* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 1/24/97 FOR THE TENTH CIRCUIT

IN RE: MARSHA MCQUARRIE LANG, Debtor.

ROBERT F. LANG, M.D.,

Appellant,

v. MARSHA MCQUARRIE LANG,

Appellee. No. 95-4198 (D.C. No. 95-CV-370) (D. Utah)

ORDER AND JUDGMENT *

Before PORFILIO, BALDOCK, and HENRY, Circuit Judges

.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. This case arises from an adversary proceeding broug ht in defendant Marsha Lang’s bankruptcy. Plaintiff Robert Lang and defen dant were divorced in 1980, after eleven years of marriage. During their marri age, defendant gave birth to two children. The divorce decree ordered plaintiff to pay child support, which he did for many years. In December of 1991, defendant rev ealed to plaintiff that the children were not his, but were fathered by a man w ith whom defendant had an ongoing extramarital affair. Plaintiff brought an action in state court against defendant for injuries alleged as a result of defen dant’s conduct. Defendant filed for bankruptcy, seeking discharge of debts, includi ng any judgment which might be entered against her in the action brought by pla intiff. Plaintiff then filed an adversary proceeding in the bankruptcy action, seek ing judgment on his claims of fraud and intentional and malicious infliction of e motional distress, as well as a determination of nondischargeability on those claim s. Partial summary judgment was entered for plaintiff, to the effect that he is not the biological father of the two children born during his marriage.1 Defendant has not filed a brief in this appeal. -3- The bankruptcy court conducted a bench trial and, a cting as fact finder, found that defendant deceived plaintiff regarding t he paternity of the children and that plaintiff relied on the false representations to the extent he cared for and supported the children. The court went on to find that the specific purpose of defendant’s actions was not to harm plaintiff, and that plaintiff suffered no damage or detriment and there was, therefore, no ac tion in fraud. Reiterating its finding that defendant did not intend to harm plain tiff, the court found no malicious or intentional infliction of emotional di stress. Because the court found for defendant on plaintiff’s claims, it also found that there was no cause of action under 11 U.S.C. §§ 523(a)(2)(A), 523(a)(4), and 523 (a)(6) for nondischargeability. The district court affirmed the bankruptcy court’s decision, reviewing the legal questions de novo and the factual findings fo r clear error. We also review the bankruptcy court’s factual findings for clear e rror and its legal determinations de novo, see Phillips v. White (In re White) , 25 F.3d 931, 933 (10th Cir. 1994), and we affirm in part and reverse and remand in part. 1 The bankruptcy court, sitting as fact finder, speci fically found that defendant had no intent to harm plaintiff, but thather actions were, instead, “to satisfy her own foolish emotional desires.” Appell ant’s App. at 320. The2 Although it affirmed the bankruptcy court decision, the district court did

not specifically address the intentional infliction of emotional distress claim or the bankruptcy court findings relating thereto. -4- bankruptcy court heard and observed all the testimo ny, and, like the district court, we cannot say it clearly erred in this finding. Sp ecific intent is a necessary element of intentional infliction of emotional dist ress. See Jackson v. Brown , 904 P.2d 685, 687 (Utah 1995). We, therefore, affirm t he bankruptcy court’s finding that plaintiff has no cause of action for intention al or malicious infliction of emotional distress and, therefore, no action under 11 U.S.C. § 523(a)(6). 2 We are troubled, however, with both the district an d bankruptcy courts’ treatment of the fraud claim. First, the bankruptc y court’s oral ruling is less than clear as to which element of fraud it found lacking . The court found that defendant deceived plaintiff by representing to him that he was the father of the children and that defendant relied on her represent ation. The court then found that defendant’s misrepresentation was not for the purpose of harming plaintiff and that plaintiff suffered no damage or detriment because of the misrepresentation. The district court relied on th e bankruptcy court’s finding of no specific intent to harm in affirming the finding of lack of fraud. Reliance on this finding in the fraud context is error. Intentto harm is not an element of fraud. See Masters v. Worsley , 777 P.2d 499, 501-02 (Utah Ct. App. 1989) (holding that necessary elements of fraud are a fal se representation concerning a-5-

presently existing material fact, which the represe ntor either knew to be false or made recklessly without sufficient knowledge, or om ission of a material fact when there was a duty to disclose, for the purpose of inducing action, with actual, justifiable reliance, resulting in damage). The bankruptcy court also found that plaintiff suff ered no damage or detriment as a result of his reliance on defendant’ s misrepresentation. In making this finding, the court focused on plaintiff’s test imony that he has always loved and supported the children and that he will continu e to do so. The court spoke of the positive qualities of the son and of the fact t hat plaintiff’s life has been enriched by the birth of the children. The bankrup tcy court stated:

I believe the claim for monetary damages is inconsi stent with [channeling energy toward the children instead of attempting to punish defendant]. Bob claims to be damaged in the dollar amount of all support heretofore given and to be given in the future for both children, together with interest on the money he sp ent. If I am to believe that Bob truly loves and cares for these ch ildren, this is a shameful request. I find that Bob has suffered no monetary damage as a result of the fraud and deceit of Marsha. Appellant’s App. at 321. The district court reiter ated the bankruptcy court’s findings regarding the relationship between plainti ff and the children in its affirmance of the finding of lack of injury. To focus on the dynamics of the relationship betwee n plaintiff and the children in the context of damages confuses the iss ue. Whether or not plaintiff was damaged by his reliance on the false representation made by defendant has-6-

nothing whatsoever to do with his relationship withthe children. His contention is that, as a result of his reliance on defendant’s false representation regarding the paternity of the children, he has been obligated to pay large sums of money for support that he would not have otherwise had to pay , had he known he was not the children’s biological father. The fact that plaint iff loves the children and that his life may have been enriched by their birth does notvitiate the monetary detriment he has incurred as a result of defendant’s false re presentation. The bankruptcy court’s finding that plaintiff suffered no damage o r detriment as a result of his reliance on defendant’s false representation becaus e he has good children with whom he has a close relationship and who have enric hed his life is clearly

erroneous. The bankruptcy court made no mention in its disposi tion of Masters v. Worsley , 777 P.2d 499 (Utah Ct. App. 1989), a Utah case wh ich appears particularly relevant. However, the district courtreferred to Masters and holds that Masters did not control this case because the bankruptcy c ourt did not find that defendant made a false representation during t he divorce proceedings. It went on to hold that testimony of plaintiff’s divor ce counsel as to a statement made by defendant in a divorce deposition that she had never engaged in any extramarital affairs was inadmissible. The bankrup tcy court made no mention of3 We also note that defendant did not object to the t estimony at trial, thus

depriving the bankruptcy court of the opportunity t o rule on its admissibility. See United States v. Mitchell , 613 F.2d 779, 782 (10th Cir. 1980). -7- the divorce counsel’s testimony, and we have no way of knowing whether the court considered the evidence in its ruling or not. The district court’s holding regarding the admissib ility of the divorce counsel’s testimony of his recollection of the depo sition is in error. The district court held that the testimony was inadmissible hear say and in violation of Fed. R. Evid. 1002, the best evidence rule, because neitherthe written transcript of the deposition nor the divorce counsel’s notes were pro duced. The testimony of what defendant allegedly said during her deposition is n ot hearsay because it is an admission by a party-opponent. See Fed. R. Evid. 801(d)(2). Further, the testimony does not run afoul of Rule 1002 because i t was not offered to prove the contents of a writing. See Fed. R. Evid. 1002 advisory committee notes (“Thus an event may be proved by nondocumentary evidence, eve n though a written record of it was made.”). 3 The fraud claim must go back to the bankruptcy court so that it can reconsider the evidence in light of the elements of fraud. In addition, the court should consider the testimony of plaintiff’s divorc e counsel regarding defendant’s false representation in her deposition taken in the divorce proceeding in its-8-

evaluation of the fraud claim. Finally, the bankruptcy court should consider the applicability of Masters , 777 P.2d 499. In sum, we AFFIRM the district court judgment to th e extent it affirms the bankruptcy court’s finding that plaintiff has no ac tion for intentional or malicious infliction of emotional distress. We REVERSE the d istrict court’s holding as to the admissibility of the divorce counsel’s testimony, as well as its affirmance of the bankruptcy court’s finding that plaintiff has n o action for fraud. We REMAND to the district court with instructions thatit remand to the bankruptcy court for consideration of the applicability of Mas ters , 777 P.2d 499, and for further consideration in light of our reversal of t he district court’s holding as to the admissibility of the divorce counsel’s testimony.

Entered for the Court

Bobby R. Baldock Circuit Judge