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     KENNETH G. LLOYD, Plaintiff-Appellee, v.  IRMA LOEFFLER and
                 ALVIN F. LOEFFLER, Defendants-Appellants.
                                  No. 82-1824
             UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
                                  694 F.2d 489
                           ARGUED OCTOBER 5, 1982
                               November 30, 1982

PRIOR HISTORY: Appeal from the United States District Court for the
Eastern District of Wisconsin.

   No. 80 C 560 -- John W. Reynolds, Judge.

COUNSEL: Mark J. Rogers, 625 N. Milwaukee St., Ste. 400, Milwaukee,
WI 53202, for Plaintiff

   Carole S. Gailor, 3708 Williamsborough Court, Raleigh, North
Carolina 27609, for Defendant

OPINIONBY: POSNER

OPINION:   [*490]

   Before PELL, ESCHBACH, and POSNER, Circuit Judges.

   POSNER, Circuit Judge.  This is an appeal from a judgment in
favor of the plaintiff in a diversity suit for tortious inference
with the custody of a child.  The child, Carol Lloyd, was born in
1978, in Washington, D.C., to Kenneth Lloyd, the plaintiff below
and the appellee in this court, and Bonnie Loeffler, now Bonnie
McMahan, who was named as a defendant but, for reasons that will
appear, is not an appellant.  Kenneth and Bonnie have never been
married. In 1979 a Maryland state court awarded custody of Carol in
a contested proceeding but gave visitation rights to Bonnie who by
then was married to Earl McMahan, also a defendant below but not an
appellant in this court.

   On July 20, 1979, the McMahans, ostensibly in the exercise of
Bonnie's summer visitation rights, picked up Carol from Kenneth
Lloyd's babysitter in Virginia (where Lloyd lived) to take her to
Wisconsin to visit Bonnie's parents, the Loefflers, who were
defendants below and are the appellants here.  The McMahans were to
return Carol to her father in Virginia on August 5, but when they
arrived at the Loefflers' house they told the Loefflers they would
never return the child to her father -- and they never have.  Apart
from brief clandestine visits by the McMahans and Carol to the
Loefflers' house in November 1979 and April 1980, the whereabouts
of the three of them have been and are unknown. Kenneth Lloyd got
a contempt judgment against Bonnie, and arrest warrants, from the
Maryland state court that had issued the custody decree, and he has
spent thousands of dollars on private detectives to locate the
McMahans and Carol, but all to no avail.
    PAGE   99                                694 F.2d 489, *490
                     LEXSEE

   In June 1980 Kenneth Lloyd brought this suit in a Wisconsin
federal district court against the McMahans and the Loefflers.
Lloyd is a citizen of Virginia and the Loefflers citizens of
Wisconsin, but the domicile of the Mcmahans is uncertain; if it is
Virginia, the "complete" diversity of citizenship required for
jurisdiction under 28 U.S.C.  @ 1332, see Strawbridge v. Curtiss,
7 U.S. (3 Cranch) 267 (1806), would be lacking.  Until their
abduction of Carol the McMahans were citizens of Maryland.  Lloyd
believes they are now living in Wisconsin because the Loefflers
have received some correspondence from the McMahans postmarked
Milwaukee.

   We have found no case involving the question of the domicile for
diversity purposes of a fugitive from justice.  It seems absurd to
hold that since a fugitive might be domiciled anywhere or maybe
even nowhere (cf. Pannill v. Roanoke Times Co., 252 Fed. 910,
913-35 (W.D. Va. 1918)), the act of becoming a fugitive puts a
person beyond the jurisdiction of the federal courts.  Probably the
last domicile of the fugitive before he fled should be his domicile
for diversity purposes.  Cf. Gregg v. Louisiana Power & Light Co.,
626 F.2d 1315 (5th Cir. 1980). That would be Maryland in this case,
and would not destroy diversity.  This is a simple rule, and avoids
rewarding the fugitive for his elusiveness.  But in any event the
probability that the McMahans were citizens of Virginia when this
suit was filed is too slight to make us worry that there may not in
fact be complete diversity.    [*491]

   After a bench trial, the district court found that the McMahans
and the Loefflers had committed a tort under the common law of
Wisconsin by interfering with Kenneth Lloyd's custody of Carol.
The Loefflers' liability was based on conspiracy.  Aware at all
times of the custody decree and of the fact that the McMahans were
in contempt of it, the Loefflers helped the McMahans conceal the
child's whereabouts from Kenneth.  Among other things they let the
McMahans give the Loefflers' address to the federal government,
which owed the McMahans (former federal employees) refunds of their
retirement contributions; and when the money arrived the Loefflers
forwarded it to the McMahans without revealing the McMahans'
whereabouts to Kenneth.  The Loefflers testified that they tried to
persuade the McMahans to return the child to Kenneth, but the
district court found their testimony unconvincing and instead
credited testimony that Mrs. Loeffler had told a detective: "just
tell that son-of-a-bitch that he will never see that child again."
Mrs. Loeffler admitted that she thought Kenneth "physically
incapable of taking care of this child."

   The district court awarded Kenneth $70,000 in compensatory
damages for which all the defendants were to be jointly and
severally liable and $25,000 in punitive damages for which the
McMahans were alone to be liable because of their greaterculpability.  The judgment provides that the award of punitive
damages is to grow by $2,000 every month until Carol is returned to
her father's lawful custody.  The McMahans entered no appearance in
the district court or this court.

   Before reaching the merits we must decide whether this suit is
within the exception to the diversity jurisdiction for domestic
relations matters, including disputes over who should have custody
of a child.  Recently two circuits have held that tort suits for
interference with custody are not within the exception.  See
Wasserman v. Wasserman, 671 F.2d 832 (4th Cir. 1982); Bennett v.
Bennett, 682 F.2d 1039 (D.C. Cir. 1982). A third has upheld a
damage award in such a case without discussing jurisdiction.  See
Fenslage v. Daukins, 629 F.2d 1107 (5th Cir. 1980). But it is a
question of first impression in
    PAGE  100                                694 F.2d 489, *491
                     LEXSEE

this circuit, though Daily v. Parker, 152 F.2d 174 (7th Cir. 1945),
could be likened to Fenslage.  The short but perhaps incomplete
answer to the question is that such cases do not involve an actual
dispute over custody.  The McMahans have not challenged the decree
of the Maryland court awarding custody of Carol to Kenneth Lloyd;
they have defied it.  This answer would be conclusive if the
McMahans and the Loefflers were strangers who had kidnapped Carol.
But because Bonnie McMahan is Carol's mother and the Loefflers her
maternal grandparents the abduction is in a sense a continuation of
the custody fight that the Maryland court thought it had resolved
when it awarded custody to Kenneth and visitation rights to Bonnie.
Cf. 18 U.S.C.  @ 1201(a) (the exception in the federal kidnapping
statute for the kidnapping of a minor by a parent).

   The usual account of the domestic relations exception, as of the
probate exception discussed recently in Dragan v. Miller, 679 F.2d
712 (7th Cir. 1982), is a historical one.  The first judiciary act
gave the federal courts diversity jurisdiction of "all suits of a
civil nature at common law or in equity," Judiciary Act of 1789,
ch. 20, @ 11, 1 Stat. 78 (simplified in the present diversity
statute, but without change of meaning, see Reviser's Note to 28
U.S.C.  @ 1332 (1976), to "all civil actions," 28 U.S.C.  @
1332(a)); and divorce, custody, and related matters were in England
the province of the ecclesiastical courts (on which see 3
Blackstone, Commentaries on the Laws of England 87-103 (1768))
rather than of the common law and equity courts.  The historical
account is unconvincing.  See Spindel v. Spindel, 283 F. Supp. 797,
802-03, 806-09 (E.D.N.Y. 1968). It exaggerates the nicety with
which the jurisdictional distinctions among the English courts were
observed.  Applied to this case, it overlooks the extensive custody
jurisdiction of the Court of Wards and Liveries, a royal court
distinct from the ecclesiastical .  See Bell, An Introduction to
the History and Records of the Court of   [*492]   Wards & Liveries
112-32 (1953).  And it assumes without discussion that the proper
referent is English rather than American practice, though if only
because there was no ecclesiastical court in America American law
and equity courts had a broader jurisdiction in family-law matters
than their English counterparts had. Probably the reference to law
and equity in the first judiciary act is mainly to English practice
rather than to the diverse judicial systems of the colonies and
states; but it would be odd if the jurisdiction of England's
ecclesiastical courts, theocratic institutions unlikely to be well
regarded in America, should have been thought to define the limits
of the jurisdiction of the new federal courts.

   The historical account would be of little assistance in this
case even if it were sound.  The tort of wrongful interference with
a child's custody did not exist at the time the first judiciary act
was passed, and it would strain our historical imagination to the
breaking point to try to determine whether, had there been such atort then in England, it would have been within the exclusivie
jurisdiction of the ecclesiastical courts.

   However dubious its historical pedigree, the domestic relations
exception is too well established to be questioned any longer by a
lower court.  See e.g., Phillips, Nizer, Benjamin, Krim & Ballon v.
Rosenstiel, 490 F.2d 509, 512-14 (2d Cir. 1973); Solomon v.
Solomon, 516 F.2d 1018, 1021-26 (3d Cir. 1975). This is so even
though one might question, see Dragan, supra, 679 F.2d at 713, the
suggestion in Rosenstiel, supra, 490 F.2d at 514, that a century of
congressional silence constitutes legislative adoption of what was
originally, and maybe still is today, a purely judge-made exception
to the diversity jurisdiction.  The boundaries of the exception are
uncertain, however; and to
    PAGE  101                                694 F.2d 489, *492
                     LEXSEE

fix them we must consider what contemporary function the exception
might be thought to serve.

   At its core are certain types of case, well illustrated by
divorce, that the federal courts are not, as a matter of fact,
competent tribunals to handle.  The typical divorce decree provides
for alimony payable in installments until the wife remarries, and
if there are children it will provide for custody, visitation
rights, and child support payments as well.These remedies --
alimony, custody, visitation, and child support -- often entail
continuing judicial supervision of a volatile family situation.
The federal courts are not well suited to this task.  They are not
local institutions, they do not have staffs of social workers and
there is too little commonality between family law adjudication and
the normal responsibilities of the federal judges to give them the
experience they would need to be able to resolve domestic disputes
with skill and sensitivity.

   The present case, a tort suit that does not -- not overtly
anyway -- seek one of the distinctive remedies provided by family
courts, is not within the core of the domestic relations exception
as we have described it.  But there is also a periphery to be
considered.When a case must begin in state court, as a divorce or
custody case must, retention of any ancillary litigation in the
same court is supported by considerations of judicial economy, and
also by considerations of relative expertness since the issues in
an ancillary proceeding may be the same as those in cases that are
within the core of the domestic relations exception and hence
within the exclusive jurisdiction of the state courts.  Cf. Dragan,
supra, 679 F.2d at 714-15. In this vein, Judge Friendly suggested
in Rosenstiel that if the plaintiff had been seeking attorney's
fees for work performed in connection with his client's divorce
action the federal court should have declined jurisdiction.  See
490 F.2d at 515.

   The concept of ancillarity may explain decisions which hold that
actions to enforce an alimony or custody decree are outside the
diversity jurisdiction if the decree remains subject to
modification by the court that entered it, see Morris v. Morris,
273 F.2d 678, 681-82 (7th Cir. 1960); Hernstadt v. Hernstadt, 373
F.2d 316 (2d Cir. 1967); Sutter v. Pitts, 639 F.2d 842 (1st Cir.
1981), though it is true that in such cases the risk of
inconsistent state and federal decrees is substantial and presents
an even stronger reason than judicial economy for federal   [*493]
 abstention.  At the other extreme is Crouch v. Crouch, 566 F.2d
486 (5th Cir. 1978), where the federal court was asked simply to
enforce the monetary provisions of a separation agreement between
persons long divorced.  There the connection with the original
matrimonial action was tenuous, the dange of inconsistent decrees
trivial.  Alimony decrees that have become final are sometimesenforced in diversity cases on similar grounds.  See 13 Wright,
Miller & Cooper, Federal Practice and Procedure @ 3609 at pp.
673-74 (1975).  But Rosenstiel suggests, sensibly in our view, that
the question is not only whether the exercise of federal
jurisdiction will create a potential for inconsistent decrees but
also whether it will result in piecemeal, duplicative, or inexpert
handling of what is substantially a single controversy.

   On this analysis, if under Maryland law a tort action arising
out of a custody decree had to be tried in a proceeding ancillary
to the custody proceeding, this would be a strong argument against
federal jurisdiction.  Cf. Dragon, supra, 679 F.2d at 716. But
though we have found no Maryland case dealing with the tort of
wrongful interference with custody, it is clear that such a case if
it arose would be litigated as an independent civil action and
    PAGE  102                                694 F.2d 489, *493
                     LEXSEE

not as an appendix to the custody proceeding, which is strictly
equitable.  See Md. Code @ 3-602(a), as interpreted in Kapneck v.
Kapneck, 31 Md.App. 410, 356 A.2d 572 (1976).In addition, of
course, a Maryland court might not be able to obtain personal
jurisdiction over the Loefflers, even though the new federal
Parenteral Kidnapping Prevention Act of 1980, codified at 18 U.S.C.
@ 1073, 28 U.S.C.  @ 1738A, and 42 U.S.C.  @ 663, makes it easier
for states to enforce their state custody decrees against parental
abductors who cross state lines. Incidentally, by declining to
create federal judicial remedies for parental abductions, the Act
confirms the primacy of the states in custody matters.  But it
cannot we think be read to express a federal policy against the
exercise of federal jurisdiction in a case such as this if the
ordinary requirements of diversity jurisdiction are satisfied.

   There is thus no issue of judicial economy here.  The choice is
not between one Maryland action and two actions -- the custody
action in Maryland and a tort action in a state or federal court in
Wisconsin -- but between a tort action in a Wisconsin state court
and this suit in a federal district court in Wisconsin. And since
the Loefflers do not contest the validity of the Maryland custody
decree, the tort issues in this case are not entangled with issues
that only state courts are competent to resolve.  The federal court
is being asked to decide not who should have custody over Carol but
only whether the McMahans and the Loefflers have violated or (in
the case of the Loefflers) conspired to violate the custody decree
by taking Carol away from her father, and if so what damages he has
suffered.  The resolution of these issues requires no special
experience with the business of domestic relations courts; the
requisite empathy, if any is required, is possessed by any parent.
Finally, this is not a case like Rosenstiel where the plaintiff's
invocation of the diversity jurisdiction has no basis in the
concern with predudice to out-of-state litigants that underlies
that jurisdiction.  The plaintiff is not a resident of Wisconsin,
where the case was tried; the Loefflers, the only appearing
defendants, are Wisconsin residents.

   One feature of the decree, though, raises a serious question
under the domestic relations exception: the provision that makes
the award of punitive damages against the McMahans grow by $2,000
a month until they restore Carol to Kenneth Lloyd's lawful custody.
That provision may not, strictly speaking, be before us since the
only people who could complain about it, the McMahans, are not
before us.  But to pass over it in silence might leave the
impression that there are no problems with the district court's
jurisdiction to issue such a decree, and there are; and as they may
affect a child's welfare we shall discuss them.

   In a case of continuing tort a variable award of punitive
damages, though unprecedented so far as we are able to determine  [*494]   and seemingly not contemplated by the Federal Rules of
Civil Procedure, see Rule 58, is perfectly logical; the enormity of
the wrong that the McMahans have committed against Kenneth Lloyd
grows with every day that they fail to return Carol to his custody.
But the variable award is also the practical equivalent of an
injunction ordering the McMahans to return Carol.  It is as if the
district court had issued an injunction, the McMahans had disobeyed
it, and the court had then found them in civil contempt of its
decree and ordered them to pay the plaintiff $2,000 a month until
they complied.  Of course there was no injunction and no finding of
contempt and perhaps that is reason enough to doubt the propriety
of the relief.  But in any event it would seem that, before
entering the kind of judgment it did, the district court should
have considered whether
    PAGE  103                                694 F.2d 489, *494
                     LEXSEE

it had the power to enjoin the McMahans directly.  Circuit in
Bennett v. Bennett, supra. The court allowed the plaintiff in a
tortious interference with custody suit to obtain damages but held
that the grant of an injunction directing that the child be
returned to the plaintiff was barred by the domestic relations
exception to the diversity jurisdiction.  The court was concerned
that enforcing such an injunction would be the equivalent of
issuing a custody decree.  The basis of its concern is illustrated
by the facts of the present case.  It is three years since Carol
was abducted.  She is now four and a half years old.  She probably
does not remember her father.  No matter how egregiously the
McMahans have behaved, it might be a terrible thing today to wrench
Carol from their custody and return her to her father -- and all
the more terrible at some hypothetical future date when the
McMahans, finally intimidated by the mounting costs of their
contumacy, as the district court intended they be intimidated,
surrender Carol.  The district court can try to compensate Kenneth
Lloyd for his loss.  But to put pressure on the McMahans to return
the child, by means of escalating damage award bearing no necessary
relationship to Kenneth's loss, is implicitly to answer the
question who should have custody of Carol today.  True, the
escalating damage award is contingent on Kenneth's retaining lawful
custody of Carol, os it is open to the McMahans to go back to the
Maryland court and ask for a modification of the decree in light of
changed circumstances -- the growing attachment, as we may assume,
of Carol to her mother and her mother's husband.  But this would be
a costly option for the McMahans to pursue; every month that passed
while the Maryland court was deciding whether to modify the decree
would cost them another $2,000.

   Against all this it may be said that so long as Kenneth is free
to bring fresh suits against the Loefflers and the McMahans for
damages incurred by him after the date of the judgment below, the
same financial pressure will be brought to bear on the McMahans to
return the child regardless of what is best for her.  But it will
not be quite the same.  We do not know whether Kenneth will bring
another suit, or if he does whether he will be able to prove
substantial damages beyond what he has laready incurred.  If there
is another suit, we do not know whether the McMahans will again be
joined as defendants along with the Loefflers, and if they are
whether Kenneth will try to collect any part of the judgment from
the McMahans, assuming that they and the Loefflers are held to be
jointly and severally liable for the judgment as they were for the
compensatory damages awarded in this case.  So there is a
difference, and though it is one of degree rather than of kind it
is sufficient in our judgment to raise a substantial question
whether the escalating punitive damage award in the district
court's decree was within the court's subject-matter jurisdiction.
As no party to this appeal is challenging this portion of the
decree we doubt that we have the power to vacate it, but we shouldnot like our affirmance of the judgment to be interpreted as
approval of the decree in its entirety. [*495]

   Still another threshold issue in this case is choice of law.
The court below held that the applicable substative law was that of
Wisconsin.  The only basis it gave for this conclusion was a
citation to Erie R.R. v. Tompkins, 304 U.S. 64 (1938). But Erie did
not hold, as the district court's citation may seem to imply, that
in common law diversity cases the substantive law to be applied is
that of the state in which the case is tried.  On the contrary,
Klaxon v. Stentor Elc. Mfg. Co., 313 U.S. 487, 496-97 (1941),
deduced from Erie that the proper choice of law rule to apply in a
diversity suit is the rule of the forum state.  The district court
should have determined whether under Wisconsin conflict of laws
principle the substantive law applicable to this case is that
    PAGE  104                                694 F.2d 489, *495
                     LEXSEE

of Wisconsin or that of some other state, such as Maryland where
the custody decree was issued, or Virginia where Lloyd resides and
where the tort might be said to have occurred if the McMahans
formed the intent not to return Carol before they picked her up
from the babysitter.  There is no indication that the district
court made such a determination.

   In a supplementary brief the Loefflers argue that Maryland
rather than Wisconsin substantive law should be applied under
Wisconsin's choice of law rules.  But they did not raise this issue
in their main brief or even, it appears, in the district court.  At
the oral argument of this appeal both counsel stated that the
parties had stipulated in the district court that Wisconsin
substantive law applied to the case, and though we do not find a
written stipulation in the record we cannot see what difference it
makes whether it is written or oral.  So there is no conflict of
laws issue before us unless the issue goes to our subject-matter
jurisdiction.

   We hesitate to say that a conflicts question never can affect
jurisdiction. If the parties had stipulated that the substantive
law to be applied was the Code of Hammurabi, we think the district
court should have said it did not have the power to render a
decision on that basis.  Such a decision could not have any value
as precedent, and the production of precedents is a major function
of judicial decision-making.  Stipulations of law, as distinct from
fact, thwart that function; maybe that is why they have no binding
force.  See, e.g., Sanford's Estate v. Commissioner of Internal
Revenue, 308 U.S. 39, 51 (1939). But reasonable stipulations of
choice of law are honored in contract cases, see Weintraub,
Commentary on the Conflict of Laws 355-56 (2d ed. 1980), and we do
not see why the same principle should not apply in tort cases,
though the issue has not to our knowledge arisen in such a case.
There is no necessary inconsistency between this principle and case
like Sanford's Estate.  A court has an interest as we have said in
applying a body of law that is in force somewhere, but less
interest in which such body of law to apply.

   The stipulation of Wisconsin law was reasonable here -- indeed,
if the parties, rather than so stipulating, had not raised any
choice of law issue, and had litigated the case under Wisconsin
law, that would have been proper.  An implicit rule of Wisconsin
conflicts law is that in the absence of objection the substantive
law to be applied to a suit tried in a Wisconsin state court is
that of Wisconsin.  Central Soya Co. v. Epstein Fisheries, Inc.,
676 F.2d 939, 941 (7th Cir. 1982); cf. Electronic Associates, Inc.
v. Automatic Equipment Development Corp., 440 A.2d 249, 251 n. 3
(Conn. 1981). Klaxon makes this rule equally applicable to suits
brought in federal court in Wisconsin under the diversity
jurisdiction.  Central Soya Co., supra, 676 F.2d at 941.   We arrive finally at the merits, where the principal issue is
whether Wisconsin recognizes the tort of wrongful interference with
a child's custody --more precisely, whether it would recognize it
if the question arose in a Wisconsin state court case, as it has
not yet done.  The appellants pitch their whole case that Wisconsin
would not recognize such a tort on In re Pierce, 44 Wis. 411
(1978). Pierce had been divorced from her husband, and custody of
their child had been awarded to him.  She abducted the   [*496]
child, was imprisoned for contempt of the decree, and petitioned
for habeas corpus.The court believed that she could not properly be
adjudged in contempt unless her conduct had caused "a loss or
injury which would entitle the injured party [her husband] to
maintain an action against the offender to recover damages for his
misconduct," id.  at 424, and the court thought her husband could
not maintain
    PAGE  105                                694 F.2d 489, *496
                     LEXSEE

such an action because a father's status under a divorce and
custody decree "is not that of father and child, nor yet that of
master and servant.  It is more nearly like that of guardian of the
person and ward.  In that relation the guardian is not entitled to
the services of the ward." Id.  at 425. Portions of In re Pierce
have been overruled, see Emerson v. Huss, 127 Wis. 215, 226, 106
N.W. 518, 522 (1906); Larson v. State ex rel. Bennett, 221 Wis.
188, 194, 266 N.W. 170, 173 (1936), but not the analysis of the
father's right to maintain a damage action for the abduction of a
child.

   Nevertheless, we are pretty confident it would not be followed
today.  The analysis assumes that a parent can complain about a
child's being disabled (or what amounts to the same thing,
abducted) only if the parent has lost money in the quite literal
sense that the child's earnings, which at common law belong to the
parents during the child's minority, are impaired.  That was the
common law rule when In re Pierce was decided.  See, e.g., Callies
v. Reliance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198, 200
(1925). Since a father who had custody under a divorce decree had
no right to the child's earnings -- unlike a married parent but
like a guardian -- he had not basis for maintaining a damage action
against the abductor.  This is the entire premise of In re Pierce
so far as is relevant to this case and it was destroyed in 1975
when the Supreme Court of Wisconsin, in Shockley v. Prier, 66 Wis.
2d 394, 225 N.W.2d 495 (1975), overruled Callies and held that
parents are entitled to recover damages for loss of the
companionship of a minor child who has been injured by someone's
negligence.  The fact that as in Pierce there is no pecuniary loss
is now irrelevant under Wisconsin law.

   Pierce is therefore no obstacle to Wisconsin's recognizing a
tort of wrongful interference with a child's custody; and Shockley
fairly requires such recognition, for it can make no logical or
practical difference, so far as a parent's action for loss of
companionship is concerned, whether the child is physically injured
by a third party's negligence or abducted by the third party. At
least this is clear where the abductor is a stranger rather than,
as is more common, a relative.  Although these two cases are not
identical, those states that recognize a tort of wrongful
interefence with custody make no distinction based on the
relationship between the abductor and the child, provided of course
that the abductor does not have lawful custody of the child.  See,
e.g., McBride b. Magnuson, 282 Ore. 433, 578 P.2d 1259 (1978);
Kipper v. Vokolek, 546 S.W.2d 521 (Mo. App. 1977); Restatement of
Torts (Second) @ 700 (1981).As no other state had made such a
distinction we think it unlikely that Wisconsin would. The only
question therefore is whether it would draw the line at physical
injury and refuse to recognize any tort liability for abduction
even though the effect on the parent's interest in thecompanionship of the child is the same. This would be an arbitrary
distinction, and we doubt very much that Wisconsin would make it.
We know of no state that, having swallowed the camel of allowing
parents to sue for intangible loss of companionship as well as
pecuniary loss, has strained at the gnat of allowing that loss to
be recovered when it is caused by abduction rather than by physical
injury.  Moreover, since abductions are always deliberate and
physical injuries usually, as in Shockley, merely negligent, it
would be anomalous to allow liability only in the latter case.
Consistenly with this distinction, California allows it only in the
former.  See Baxter v. Superior Ct. of Los Angeles City., 19 Cal.3d
461, 466 and n.3, 563 P.2d 871, 874 and n. 3 (1977).

   The Loefflers argue, finally, that even if Wisconsin would
recognize a tort of wrongful interference with a child's custody,
 [*497]   their role in the
    PAGE  106                                694 F.2d 489, *497
                     LEXSEE

abduction by the McMahans was too small to make them guilty of
conspiracy.  This argument raises only an evidentiary issue, which
the district court resolved against them, and we cannot say that
its finding was clearly erroneous.  Without the active cooperation
of the Loefflers the McMahans would have found it much more
expensive to conceal Carol's whereabouts, as the McMahans would
have been afraid to give their address to any creditor lest Kenneth
Lloyd's detectives get hold of it and track them down.  The
Loefflers, fully aware of, and we may infer from the "son of a
bitch" remark sharing, the McMahans' purpose of concealing Carol,
provided them with a discreet mail drop and other assistance.

   It is true, as we observed in a recent case, that conspiracy has
a somewhat anomalous status under tort law, since a tort, to be
actionable, requires that an injury actually be suffered, while
conspiracies are no less unlawful for being nipped in the bud.  See
Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.1982).
But that observation has no relevance where the conspiracy achieves
its object, as it did here.  The purpose of the conspiracy concept
in such a case is not to punish merely preparatory conduct -- a
more suitable function for criminal law than for tort law -- but to
identify the tortfeasors. By helping the McMahans conceal Carol the
Loefflers became joint tortfeasors in the original sense of the
term. See, e.g., Brown v. Brown, 338 Mich. 492, 503-04, 61 N.W.2d
656, 661-62 (1953); Prosser, Handbook of the Law of Torts 291 (4th
ed. 1971).

   AFFIRMED.