                                               

 is litigated on remand, we decline to reach those issues here.                                                                                                                               

                                              We recognize, however, the importance of affording a litigant time to                                                                                                                                                                            

 conduct the discovery necessary to oppose a summary judgment motion, which "may                                                                                                                                                                                                    

 require that parties spend considerable time and effort discovering and developing facts                                                                                                                                                                                              

                                                                                                                 19  While we do not decide whether Coulson's motions  

 necessary for a full presentation."                                                                                                                                                                                                                                        

 to continue discovery were wrongly denied in this case, we reiterate that such motions  


 "should  be  granted  freely  [as]  a  safeguard  against  premature  grants  of  summary  



 V.                     CONCLUSION  

                                              WeAFFIRMthesuperior court's grant ofsummary judgment onCoulson's  


 alienation of affections claim, but we REVERSE the superior court's grant of summary  


judgment  on  Coulson's  claims  for  fraud  and  civil  conspiracy  and  intentional  and  


 negligent infliction ofemotional distress. WeREMANDfor proceedings consistent with  


 this opinion.  


                        19                    Mitchell v. Teck Cominco Alaska Inc.                                                                                            , 193 P.3d 751, 758 (Alaska 2008).                                                               



                                              Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005) (quoting Ball v.  


Birch, Horton, Bittner & Cherot, 58 P.3d 481, 489 (Alaska 2002)).  

                                                                                                                                               -9-                                                                                                                                    7153

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