David DiMichele v. Gary Perrella

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Superior Court of Connecticut.

David DiMichele v. Gary Perrella

CV106004536

Decided: February 23, 2011

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE-# 106

I. Nature and History of the Proceedings

A. The Plaintiff's Complaint

This case arises out of a unique and disturbing historical factual background and presents the issue of whether or not a current husband and joint custodian of two children is entitled to recover damages from one who fathered each of the children during the marriage and who, along with the mother, concealed the true paternity from the children and the husband for nearly a decade.

The plaintiff brings this action in four counts:  fraud, intentional and negligent infliction of emotional distress and unjust enrichment.   The plaintiff incorporates the first nineteen paragraphs of his complaint dated April 14, 2010, into each of the four counts.   The plaintiff alleges that on August 13, 1994, he was married to Josinette DiMichele.   Two children were born to the plaintiff's wife during the marriage, a daughter, now fourteen whose date of birth was November 2, 1996, and a son now twelve who was born October 4, 1998.   The plaintiff asserts that he was present during the birth of each of said children, is listed as the father on each of the birth certificates, supported, nurtured and cared for the children for nearly a decade with no reason to suspect that he was not the father.   From the date of the marriage to his wife until April 2007, he was happily married and was engaged in what appeared to be a normal marital relationship.   The plaintiff claims, that from the date of birth of each of the children, the defendant, who is the biological father of each child, and the plaintiff's wife knew that the children were not fathered by the plaintiff and conspired to conceal the true paternity of the children from the plaintiff until April 2007 when the truth became known.   The plaintiff further alleges that prior to April 2007, the plaintiff's wife, unbeknownst to him, would bring the children periodically to visit their biological father, whose true identity was concealed from the children.   As the children became older they started asking questions of their mother as to the reason for the visits with the defendant and as to the reasons why knowledge of said visits was kept from the plaintiff.   The plaintiff further alleges that as a result of those questions the mother decided to stop the visits, which prompted the defendant to file a motion for custody and visitation in the family division of this court.   See Perrella v. DiMichele (FA07-4012677).1  Once the plaintiff discovered notice of those proceedings, he confronted his spouse who then disclosed the true paternity of the two children.   The plaintiff asserts that despite knowing that he was the father of each of the children, the defendant played no part in their upbringing while the plaintiff raised and supported each child since birth.   The defendant paid no child support for his two children until the family court ordered him to do so in January 2008, at a time when his daughter was ten and his son was eight years of age.   The plaintiff claims that the defendant's actions in conspiring with the plaintiff's wife to conceal the true paternity of the two children and his refusal to support his children, while the plaintiff developed a parental bond with them, was contrary to the defendant's “legal, ethical and moral duty” to inform the two children that he was their biological father.

In the first count, the plaintiff asserts that the defendant's actions in concealing his paternity, knowing that the plaintiff believed that he was the biological father of the children and that the plaintiff was conducting his life with the children as their father, constituted a fraud upon the plaintiff that has caused the plaintiff to suffer severe mental and emotional distress for which the plaintiff seeks substantial money damages.

In the second count, based on intentional infliction of emotional distress, the plaintiff alleges that the extreme mental and emotional distress suffered by him as a consequence of the defendant's actions consisted of building a parent-child relationship with the two children since the birth of the first child, only to learn many years later that the relationship was based upon a fraud perpetrated by the defendant;  foregoing having his own biological children;  and losing an opportunity to have a genuine and truthful marriage to a faithful spouse.   The plaintiff claims that the defendant “knew or should have known” that his actions were likely to cause the plaintiff emotional distress which has and continues to manifest itself as “anxiety, sleeplessness, anger, depression, confusion, loss of appetite, loss of concentration, weight loss, digestive disorders and similar symptoms and effects thereof.”

In the third count, based on negligent infliction of emotional distress, the plaintiff alleges that the defendant failed to exercise reasonable care in order to prevent the alleged damages suffered by the plaintiff and that it was reasonably foreseeable by the defendant that the plaintiff would suffer emotional distress as a result of his alleged conduct.

The fourth count of the plaintiff's complaint is based on a claim of unjust enrichment.   The plaintiff alleges that for eleven years the defendant avoided his obligation to support his biological children, relying on the plaintiff to do so.   The plaintiff further alleges that in January 2008, the defendant was ordered to pay child support and is currently under such order although the plaintiff continues to provide a majority of the support of the two children.2  This, the plaintiff claims, constitutes unjust enrichment to the defendant, which he achieved through his fraudulent non-disclosure of paternity and avoidance of his financial obligations.   With respect to all counts the plaintiff seeks compensatory and punitive damages, including attorneys fees and costs.

On July 1, 2010, the defendant filed a motion to dismiss (# 101) which challenged the standing of the plaintiff to bring this action.   On August 16, 2010, the court (Sheedy, J.) denied the motion, finding that the plaintiff was classically aggrieved and therefore had standing to bring the suit.   On August 30, 2010, the defendant filed the present motion (# 106) and supporting memorandum which seeks to strike the plaintiff's entire complaint, claiming, inter alia, that with regard to each of the four counts the plaintiff has failed to allege a cause of action that should be recognized by this court.   On October 13, 2010, the plaintiff filed his objection to the motion, accompanied by his memorandum.   The court heard oral arguments on the motion and objection at the short calendar on October 18, 2010.

Other than some specific arguments applicable to a particular count, the defendant offers three reasons that in his view justify the court's granting of his motion.   The defendant argues that he owed no legal duty to the plaintiff;  that the action is barred as it is offensive to public policy;  and the action is in the nature of a criminal conversation which is now statutorily barred in Connecticut.   Additionally, the defendant asserts that any claim for attorneys fees is barred by the so-called American rule.   The plaintiff urges the court to deny the motion to strike as to each of the four counts, opposes each of the arguments offered by the defendant and insists that there are questions of fact which need to be determined at a later date and are therefore not appropriately resolved via a motion to strike.

For reasons that are hereinafter set forth the court will deny the motion to strike with regard to the first three counts and grant the motion with regard to the fourth count of the plaintiff's complaint.

B. Motion To Strike

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any [complaint] ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998).  “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771 (2002).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576 (1997).   The role of the trial court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint [or a count in a complaint] challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Doe v. Board of Education, 76 Conn.App. 296, 299-300 (2003).   In assuming the truth of the specific factual allegations contained in the plaintiff's complaint and any facts that are fairly provable thereunder, which the court is obligated to do, the court should “read the allegations broadly ․ rather than narrowly.”  Strum v. Harb Deveopment, LLC, 298 Conn. 124, 130 (2010).   In deciding a motion to strike, a court is not permitted to consider facts outside of the pleading which is the subject of the motion.  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990).  “It is incumbent on the plaintiff to allege some recognizable cause of action in his complaint.”  Id. “In reading the complaint we follow the modern trend, which is to construe pleadings broadly and realistically, rather than narrowly and technically ․ As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient.”   Edwards v. Tardif, 240 Conn. 610, 620 (1997).

II. The First Count-Fraud

A. Claims of the Parties

As noted in the first count, the plaintiff alleges that a fraud was perpetrated on him by the defendant's concealment of the true paternity of the two children, which was known to the defendant since the time of each of the children's birth.   The defendant however argues that he had no legal duty to disclose as there was no legally recognizable relationship between the defendant and the plaintiff which would require such disclosure.   The defendant cites Watertown Savings Bank v. Mattoon, 78 Conn. 388, 393 (1905), for the proposition that without a duty to disclose there is no basis for finding a fraudulent concealment.   Further, the defendant cites Egan v. Hudson Nut Producers, Inc., 142 Conn. 344, 347 (1955), wherein our Supreme Court held that since mere nondisclosure does not ordinarily amount to fraud, any duty to speak must arise only under “exceptional circumstances.”   The defendant argues that the requisite circumstances are lacking in this case.   In his brief (p. 6), the defendant correctly points out:  “There appears to be no Connecticut case holding that a man has a duty to disclose to another, an unrelated second man, his suspicion that he, the first man, may be the father of the second man's children.”   Emphasis added.   To bolster his argument, the defendant cites Miller v. Pelzer, 159 Minn. 375, 199 N.W. 97 (Minn.1924), in which that state's Supreme Court held that foster parents had no legal duty to disclose to the foster child that the defendants were not the child's biological parents.   From this the defendant argues that a man should suffer no legal duty to disclose to another unrelated man the true paternity of his stepchildren.

In response, the plaintiff, correctly points out that he has not alleged that the defendant harbored any mere “suspicion” that he was the father of his two children;  the plaintiff alleges that the defendant actually knew that he was the biological father of each of the children and that he knew this at the time that each were born yet he continued to withhold the true paternity from, not only the plaintiff but from the defendant's own children.   The plaintiff asserts that under the facts and circumstances as alleged in his complaint the defendant had a duty to disclose that he was the biological father of two children, whom the plaintiff nurtured and supported and treated as his own for ten years, having no reason to do otherwise as he did not have an inkling that these children were not his own.

The plaintiff cites Duksa v. City of Middletown, 173 Conn. 124, 127 (1977), wherein our Supreme Court, in discussing the plaintiff's claim that a contract with the city should be set aside due to alleged fraud instructed:  “To constitute fraud ․ there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or circumstance which imposes a duty to speak.” 3  The plaintiff points out that the complaint alleges that the defendant was in possession of facts and knowledge that he should not have kept from the plaintiff.   The plaintiff asserts, citing General Statutes Sec. 46b-215, that the defendant owed a duty of support to his two children, therefore, he had a statutory duty owed directly to those children which obligated him to speak and to disclose his paternity not only to those children, but to the plaintiff, who was furnishing their support.   Further, the plaintiff argues that, not only did the defendant have a legal duty to speak by disclosing his paternity, he had an equitable duty to do so as he continued to enjoy the benefits of fatherhood by visiting periodically with his children while allowing the plaintiff to assume the defendant's legal obligation to support those children.   Moreover, the plaintiff argues that the question of whether the facts of this case as alleged in the plaintiff's complaint give rise to a duty to speak on the part of the defendant is a question of fact.   The plaintiff asserts that it is not a question of law and ought not to be decided via a motion to strike.

B. Applicable Law

Recently, our Supreme Court reiterated the essential elements required to maintain an action founded upon a claim of fraud:  “The essential elements of an action in common-law fraud, as we have repeatedly held, are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  (4) the other party did so act upon that false representation to his injury ․ Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance.   In contrast to a negligent representation, [a] fraudulent representation ․ is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it.   This is so because fraudulent misrepresentation is an intentional tort.”  (Internal quotation marks and citations omitted.).  Sturm v. Harb Development, LLC, supra, 298 Conn.142.

More relevant to this case, the appellate court, in Garrigus v. Viarengo, 112 Conn.App. 655, 669 (2009), acknowledged a cause of action based upon fraud by silence and set forth the elements thereof:  “It is well settled that silence can constitute fraud under certain circumstances.   Fraud is defined as [d]eceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right ․ Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty.”   Emphasis included.

In Ragin v. Lee, 78 Conn.App. 848 (2003), chief judge Lavery addressed the independent right that a child possesses to have an accurate determination as to the child's paternity.   The court referred to the United States Supreme Court's pronouncement in Little v. Streater, 452 U.S. 1, 13 (1981), that the child in a paternity action has a “compelling interest” in the accuracy of a determination of the child's father and to our Supreme Court's instruction in Lavertue v. Niman, 196 Conn. 403, 408-09 (1985), that the child's interest in a correct determination of paternity also extends to the child's health as a correct diagnosis may depend upon the medical history of the child's family.   The Court in Lavertue observed:  “The child's interests in this regard are particularly strong.   Any determination that a particular individual is a child's biological father may have profound sociological and psychological ramifications ․ It is in the child's interest not only to have it adjudicated that some man is his or her father and thus liable for support, but to have some assurance that the correct person has been so identified.”   Emphasis included.   Noting that the child's guardian ad litem had an independent right to an accurate determination of paternity, the appellate court in Ragin concluded:  “We hold that a child who is the subject of a paternity action has a fundamental interest in an accurate determination of paternity that is independent of the state's interest in establishing paternity for the benefit of obtaining payment for the child's care and any interest that the parents may have in the child.”   Emphasis added.   Most recently, our Supreme Court, per Justice McLachlan, in addressing the multi-faceted issue of the legal ramifications of reproductive technology, opined:  “Moreover, no one can deny that assisted reproductive technology implicates an essential matter of public policy -it is a basic expectation that our legal system should enable each of us to identify our legal parents with reasonable promptness and certainty.”   Anthony Raftopol et al. v. Karma A. Ramey et al.  (SC 18484), issued January 5, 2011.   Emphasis added.

C. Discussion

As noted, the defendant asserts that there is “no legally recognizable relationship” between the plaintiff and him that would obligate him to disclose the true paternity of his two children.   Therefore, the defendant argues there can be no fraudulent concealment by him and no finding by the court that the facts and circumstances of this case constitute the requisite “exceptional circumstances” that would mandate such disclosure.

The allegations in the plaintiff's complaint, which the court must accept as true, and the strong public policy enunciated by the United States and the Connecticut Supreme Courts establish that the plaintiff and the defendant share a legally recognizable bond with the two children, i.e., both of them were and are “parents” to the children.   The defendant, although he purposefully did not disclose his true paternity to the children, was and is their biological parent, while the plaintiff was and continues to be the “psychological parent” of each of the children.   Our Supreme Court has defined the latter term as “one who, on a continuing, day-to-day basis, through interaction, companionship, interplay and mutuality, fulfills the child's psychological needs for a parent, as well as the child's physical needs.”  Temple v. Meyer, 208 Conn. 404, 408 (footnote 3) (1988), quoting from J. Golstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1979) p. 98.   The plaintiff certainly deserves recognition as the psychological parent of each of these two children, based upon the allegations in paragraph # 5 of his complaint, wherein he alleges:  “The plaintiff is named as the father of both of the children on the birth certificates and throughout their lives he has been a father to both children in every respect.  ‘He has worked and supported them and actively took part in all phases and aspects of their care and upbringing.  ‘He loved them and cared for them as any good father would do for his children.’'

This court finds that the fact that each of the parties was and is under our law a parent to each of the children, coupled with the children's right to know their true paternity, does meet the “exceptional circumstances” test established by our Supreme Court in Eagan, supra.   Moreover, given the fact, as alleged by the plaintiff, that the defendant actually knew from the time of each child's birth that he was their biological father, yet, for more than a decade, failed to disclose that knowledge to the children, preferring to allow the plaintiff to provide for all of their psychological and physical needs, meets the “fraud by silence” test implemented by the appellate court in Garrigus, supra.   The defendant, by his silence, suppressed the truth and in this court's view not only violated the “plain rules of common honesty,” but acted contrary to any concept of common decency.   The plaintiff has sufficiently pled a cause of action based upon fraud by silence.   The defendant's public policy and criminal conversation arguments will be hereinafter addressed.

III. Count Two-Intentional Infliction of Emotional Distress

A. Claims of the Parties

The plaintiff's second count is based upon a claim that the defendant's conduct as alleged in the first count meets Connecticut's test for intentional infliction of emotional distress.   In that count the plaintiff alleges that he has suffered and continues to suffer extreme emotional, mental and psychological distress, which includes such physical manifestations as loss of appetite weight loss and digestive disorders, all due to his discovery that his relationship with his wife and his /her two children were based upon a fraud intentionally perpetrated upon him by the defendant.

The defendant argues that the conduct alleged by the plaintiff was not conduct at all as no action was taken by him to cause the plaintiff any emotional distress.   According to the defendant it is the defendant's non-action that is at issue.   The defendant argues that one cannot inflict emotional distress on another simply by remaining silent.   The defendant points out that the plaintiff's alleged distress was occasioned by a court notice that the plaintiff happened to see, not by anything that the defendant said or did to the plaintiff.   Again, the defendant asserts that he owed no legal duty to the plaintiff.   Finally, the defendant claims, rather disingenuously, that his efforts to conceal the true paternity from the two children and from the plaintiff is inconsistent with any finding of intentional infliction of emotional distress, because the purpose, i.e., his intent, was to prevent the plaintiff from discovering the truth.   The defendant insists that there can be no finding of intentional infliction of emotional distress without some affirmative action that triggers serious emotional distress.

The plaintiff responds that whether the defendant's conduct, as alleged in his complaint, was “extreme and outrageous” is a question of fact, not a question of law which ought to be decided by the trier of fact and not via a motion to strike.   Should the court decide otherwise however, the plaintiff argues that the defendant certainly should have seen that the plaintiff would suffer serious, if not “horrific” emotional damage once the truth of the children's paternity was disclosed and the defendant's “reprehensible” conduct became known.   The plaintiff asserts that no reasonable person would disagree that the defendant's decade of silence, while intentionally allowing the plaintiff to build a loving relationship with and to provide financial and parental support for the defendant's biological children exceeded all bounds tolerated by a decent society.   Finally the plaintiff posits that no one can seriously suggest that he did not experience “horrific feelings of fear, uncertainty, anguish and anger” due to the defendant's reprehensible conduct.

B. Applicable Law

In Little v. Yale University, 92 Conn.App. 232, 239-40;  cert denied, 276 Conn. 936 (2005), the appellate court provides the test for a cause of action based upon a claim of intentional infliction of emotional distress:  “In determining whether a plaintiff may maintain an action for intentional infliction of emotional distress, the plaintiff must establish four elements.   It must be shown:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe ․ Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury ․ Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his [her] resentment against the actor, and lead him to exclaim, Outrageous!  ․ Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Internal quotation marks and citations omitted.)

“[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable factfinder could find to be extreme or outrageous.   In exercising this responsibility, the court is not fact finding, but rather making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.”  Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847 (2006).

C. Discussion

The court agrees with the defendant that the initial question as to whether the defendant's conduct as alleged by the plaintiff can reasonably be considered “outrageous” is a question of law.   The court, however, as the gatekeeper on this issue, agrees with the plaintiff that, in accepting the plaintiff's allegations as true, the recitation of those facts to an average member of any civilized community could cause that person to view the conduct of the defendant as atrocious, utterly intolerable and outrageous.   The plaintiff has pled sufficient facts about which reasonable people could conclude that the defendant's conduct was extreme and outrageous.   This court therefore finds that the allegations in the second count of the plaintiff's complaint sufficiently meet the four-pronged test provided in Little.   Certainly a reasonable person can readily find that, at the very least, the defendant should have known and should have foreseen that his decade of deception, once revealed and owned up to, would cause the plaintiff the severe and continuing emotional distress that he alleges.

As hereinbefore discussed, fraud can be actionable whether it takes the form of a false representation or whether committed by silence and deceit.   Likewise, intentional emotional distress may be inflicted upon an individual by the perpetrator's deceptive silence once finally disclosed just as severely as any affirmative action.   Moreover, in this case the plaintiff's knowledge of the defendant's decade of deception perpetrated upon him and the children by the defendant came about through the defendant's intentional action in filing his motion for visitation in the family court.   It was that action which compelled the plaintiff's spouse to disclose the true paternity of the two children to the plaintiff, the proximate result of which was the plaintiff's severe emotional distress.   The plaintiff has sufficiently pled a cause of action based upon intentional infliction of emotional distress.

IV. Count Three-Negligent Infliction of Emotional Distress

The third count is based upon a claim of negligent infliction of emotional distress.   Although lacking the “extreme and outrageous” element which is the core of intentional infliction, a count brought on the theory of negligent infliction has many of the same elements than its more serious counterpart.   Although the defendant has not raised the issue, this count appears to be inconsistent with the second count, which alleges that the plaintiff's emotional distress was caused by the defendant's intentional conduct.   The plaintiff, however, as antithetical as these alternative causes of action may appear, is entitled under Connecticut law to plead in this manner.  “Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.”  Read v. Plymouth, 110 Conn.App. 657, 661-62;  cert. denied, 289 Conn. 955 (2008).

“A plaintiff pursuing a cause of action for negligent infliction of emotional distress “has the burden of pleading that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily injury.”  Parsons v. United Technologies Corp., 243 Conn. 66, 88, (1997).   In order to establish a claim for negligent infliction of emotional distress, a plaintiff must prove the following:  “(1) that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) that the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).   Our Supreme Court “continually [has] held that in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that [his] conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”  Murphy v. Lord Thomson Manor, Inc., 105 Conn.App. 546, 552-53, cert. denied, 286 Conn. 914 (2008).   Emphasis added.

The defendant correctly asserts that there can be no finding of negligent infliction of emotional distress without first finding that the defendant owed some duty to the plaintiff, citing Ginsberg v. Manchester Memorial Hospital, (CV-09-5030482), judicial district of Hartford, February 2, 2010 (Peck, J.) [49 Conn. L. Rptr. 341].4  This court has found in its discussion of the first count that the defendant, as the natural parent, who knew that he fathered each of the two children, had a duty to disclose their true paternity, not only to the children but to the plaintiff, who was the psychological parent of each of the defendant's children.   Additionally, the defendant argues that the plaintiff has failed to allege that the defendant's conduct created an unreasonable risk of causing emotional distress and that such distress was severe enough to result in illness or bodily harm.   To the contrary, the plaintiff has incorporated into the third count those allegations which are set forth in paragraphs # 21 and # 22 of the second count which, if true, given the court's discussion of the second count, would establish a cause of action based on negligent infliction of emotional distress.   The plaintiff has sufficiently pled an alternative cause of action based upon negligent infliction of emotional distress, however, as previously stated, whether the defendant's policy and criminal conversation arguments will negate the court's findings as to the first, second and third counts will hereinafter be addressed.

V. The Fourth Count-Unjust Enrichment

A. Claims of the Parties

The plaintiff brings the fourth count against the defendant based upon the equitable principle of unjust enrichment.   The plaintiff asserts that for more than a decade the defendant avoided his legal obligation to support his two children and unjustly relied on the plaintiff to do so.   Apparently, the plaintiff seeks reimbursement from the defendant for the years of child support that the plaintiff paid, believing throughout that he was the biological father of each of the children.

The defendant, citing Burns v. Koellmer, 11 Conn.App. 375, 383-85 (1987), argues that the concept of unjust enrichment, sometimes referred to as quasi-contract, has its origins in contract law and applies only to circumstances in which the same remedy is given as would be given if the obligation arose out of some type of legally recognizable contractual relationship.   The defendant asserts that the plaintiff's complaint, “does not even faintly suggest that an implied-in-law or quasi-contract could be inferred from the actions of the parties,” as the parties were strangers;  no relationship of any kind existed between them.

Additionally, the defendant argues that the plaintiff suffered no detriment as the plaintiff was under a legal obligation to support each of the two children from birth until January 3, 2008, when the defendant acknowledged his paternity in the family proceeding initiated by him.   The defendant cites Schaffer v. Schaffer, 187 Conn. 224, 226 (1982), for the long-standing principle that a child born during lawful wedlock is presumed to be the child of the husband and that the presumptive non-biological father remains under a legal duty to support that child until clear and convincing proof is presented that someone else is the child's biological father.   The defendant correctly asserts that in Connecticut the required proof is either an affirmation of paternity by the mother and acknowledgment of the same by the biological father or the entry of court judgment finding paternity.5  The court has read the plaintiff's brief several times and is unable to find therein any responsive argument to the defendant's motion to strike the fourth count.

B. Applicable Law

In Stewart v. King, 121 Conn.App. 64, 70-71 (2010), Judge West provides an excellent summary of the manner in which our appellate courts address the equitable concept of unjust enrichment:  “[W]herever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restitution of the value of what has been given must be allowed ․ Under such circumstances, the basis of the plaintiff's recovery is the unjust enrichment of the defendant ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ․ With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Citations omitted;  internal quotation marks omitted.)   Emphasis added.  “[E]quitable remedies are not bound by formula but are molded to the needs of justice ․ Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine ․ That doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated ․ The question is:  Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?”

Recently, the appellate court in Andy's Oil Service, Inc. v. Thomas Hobbs et al., 125 Conn.App. 708, 713-14 (2010), stated:  “Unjust enrichment is a broad and flexible equitable doctrine and generally available as a remedy when no remedy is available pursuant to a contract.   The right of recovery for unjust enrichment is equitable, its basis being that a given situation it is contrary to equity in good conscience for [one] to retain a benefit which has come to him at the expense of [another].   A court may award a plaintiff damages under the doctrine of unjust enrichment if the plaintiff can establish” (1) that the [defendant] was benefited, (2) that the [defendant] unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiff's] detriment.  (Internal quotation marks and citations omitted.)

C. Discussion

The defendant argues that the concept of unjust enrichment has its origins in contract law, an argument which appears on the surface to be justified in light of the appellate court's reference to the existence of a contract in the cases cited above.   That court, however, in its most recent statement of the law of unjust enrichment has ruled that a contractual relationship between the parties is not essential to the establishment a claim for unjust enrichment:  “We note, additionally, that the doctrine of unjust enrichment is grounded in the theory of restitution, not in contract theory ․ [b]oth unjust enrichment and quantum meruit are doctrines allowing recovery on the theory of restitution, that is, the restoration to a party of something of which he was deprived because of the unjust enrichment of another at his expense ․ Broadly speaking, the availability of restitution is dependent upon unjust enrichment, that is, upon a perceived injustice because one party has benefited at the expense of another.   In a narrower sense, unjust enrichment has been the form of action commonly pursued in this jurisdiction when the benefit that the enriched party receives is either money or property ․ The other form of action for restitution is quantum meruit, which has been utilized when the benefit received was the work, labor, or services of the party seeking restitution.   Our Supreme Court has also noted that a claim for unjust enrichment is sometimes denominated [an] implied in law claim or quasi-contract claim ․ [I]t has summarized that unjust enrichment, quantum meruit and quasi contract are all based upon common law principles of restitution, [and] are all noncontractual actions by which a party may recover despite the absence of a valid contract.”  (Internal quotation marks and citations omitted.)   Schirmer et al. v. Souza et al.  (AC 31788), February 22, 2011.   This court must therefore disagree with the defendant that a contractual relationship is a necessary prerequisite to a cause of action based upon a claim of unjust enrichment.

The court, however, agrees with the defendant that the plaintiff suffered no legally recognizable detriment as, based upon the presumption referred to in Schaffer, supra, the plaintiff was legally obligated to support the two children of his spouse, each born during the marriage, until January 2008, when the true paternity of the children was found and adjudicated by the family court.6  Thus, by virtue of this presumption, the plaintiff is unable to establish either that the defendant “unjustly” did not pay to the plaintiff any benefits to which the plaintiff was entitled or that the failure of the defendant to reimburse the plaintiff for the decade of child support that the plaintiff paid was to the plaintiff's legally recognizable detriment.

Moreover, this court is compelled to find an additional equitable reason for striking the third count, a reason founded upon the defendant's primary obligation, now court-ordered, to financially support his two biological children.   Should the court allow this cause of action to proceed further, the plaintiff is apparently seeking from the defendant, a dollar-for-dollar as it were, reimbursment of child support that he paid, while the defendant is under an order to pay current child support.   The damages sought by the plaintiff in this count, if awarded by a court or jury on a dollar-for-dollar basis, would undermine the ability of the defendant to pay the current child support ordered by the family court.   Such an award in this court's view would be contrary to the strong public policy that a parent must support his or her child and would potentially threaten the welfare of the two children who are loved by both of the parties to this dispute and who are at the center of the controversy in this and in the family court.   Given that love and affection and the ongoing parental (biological/psychological) bond that each of the parties has with the two children, this court must consider the best interest of those children.   A court ordered dollar-for-dollar back child support payment imposed upon the defendant to reimburse the plaintiff for a decade of past child support, while the defendant is obligated to pay the current child support order would be contrary to the best interest of these two children.   For all of the reasons discussed above the court will strike the fourth count of the plaintiff's complaint.

VI. Criminal Conversation

In his motion to strike and supporting memorandum, the defendant argues that the public policy of this state and the legislature's abolition of the common-law doctrine of criminal conversation should preclude the plaintiff from pursuing all four causes of action.   Although neither party has specifically raised the issue, the court has considered whether the motion to strike is the appropriate vehicle to decide an issue invoking public policy.   In their briefs both parties address the criminal conversation and the more general public policy issue raised by the defendant in his motion to strike but neither party touches upon the issue raised by the court.   Our Supreme Court has approved of the use of a motion to strike to decide questions of law such as the issue of public duty and governmental immunity.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988).   This issue does appear to fall into a similar category in that it does present, at least initially, a question of law.   Thus far, based upon the elements required to establish each cause of action, this court has agreed with the plaintiff as to the first three counts and has expressed its disagreement as to the fourth count.   The court's analysis, however, is not yet completed due to the defendant's public policy arguments which the court will now address.

The defendant argues that if the court were to deny his motion to strike the fraud and intentional and negligent infliction of emotional distress counts, such action would be contrary to what the General Assembly intended when it abolished the common-law actions typically referred to as alienation of affections and criminal conversation.7  “At common law, a plaintiff could bring a variety of damages actions arising in the context of romantic relationships.   These included causes of action for alienation of affections, or criminal conversation;  the former tort action provided redress against a third party who won the love of the plaintiff's spouse, while the latter involved sexual intercourse with the plaintiff spouse.”  Brown v. Strum, 350 F.Sup.2d 346 (D.Conn., December 22, 2004).   With regard to the abolition of a cause of action based on alienation of affection our courts have adopted a narrow view of the types of common-law actions that the legislature intended to abolish.  “The predominant view is that Heart Balm statutes should be applied no further than to bar actions for damages suffered from loss of marriage, humiliation, and other direct consequences of the breach, and should not affect the rights and duties determinable by common law principles ․ ‘In our view, the Act was designed to do away with excessive claims for damages, claims coercive by their very nature and, all too frequently, fraudulent in character;  the purpose was to prevent the recovery of damages based upon confused feelings, sentimental bruises, blighted affections, wounded pride, mental anguish and social humiliation;  for impairment of health, for expenditures made in anticipation of the wedding, for the deprivation of other opportunities to marry and for the loss of the pecuniary and social advantages which the marriage offered.”  Piccininni v. Hajus, 180 Conn. 369, 373 (1980).   In that case the Court reversed the trial court's granting of a motion to strike the second count of the plaintiff's complaint against his former fiancé, which was based upon fraudulent misrepresentation.   The trial court had determined that 52-572b was a bar to that cause of action.   The plaintiff was the jilted fiancé who, in reliance upon the defendant's promise to marry, was induced to spend $40,000 to renovate the defendant's residence which the defendant promised would be the marital home of the couple.   Citing several decisions from the appellate courts of other jurisdictions our Supreme Court disagreed with the trial court and found that the Heart-Balm Act did not affect common-law principles which apply to gifts from fiancés based upon a conditional promise to marry.   The court pointed out that the plaintiff was not claiming that he was wronged by the defendant's refusal to marry him but by her refusal to return fraudulently induced property, which he transferred to her based upon her promise to marry.   Referring to Sec 52-572b, the appellate court in Bouchard v. Sunberg, 80 Conn.App. 180, 198 (2003), instructed:  “In determining whether an action is barred ․ we consider the underlying conduct alleged in the plaintiff's complaint.”   Emphasis added.

The defendant cites Doe v. Doe, 358 Md. 113, 747 A.2d 617 (2000), wherein the Maryland court of appeals affirmed the trial court's action in striking fraud and intentional infliction of emotional distress counts from a dissolution action which the plaintiff commenced against his spouse.   The appellate court held that the actions were essentially based upon the same matters that were barred when in 1980 the court of appeals abolished the doctrine of criminal conversation, finding that it violated Maryland's equal rights amendment.   The court stated:  “Regardless of whether Mr. Doe is suing Ms. Doe or her paramour, his asserted causes of action are based on the same conduct that formerly gave rise to a criminal conversation action, and he seeks damages for the same injuries recognized in a criminal conversation action.   Consequently, the identical public policy considerations, which led to the abolition of criminal conversation, are applicable here.  ‘Courts elsewhere have held that tort actions, regardless of label, based upon adultery and misrepresentation of paternity, are barred by the same public policy which led to the abolition of the action for criminal conversation.’  “ Id. At pages 621-22.   Additionally, the defendant makes reference to our Supreme Court's definition of the common-law tort of criminal conversation as an action by a spouse which sought compensation for loss of consortium, mental anguish and injury to character.  Valentine v. Pollock, 95 Conn. 556, 561-62 (1920).   The defendant then argues that the public policy of this state, which warranted the abolition of criminal conversation by our legislature, should be a bar to any cause of action that is grounded upon a substantially similar fact pattern.

The defendant's argument however ignores the narrow interpretation of the Heart-Balm Act which was adopted by our Supreme Court in Piccininni, supra.   This court in recognition of that interpretation agrees with Judge Hale's opinion in Dufault v. Mastrocola (CV-94-0543343), judicial district of Hartford-New Britain, at Hartford;  1996 Ct.Sup. 1772 (1996), who held that not all common-law actions based upon the underlying premise of alienation of affections are barred by the abolition of the tort of criminal conversation.   In that case the plaintiff brought four counts against his former alcohol abuse counselor, who, after convincing the plaintiff to involve the plaintiff's spouse in the counseling process, engaged in sexual relations with the plaintiff's spouse, after allegedly using confidential information about the relationship that the plaintiff had disclosed to the defendant.   The defendant argued that the legislature's abolition of alienation of affection and criminal conversation was a bar to, inter alia, the plaintiff's claims of intentional and negligent infliction of emotional distress.   After reciting certain specific allegations in the plaintiff's amended complaint, that included claims of outrageous conduct, severe emotional distress and an allegation that the defendant should have been aware that his conduct posed a serious risk of emotional distress to the plaintiff, Judge Hale, relying on Piccininni, denied the defendant's motion to strike finding that the legislature's abolition of the tort of criminal conversation was not a bar to the plaintiff's action.

Courts from other jurisdictions have adopted similar reasoning.   In G.A.W., III v. D.M.W., 596 N.W.2d 284, 289 (1999), the Minnesota Court of Appeals held that the plaintiff's claims for fraud, intentional and negligent infliction of emotional distress based on misrepresented paternity were “not barred by the abolition of the ‘heart balm’ court actions of breach of promise, alienation of affections, criminal conversation and seduction ․ If the legislature had intended to abolish other torts arising out of the marital relationship ․ it would have so provided.”   Emphasis added.   That same year, a New Jersey court held that intentional infliction of emotional distress against a wife based on misrepresented paternity was not barred by the Heart-Balm Act or by New Jersey's abolition of the tort of criminal conversation.   After stating that “[c]riminal conversation is a common-law reference to adultery which is seen as criminal conversation with the man's wife,” the court found that the complaint made reference to events which transpired after the alleged adulterous relationship, i.e., the birth of the children.  “Because [damages are being sought] neither for his wife's adultery, nor for the emotional distress suffered as a result of that adultery, but rather for the emotional distress which resulted from learning that the children he has been led to believe he fathered, were, in fact, borne of the adulterous relationship ․ the cause of action is not barred by the ban on causes of action for criminal conversation.”  C.M. v. J.M., 726 A.2d 998, 1000-01 (January 5, 1999).   The court felt compelled to extend liability to the wife's paramour as well.   The paramour, who was also a defendant in the action, argued, as does the defendant in this case, that he had no duty to inform the husband of the extramarital affair or the true paternity of the children.   The court opined that an independent cause of action for emotional distress may exist even absent a specific duty owed to the injured party.  “If a consequence of child birth includes the infliction of emotional distress upon a spouse, who is deliberately, recklessly and wrongfully led to believe he is the parent, this court would be delinquent not to permit an action for damages against more than the one involved party.”  Id., 1003-04.  “But for [the paramour's] sexual participation in this extramarital affair ․ these two children would not have been born.   Furthermore, [the paramour] abandoned any obligation to the children, while J.M. helped his wife feed, raise, fund, educate and nurture children that were not his own.   This is indeed outrageous and, in the eyes of this court, [the paramour] is as accountable for these children as [the wife], and thus should also bear responsibility for the consequences.”  Id. 1004.   Emphasis added.

Adopting the reasoning of the cases cited above this court agrees with the plaintiff that the causes of action based upon the factual background set forth in the first (fraud), second (intentional infliction of emotional distress) and third (negligent infliction of emotional distress) counts of the plaintiff's complaint are not barred by the legislature's abolition of the doctrine of criminal conversation as embodied in General Statutes Section 52-572f.

VII. The Broader Public Policy Issue

A. Claims of the Parties

In addition to the more particularized argument that the legislature's abolition of criminal conversation is a bar to all four counts of the plaintiff's complaint, the defendant advances a more generalized public policy argument based on a Connecticut trial court decision and several appellate decisions in other jurisdictions.   The defendant concedes that there is no Connecticut case at the trial court or appellate level that holds that a man has no duty to disclose to another unrelated male his “suspicion ” that he “may ” be the father of the latter's child.   He points, however, to Judge Jones' opinion in Fischer v. Zollino (CV-08-5004847), judicial district of New Haven;  2010 Ct.Sup. 782, December 8, 2009 [49 Conn. L. Rptr. 33], as authority favorable to his position that the defendant asserts was based on a factual scenario similar to the case before this court.   In Fischer, the plaintiff, believing that the second daughter born to his wife was fathered by him, supported that child for fifteen years, only to learn that that child was the product of an extramarital affair that his wife had with the defendant.   The issue presented to the court that is relevant to the case before this court was, in Judge Jones' words:  “Whether the plaintiff can collect reimbursement from the defendant for previous incurred expenses in [the child's] upbringing under the theories of misrepresentation, nondisclosure and unjust enrichment.” 8  The plaintiff's three causes of action against his spouse were tried to the court.   The court viewed all of the theories advanced by the plaintiff as, “amount[ing] to the plaintiff's attempt to collect reimbursement from the defendant for expenses that the plaintiff incurred in [the child's] upbringing.”   The court applied “laws pertaining to issues of paternity and child-support in reaching its decision to deny all three of the plaintiff's theories and entered judgment in favor of the defendant.   In reaching his conclusion, Judge Jones relied on the Schaeffer presumption of spousal paternity hereinbefore discussed and on our Supreme Court's decision in W. v. W., 256 Conn. 657 (2001), wherein the court found that the trial court, in a dissolution action, “properly estopped a nonbiological father of a minor child from denying his parenthood when the previously missing biological parent has been found.”  Id., 658.   Judge Jones applied the Court's reasoning in W. v. W. to the matter before him, noting that:  “[T]he court estopped the former putative father from disputing his paternity because the court was concerned that doing so, after so many years, would be harmful to the child” as the child was led “to believe that she could rely on the plaintiff to fulfill her financial and emotional needs” as she believed, throughout her entire life, that the plaintiff was her father.   Most significantly, in reaching his decision Judge Jones noted:  “The facts of the present case indicate that the plaintiff suspected that [the child] might not be his biological child.   Yet, despite these suspicions, the plaintiff waited fifteen years to bring a cause of action to dispute his paternity of [said child].”   Emphasis added.   As this court has done in reaching its decision to strike the fourth count of the plaintiff's complaint, Judge Jones “place[d] the utmost importance on the best interests of the child and, as such, it would be contrary to public policy to permit the plaintiff in this case to dispute his paternity of [said child] at such a late date.”   The court, in Fisher, then went on to cite and discuss decisions from other jurisdictions that followed a similar rationale and held that a man is not entitled to be reimbursed for the support of the child that he believed was his when later excluded as a biological father.

In Day v. Heller, 264 Neb. 934, 935;  653 N.W.2d 475 (2002), the Nebraska Supreme Court rejected the former husband's claims of fraud, assumpsit and intentional infliction of emotional distress, which the plaintiff brought against his former wife, claiming that for many years, she misrepresented the paternity of a child whom he thought to be his own and to whom he provided emotional and financial support.   The Court stated:  “In effect, [the former putative father] was saying ‘He is not my son;  I want my money back’ ․ We do not believe that having a close and loving relationship ‘imposed’ on one because of a misrepresentation of biological fatherhood is the type of ‘harm’ that the law should attempt to remedy ․ Moreover, a tort or assumpsit claim that seeks to recover for the creation of the parent-child relationship has the effect of saying ‘I wish you had never been born’ to a child who, before the revelation of biological fatherhood, was under the impression that he or she had a father who loved him or her.”  Id., 939.   As stated by Judge Jones:  “The court held that the former husband was not entitled to damages for these claims, because his ‘fraud and intentional infliction of emotional distress and assumpsit causes of action [were] contrary to public policy.”  Id., 944.

In Richard P. v. Superior Court, 202 Cal.App.3d 1089 (1988), the appellate court was mainly concerned with the best interests of the two children when it rejected on public policy grounds a former husband's fraud and intentional infliction of emotional distress claims which were brought against his wife's paramour, who, after the initiation of a dissolution action, was found to be the biological father of each of the children.   As in this case, the former husband argued that the biological father had a duty to disclose the true paternity and that, based upon the concealment of the truth, he was fraudulently induced to support children who were not his own.   In rejecting this argument, the court stressed two important considerations, each grounded in public policy.  “We conclude here that any wrong which has occurred as a result of Richard's actions is not one which can be redressed in a tort action.   We do not doubt that this lawsuit emanated from an unhappy situation in which the real parties in interest suffered grief.   We feel, however, that the innocent children here may suffer significant harm from having their family involved in litigation such as this and that this is exactly the type of lawsuit which, if allowed to proceed, might result in more social damage than will occur if the courts decline to intervene.   We do not believe that the law should provide a basis for such interfamilial warfare.”  (Internal quotation marks and citation omitted.)   Emphasis added.  Id., at page 1094.   The second element involved consideration of the strong public policy that favors disclosure of a child's paternity.  “Furthermore, to allow the imposition of tortious liability in circumstances such as these would frustrate the strong public policy in having natural fathers acknowledge and support their own children.   Men in Richard's situation, who are otherwise willing to voluntarily acknowledge and support their children would have a strong disincentive to do so since revealing the truth would expose them to this type of tort action for compensatory and punitive damages.   We deem this result undesirable as a matter of public policy.”  Id., at page 1096.

The court agrees with the plaintiff that Judge Jones' opinion in Fischer is clearly distinguishable from this case on its essential facts.

B. Discussion

In Fisher, the husband had harbored a suspicion for years that he was not the biological father of the second child yet did nothing to pursue the issue until the child was fifteen years of age.   In this case, accepting the plaintiff's allegations as true, the plaintiff had no idea, no suspicion, not an inkling, that another man (the defendant) might have fathered his two children.   Furthermore, the mechanism that finally brought out the truth was the defendant's initiation of a visitation motion in the family court based upon the fact that the defendant knew, from the time of each of the children's birth, that he was their father and intentionally and fraudulently concealed the truth from the children and from the plaintiff.   The plaintiff also points out that as a result of those proceedings, the children were told, at ages seven and nine respectively, that the defendant was their father.   When they were ages eleven and nine they were visiting their biological father under a court-ordered parenting plan.   They are now fourteen and twelve and have now known for seven years that the defendant is their biological father and that the plaintiff is not.   The disruption in the family about which the Nebraska Supreme Court and the California appellate court were chiefly concerned has long since occurred.   The bulk of any social damage so feared by the court in Richard P. has been done.   Under the unique and disturbing factual background of this case considerations of public policy should not be a bar to the plaintiff's right to seek some measure of monetary damages as a result of the defendant's reprehensible conduct.

The Illinois appellate court and the Oklahoma Supreme Court would agree with this court's analysis and conclusion.   In Koelle v. Zwiren, 284 Ill.App.3d 778;  672 N.E.2d 868 (1996), the appellate court held, inter alia, that the plaintiff's fraud and intentional infliction of emotional distress claims against the defendant based on misrepresentation of paternity was not barred by public policy.   In this case, the defendant engaged in a sexual relationship with the son of her former boyfriend telling him that she was unable to get pregnant.   Known to the defendant and the biological father, who was a rich executive and client of the defendant's advertising firm, but unbeknown to the plaintiff, the defendant devised a fraudulent scheme to keep her affair a secret and informed the gullible young plaintiff that he was the father of her daughter.9  For eight years thereafter the plaintiff was involved in the child's life and formed a loving father-daughter relationship with the child, in effect becoming a psychological parent to the child.   After confiding in a few of his friends and after engaging in therapy the plaintiff decided to pursue paternity testing, which proved that he was not the child's father.   This action then ensued, in which, in addition to money damages for the fraud perpetrated and intentional infliction of emotional distress inflicted upon him by the defendant, the plaintiff sought rights of visitation with the child.   The trial court found in the defendant's favor and dismissed all counts.   The defendant had argued that the plaintiff's intentional infliction of emotional distress claim was barred by public policy because “love and affection are non-compensable.”  Id., at page 788.   In reversing the lower court, the appellate court found:  “[T]he plaintiff does not seek to be paid for the love and affection he gave [the child].   In fact, his complaint expresses his desire to continue their relationship.   The complaint alleges that [the] plaintiff suffered severely as a result of [the] defendant's allegedly fraudulent scheme ․ the trial court erred in suggesting that [the] plaintiff seeks to be compensated for loving [the child].   He seeks to be compensated for the losses he has suffered due to [the] defendant's alleged fraud and for the pain and anxiety he has felt due to her alleged intentional infliction of emotional distress.”  Id. At page 789.   In response to the defendant's argument that the public policy of the state of Illinois disfavors this type of civil action because such a lawsuit would promote “interfamilial warfare,” citing Richard P., supra, the court responded:  “[A]ny harm [the child] may have suffered from this alleged situation would have been caused by the defendant ․ [P]ublic policy does not serve to protect people engaging in behavior such as that with which [the] plaintiff's complaint charges [the] defendant, and [the court] will not allow [the] defendant to use her daughter to avoid responsibility for the consequences of her alleged deception.”  Id.

In Miller v. Miller, 1998 OK 24;  956 P.2d 887 (1998), the Oklahoma Supreme Court, in reversing the trial court and appellate court, permitted the plaintiff's claim of intentional infliction of emotional distress based on misrepresented paternity against his former wife and her parents.10  In this case, the defendants knowingly misrepresented to the plaintiff that he was the father of the child.   For fifteen years thereafter the plaintiff believed that he was the father until the child was told the truth after her parents were divorced.11  It was the child who informed the plaintiff that he was not her father.   In finding that the plaintiff stated sufficient facts upon which a reasonably prudent person could conclude that the defendant's conduct was extreme and outrageous, the Court disagreed with the lower court's finding that the behavior complained of was “confessing a fifteen year lie and revealing ․ the identity of ․ [the child's] biological father.”   The Supreme Court opined that:  “This rather cold and lifeless characterization of defendant's conduct fails to take into account much of what plaintiff alleges including ․ (2) causing the plaintiff to develop a parental relationship with a child, believing the child to be his biological offspring, then causing plaintiff to learn that the child was not biologically his own, (3) using the plaintiff to fulfill the emotional, physical, and financial obligations of a husband for almost five years and of a father for fifteen years, knowing that these obligations were not really his ․ [and] (7) causing the plaintiff to suffer from the knowledge that he had been hoodwinked and used ․” Id., at page 902.

In this case the allegations contained in the plaintiff's complaint are substantially similar to those in Koelle and Miller.   The defendant's decade of deception and fraudulent conduct, as specifically detailed by the plaintiff, could cause a reasonable person to exclaim “Outrageous!” and does cause this court to conclude that the pursuit by the plaintiff of the causes of action invoked in the first three counts of the plaintiff's complaint does not violate the public policy of this state.

VIII. Punitive Damages

The defendant moves to strike the third component of the plaintiff's claim for relief, i.e., the claim for attorneys fees.   The defendant cites LLP Mortgage, Ltd. v. Lynch, 122 Conn.App. 686, 702 (2010) for the holding that Connecticut follows the so-called “American rule” that permits an allowance of attorneys fees only if a contract or statute permits recovery of the same.   The defendant correctly points out that there is no allegation of either a contractual relationship between the plaintiff and the defendant or of any statutory provision that would permit the plaintiff to recover attorneys fees.   Although the plaintiff is technically correct, the plaintiff does not seek to strike the second component of the plaintiff's prayer for relief, i.e., his claim for punitive damages which, if awarded, could include attorneys fees and expenses.   Any award of punitive damages would be purposed to punish the defendant for what the factfinder would determine as outrageous and intentional conduct, as is implicated in the allegations found in the second count of the plaintiff's complaint.   Thus, an exception to the American rule, or rather, an addition to it, is that attorneys fees may be recovered as part of an award for punitive damages.  Stohlts v. Gilkinson, 87 Conn.App. 634, 646 (2005).   Therefore, to the extent that the plaintiff's third claim for relief is related to his fourth claim, the defendant's motion to strike the claim for attorneys fees is denied.

IX. Conclusion

For the reasons stated herein, the defendant's motion to strike (# 106) the first, second and third counts of the plaintiff's complaint and the third component of the plaintiff's prayers for relief is denied.   The defendant's motion to strike the fourth count of the plaintiff's complaint is granted.   For those same reasons, the plaintiff's objection (# 112) to said motion is sustained as to the first, second and third counts and as to the plaintiff's third prayer for relief.   The objection is overruled as to the fourth count of the plaintiff's complaint.

Wilson J. Trombley, Judge

FOOTNOTES

1.  FN1. In a Memorandum of Decision dated July 23, 2009, the court (Bozzuto, J.) noted that on January 30, 2008, joint legal and physical custody of two children was awarded to their mother and the plaintiff while the defendant was granted visitation rights per a parenting plan and was ordered to pay $155 per week in child support.   The plaintiff had been allowed to intervene as a party to the family matter, however, via this memorandum, the court denied the plaintiff's motion, which sought reimbursement for the child support he paid for each of the children.   In denying the plaintiff's (intervenor) motion, which was filed pursuant to General Statutes Section 46b-215, the court inserted the following caveat:  “[T]his ruling does not preclude the intervenor, nor the defendant (the mother), from bringing any further action he or she may deem necessary in civil court.”   Gary Perella v. Josinette DiMichele (FA-07-4012677), judicial district of Waterbury, July 23, 2009, Bozzuto, J.

2.  FN2. In paragraph # 21 of the fourth count the plaintiff alleges:  “From January 2008, when the defendant was first ordered to pay child support at the rate of $155 per week, through the present, the defendant has only paid a fraction of the children's basic needs and has continued to rely upon the plaintiff to provide the majority of their needs and support, including but not limited to housing, food clothing, daycare, gifts, entertainment, medical insurance, medical and dental expenses, activities, etc ․” Emphasis added.

3.  FN3. There have been a total of four appellate cases, each involving the same parties and arising from the same circumstances.   In addition to that cited there is one prior thereto at 170 Conn. 716 (1976) and two decided thereafter at 174 Conn. 759 (1977), and at 192 Conn. 191 (1984).   None of the other appellate cases affect the quoted language.

4.  FN4. See also Gomes v. Commercial Union Ins. Co., 258 Conn. 603 (2001), wherein the Court instructed, “The existence of a duty of care is a prerequisite to a finding of negligence.”

5.  FN5. See General Statutes Sec. 46b-160 et seq., which govern paternity proceedings in Connecticut;  Sec. 46b-171, which obligates one who has been adjudged a biological father of a child to pay, inter alia, child-support and to provide health benefits for said child;  and Sec. 46b-172, which equates a duly executed affirmation and acknowledgment of paternity with a paternity judgment entered by the court.

6.  FN6. An excellent discussion of the etiology of this presumption, which is referred to as “one of the most persuasive known to the law,” and which was originally referred to by the English courts as the “four seas” or “Quatuor Maria” rule, is found in Beal v. Ross, 11 Conn.Sup. 323, 326 (1942).

7.  FN7. General Statutes Sec. 52-572b provides:  “No action may be brought upon any cause arising from the alienation of affection or from breach of a promise to marry.”  P.A. 67-275, as amended by P.A. 82-160.   This act is often referred to as the “Heart-Balm Act.”Section 572f provides:  “No action may be brought upon a cause arising from criminal conversation.”  P.A. 71-177 as amended by P.A. 82-160.

8.  FN8. Initially, the court found admissible the defendant's DNA sample, which had been ordered by the court prior to the trial pursuant to General Statutes Sec 46b-168(a), “without the necessity of foundation testimony and without requiring evidence in accordance with the common law,” citing Levin v. Hall, 44 Conn.Sup. 145, 148 [14 Conn. L. Rptr. 550] (1995).

9.  FN9. The defendant was twice the plaintiff's age and over the years had developed a mother-child relationship with him prior to their sexual encounters.   At the time of the lawsuit the biological father had died.

10.  FN10. It is noteworthy that the Supreme Court agreed with the defendants and the Court of Civil Appeals in dismissing the plaintiff's unjust enrichment claim.

11.  FN11. In his petition, the plaintiff alleged that in order to induce the plaintiff to marry their daughter, her parents knowingly misrepresented that he was the father and continued to perpetrate the fraud and deception for fifteen years during which the plaintiff performed his duties as the child's father and their daughter's husband.   The plaintiff further alleged that the defendants, as the Court put it “suddenly and unexpectedly pulled the proverbial rug out from under him by revealing to the child that [the plaintiff] was not in fact her father.”  Id., at page 891.   The defendants then attempted to convince the child to form a relationship with her biological father, thereby attempting to destroy the parent-child relationship that the plaintiff had developed.

Trombley, Wilson J., J.

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