Virginia Lawyers Weekly//May 1, 2023
Virginia Lawyers Weekly//May 1, 2023//
Where appellant alleged that appellees tortiously interfered with his parental rights involving the parties’ minor child, the trial court correctly sustained appellees’ demurrer.
Appellant Qiu and his wife married in 1995. When they separated, their daughter, M.Q., was eight years old. In 2016, while the divorce and custody matters were pending, the father filed a pro se tort complaint.
He named as defendants “Chaoyu Huang, the mother’s friend; Anna Ouspenskaya, M.Q.’s piano teacher and someone with whom the mother had a ‘deep friendship and intimate relationship’; and Arlene Starace, the mother’s attorney during the first part of the divorce and custody proceedings (collectively the defendants).”
Father did not have the complaint served until after the final divorce decree. The court “awarded joint legal custody … with primary custody to the mother. Father served defendants with the complaint. Defendants demurred.
“Counts one to four, eight, and nine are at issue in this appeal. Counts one, two, and three, respectively, alleged that Huang, Ouspenskaya, and Starace tortiously interfered with the father’s parental and custodial rights intentionally and without his consent.
“With regard to Huang and Ouspenskaya, the complaint alleged that they encouraged the mother to leave the father, helping her formulate and implement a departure plan that included taking M.Q. with her.
“The father further alleged that Ouspenskaya encouraged M.Q. to view her as a ‘substitute’ parental figure. With regard to Starace, the complaint alleged that she, too, intentionally interfered in the father’s parental and custodial relationship with M.Q. in various ways. …
“[N]one of the three women physically took M.Q. from the father or the mother. Instead, they merely encouraged and aided the mother in leaving the father and in obtaining a divorce and award of shared custody. …
“Count four of the complaint alleged that Starace committed fraud by falsely representing the nature of the mother’s relationship with Ouspenskaya, which he alleged was romantic. The count further asserted that Starace falsely represented that the father abused M.Q. and falsely alleged cruelty as a ground for divorce. The allegation included that these representations harmed his parental and custodial rights, and he requested damages in the same amounts as for the tortious interference claims.
“Finally, counts eight and nine alleged that Huang, Ouspenskaya, and Starace were involved in two different civil conspiracies.”
Defendants sought to stay the proceedings until the Virginia Supreme Court decided Padula-Wilson v. Landry, 298 Va. 565 (2020). They represented that Padula-Wilson “was likely to be dispositive of the issues raised in the father’s complaint or at least to ‘set forth the parameters’ under which his primary claims would be resolved.” The court granted the stay motion.
Three month later, after Padula-Wilson was decided, the circuit court lifted the stay and granted defendants’ demurrers. Father appealed.
The Virginia Supreme Court has recognized tortious interference with parental rights as a cause of action. …
“The holding in Padula-Wilson is sufficiently analogous to this case to control the outcome here. Preliminarily, to the extent the father’s allegations constitute a claim that third parties Huang and Ouspenskaya attempted to convince M.Q. that her father abused her in order to deprive him of her love and companionship, those allegations, standing alone, do not implicate the tort of interference with parental rights but only of alienation of affection, which is not recognized by Virginia law. …
“Further, to the extent the father contends that the defendants’ alienation efforts were for the ultimate purpose of interfering with his parental and custodial rights, these allegations fail to state a claim of tortious interference with parental rights as that action has been recognized in Virginia.
“This is so in part because … one cannot be permitted to do indirectly what he is forbidden from doing directly. A tortious interference claim cannot be brought directly against a parent who retains parental and custodial rights over a child. …
“Virginia law counsels and we now hold that the father must also be barred from bringing a tortious interference claim against the mother indirectly – by suing a third party whom he alleges merely attempted to impact her decision-making or participated in a related custody matter.
“To hold otherwise would improperly permit the complaining parent to do indirectly that which he cannot do directly. Further, it would run afoul of the holding in Padula-Wilson, which provides that the tort is available against a third party only where that person removes or detains a child from the complaining parent or prevents that parent from exercising his parental or custodial rights.”
The court correctly sustained the demurrer as to counts one, two, and three.
“The father argues that the fraud count is a ‘stand-alone’ claim not controlled by Padula-Wilson. We need not examine this claim in light of Padula-Wilson because we hold that a different ground provides a better basis for decision – our conclusion that the complaint fails to plead facts that meet all necessary elements of the tort of fraud.”
As to the reliance element in a fraud claim, “father avers that he defended himself by spending significant sums to dispute the representations of Starace that he said were false. This, of course, is precisely the opposite of relying on them.”
“Because the father did not allege a viable cause of action for tortious interference or fraud, he has also failed to state a claim for civil conspiracy to commit those torts.”
The circuit court correctly sustained “the demurrer with regard to counts eight and nine of the complaint.”
The father argues that a court cannot “stay a pending matter ‘simply because a topically-related matter is on appeal’ and, in any event, that the majority of his claims ‘were not related to’ the matter at issue in Padula-Wilson. …
“Contrary to the father’s argument, one recognized basis for staying a suit at the trial level is to await the outcome of an appeal in a case involving different parties if resolution of the pending suit is likely to control or simplify the stayed suit. …
“Padula-Wilson did, in fact, provide significant guidance for the circuit court in resolving the demurrer’s challenges to at least five of the six relevant counts of the complaint.”
Qiu v. Huang, et al., Record No. 0459-22-4, April 18, 2023. CAV (published opinion) (Decker). From the Circuit Court of Fairfax County (Devine, final order; Gardiner, stay order; Oblon, orders sustaining demurrer and dismissal) Jacqueline A. Kramer for appellant. Bernard J. DiMuro; James R. Hart; Max F. Maccoby Jonathan R. Mook; Robert F. Horan, III; for appellees. VLW 023-7-141, 19 pp.