The limits of tort liability among ex-spouses are being tested as we speak.
In late April, the Minnesota Court of Appeals issued an unpublished decision in Molitor v. Molitor, No 19HA-CV-15-3213, 2017 WL 1436083 (Minn. Ct. App. Apr. 24, 2017). Molitor involves a defamation claim brought by Father against Mother. While the District Court dismissed Father’s claims on summary judgment, the Court of Appeals reversed and remanded.
Father and Mother were married in 2008. Their daughter was born in 2012. The parties separated in November of 2013. About one week following separation, Father brought daughter in for a well-child checkup. The physician indicated that daughter was in good health.
The following day, Father turned daughter over to Mother as part of a routine parenting time exchange. According to Mother, daughter told her that her “butt hurt.” Additionally, daughter’s stools were abnormally dark.
Mother conducted an internet search concerning daughter’s symptomology and discovered that daughter’s condition could be related to sexual abuse. She phoned a sexual abuse hotline, reported the symptoms, and was advised to take daughter to the emergency room.
At the hospital, the physician noted Mother’s concerns of sexual abuse and learned that daughter stayed at Father’s home over the prior four nights. Mother further reported that daughter looked unkempt and inattentive when she was picked up, had black and tarry stools, was pulling at her backside, was reluctant to wear a diaper and generally seemed uncomfortable. Mother reported that during her marriage to Father he sexually abused her, and, on one occasion, hit daughter on the nose “like a dog.”
Daughter’s exam resulted in normal findings and no signs of sexual abuse. She was immediately discharged.
The following month, Father filed for divorce. Nine months after conclusion of the divorce, Father brought a civil defamation action against Mother. Father claimed that Mother made false statements that he had sexually abused daughter.
Mother filed for summary judgment, arguing that the record lacked any evidence to support the assertion that she had made false statements concerning sexual abuse of daughter. The District Court agreed, concluding that the information provided to the emergency room physician was “factually correct and truthful” and, therefore, not actionable. The lower court determined that the record referenced only Mother’s “direct observations about the child’s symptoms,” and that Father presented no evidence that Mother’s statements were false.
On appeal, Father argued that he presented genuine issues of material fact concerning whether Mother made false statements to the physician, and whether they carried a defamatory meaning. He further claimed that the statements made by Mother tended to harm his reputation in the community.
In response, the Court of Appeals examined two key issues: (1) whether the substance of Mother’s statements presented an issue of material fact as to defamatory meaning and truth or falsity; and (2) whether qualified privilege applied to the statements made by Mother.
Judge Lucinda Jesson began the analysis by reciting the standards relevant to an action for defamation. Citing Jadwin v. Minneapolis Star & Tribune, a 1986 Court of Appeals decision, she indicated that to be actionable, a defendant’s utterance must be “false statements of fact that are capable of conveying a defamatory meaning.” She further suggested that whether a statement is defamatory “depends on how ordinary people would interpret [it] in light of the circumstances.” Context is critical to meaning.
On balance, the Court of Appeals concluded that Mother made statements to an emergency room physician that were “capable of a defamatory meaning.” Jesson pointed out that collectively, and in context, Mother’s statements about daughter’s condition immediately after returning from Father’s home could “reasonably convey the implication that he may have abused the child during her stay with him.”
Because Mother told the doctor that Father sexually abused her, and that she was concerned about sexual abuse of daughter “after a stay with [Father],” the Court of Appeals determined that a jury question exits as to whether the statements conveyed a defamatory meaning.
Mother argued that her statements were merely a matter of “opinion” protected from defamation claims (generally only statements of fact that can be proven true or false are actionable as defamatory). However, the Court of Appeals opined that a statement that “implies the existence of a certain kind of reprehensible conduct” is actionable. Jesson opined that Mother’s statements could reasonably be interpreted to convey that Father committed sexual abuse.
As to the issue of falsity, the District Court accepted Mother’s statements, taken individually, as true. The District Court further indicated that the record was void of any evidence of untruthfulness. The Court of Appeals, however, pointed out that in his affidavit, Father alleged that: (1) Mother made false accusations to further her attempt to gain custody of daughter; (2) that Mother threatened to do “whatever it takes” to remove Father from daughter’s life; (3) he did not keep the child for longer than scheduled; and (4) the day before the emergency-room visit he had taken daughter to her 15 month well-child visit, which showed she was in good health.
In reviewing the evidence in the light most favorable to Father, the Court of Appeals concluded that he did provide record evidence calling into dispute Mother’s claims.
As to the privilege issue, Jesson noted that “a defamation action may be defeated on the ground that the defendant is entitled to a qualified privilege.” Because the District Court dismissed Father’s defamation claim, it failed to reach the issue of whether qualified privilege protected those statements.
As outlined in Stuempges v. Parke, Davis & Co., a 1980 Minnesota Supreme Court decision, to be protected the statement “must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.” Consequently, appellate courts found that qualified privilege applies to reports of abuse made to a psychologist or physician.
Father and Mother in Molitor disputed whether the statements were made upon a proper occasion, from a proper motive. The Court of Appeals remanded that issue to the district court — asking the lower court to keep in mind that statements published with “actual malice” will defeat the privilege.
The fallout from Molitor will be interesting to watch, as there is limited case law on defamation suits among former spouses.
In Yohannes v. Habtesilassie in 2008, the Court of Appeals accepted the notion that a general release within a judgment and decree was sufficient to bar further tort claims among the parties. Molitor doesn’t specify whether the parties were able to resolve matters on their own, or whether a trial was needed. Nor does Molitor provide guidance on whether any sort of release was included in the judgment and decree. Our best guess is no release was included, given the absence of the issue cropping up.
If Father is ultimately successful in pursuing his defamation action, we all better hang on to our hats and glasses. Will future divorce litigants be dissuaded from reporting concerns about child abuse? Most cases settle outside the courtroom. Will the absence of a specific finding of abuse open the gates for alleged actors to pursue a civil action against their ex? Will releases in dissolution matters become as complex as those drafted by the insurance defense bar?
Either way, what strikes us as odd is that the entire Molitor scenario played out because Mother self-diagnosed acts of sexual violence upon a young child based upon complaints of a sore bottom and black stool — and a web search.