Elmore et al v. Mansfield et al

Filing 251

SUPPLEMENTAL ORDER ON ARNOTT'S MOTION TO DISMISS 18 . Signed on 2/12/13 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JOHN P. ELMORE, et. al.,
Plaintiffs,
v.
CONNIE MANSFIELD, et. al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 3:11-cv-5088-DGK

SUPPLEMENTAL ORDER ON ARNOTT’S MOTION TO DISMISS
This case arises from allegations that Defendant Joanna Arnott (“Arnott”) and the other
Defendants made false sexual abuse claims against Plaintiff John Elmore (“Elmore”) in order to
remove his daughters, Plaintiffs S.L.E and R.J.E., from his custody. Plaintiffs allege that as a
result of Defendants’ actions, the children were taken from Elmore and subjected to traumatic
and humiliating gynecological examinations. Plaintiffs have brought sixteen claims for relief
under 42 U.S.C. § 1983 and Missouri state law.
Now before the Court is Defendant Joanna Arnott’s Motion to Dismiss Plaintiff’s
Complaint (Doc. 18) and the parties’ supplemental briefing concerning Plaintiffs claim for
tortious interference with parental rights. 1 Arnott moved to dismiss this claim, arguing that
although Missouri still recognizes the tort, this case is not one of those rare cases where the level
of parental interference rises to the level of a tort. Arnott contends Missouri courts would limit
the cause of action to those cases where the interference with the parental right was substantial in
duration and effect, and any interference here was not substantial.
The Court took this argument under advisement and ordered supplemental briefing from
the parties addressing two questions: (1) whether Missouri law limits, or would limit, any claim

1

This claim is Count V in the original complaint, Count X in Plaintiffs' Second Amended Complaint.

for tortious interference with parental rights to those cases where the interference was substantial
in duration and effect; and (2) if so, whether the interference alleged here is actionable.
After reviewing the parties’ briefs and the applicable caselaw, the Court observes that
while Missouri still recognizes this tort in the sense that it has not formally abolished it, it is
disfavored. Politte v. Politte, 727 S.W.2d 198, 200 (Mo. Ct. App. 1987) (“Furthermore, and,
perhaps most important, we question the need of recognizing the tort claim [of tortious
interference with parental rights].”). The trend in Missouri law is to restrict the availability of
this tort, if not abolish it. See id. at 201 (noting that continued recognition of the tort is not in the
best interests of the child, and the tort is unnecessary because other remedies exist to bring
economic pressure against a parent to return an abducted child). Accordingly, the Court holds
that at the very least a Missouri court would restrict a claim for tortious interference with
parental right to situations where the non-custodial parent’s interference with the custodial
parent’s right to custody is substantial in duration and effect.
Applying this standard here, the Court holds the allegations in the Second Amended
Complaint (“the Complaint”) are barely sufficient to survive a motion to dismiss. When read as
a whole, the Complaint alleges that on one occasion Arnott prevented the children from returning
to their father by physically restricting their movements, and on another occasion conspired with
others to have a highway patrolman take the children from their father’s house. It is a closer call
whether this interference was for a substantial amount of time. The Complaint is unclear about
how long the children were separated from their father. Arnott contends it was only two days
and that this is not enough to state a cause of action, but she has not cited any authority or
explanation to support this position.

2

The Court holds that given the state of the existing record, this question is better
addressed at the summary judgment stage of the litigation or on a motion for directed verdict, not
on a motion to dismiss. Accordingly, this portion of Arnott’s motion to dismiss is denied.
IT IS SO ORDERED.
Dated: February 12, 2012

/s/ Greg Kays
GREG KAYS,
UNITED STATES DISTRICT JUDGE

3