ALIENATION OF AFFECTION: A DISH BEST SERVED COLD

February 12, 2013 § 3 Comments

Alienation of affection survives the Mississippi legislature yet again, per Randy Wallace.

Here’s Philip Thomas’s take.

In the 21st century, what is the justification for continuing this cause of action in effect? Don’t the equitable distribution principles take care of this? Doesn’t the tort simply add a distorting feature to the equitable distribution arrangement?

Our family law has been evolving away from the nineteenth-century retribution-based model to today’s equitable relief, based on valuations and equities. This tort just does not fit.

Maybe some day all of our marital-dissolution law, including associated tort law, will move into the 21st century (hopefully before the 22nd century).

MINIMUM CONTACTS FOR ALIENATION OF AFFECTION

February 9, 2011 § 4 Comments

Kristina and her husband Eric lived in Long Beach, Mississippi.  Kristina commuted to work in Louisiana, where she began having a sexual relationship with William, a co-worker.  All physical contact between Kristina and William occurred exclusively in Louisiana.

When they were apart, Kristina and William pursued their mutual infatuation via e-mail, cell phone and text messages.  Many of the electronic communications were sent and received by Kristina while she was physically located in Mississippi.

Eric discovered the relationship and asked William to leave his wife alone.  William persisted.  Eventually Eric and Kristina were divorced and Kristina moved to Louisiana and married William.

Eric sued William in the County Court of Harrison County, Mississippi, for alienation of affection, alleging that his damages occurred in Mississippi, and that Kristina had sent and received communications while she was in the state.

William moved unsuccessfully to dismiss for lack of personal jurisdiction and took an interlocutory appeal to the supreme court.

In the case of Knight v. Woodfield, decided January 6, 2011, the Mississippi Supreme Court found that the phone calls, text messages and e-mails were sufficient “minimum contacts” with Mississippi to confer personal jurisdiction.  The court cited International Shoe Company v. Washington, 326 US 310, 316 (1945), which states that “A defendant has ‘minimum contacts’ with a state if the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activties.”

The court also found that allowing the suit to go forward in Mississippi would not offend traditional notions of fair play and substantial justice because Mississippi has an interest in providing a forum for its residents who are injured by nonresidents and for other reasons.  

The opinion, written by Justice Carlson, includes this language about the tort of alienation of affection:

Mississippi’s interest is enhanced because Louisiana does not recognize the tort of alienations, making Mississippi the only viable forum for Woodfield’s claims … the purpose of the tort of alienation of affections is the ‘protection of the love, society, companionship, and comfort that form the foundation of marriage …’ [citations omitted] Permitting claims for alienation of affections protects the marriage relationship and provides a remedy to those who have suffered loss of consortium as a result of the conduct of others …”

Justice Waller, joined by Chandler, dissented, disagreeing with the majority that the electronic communications constituted minimum contacts with Mississippi.

We’ve talked here before about the viability of alienation of affection as a cause of action.  From the language in this case, it appears that alienation is as viable as ever.

SHOULD WE RETHINK ALIENATION OF AFFECTION?

July 29, 2010 § 3 Comments

Philip Thomas, the Jackson lawyer who blogs at MS Litigation Review & Commentary has posted some trenchant thoughts about the cause of action for alienation of affection in Circuit Court that is sometimes used either for vengeance or to coerce a settlement in Chancery. 

I found his comments so thought-provoking for family law practitioners that I have copied and pasted it below rather than simply providing a link. 

I recommend Mr. Thomas’s blog to you as a regular read.  

Sick of Alienation of Affection Lawsuits?

Posted on July 27, 2010 by Philip Thomas

I’m sick of alienation of affection lawsuits. Who’s with me?

I’m sick of this one, which ironically was filed by a former Miss. Supreme Court Justice (McRae) who advocated abolishing the cause of action while he was on the Court. I’m sick of this one, which is just getting started. I’m sick of the one involving my old law firm that recently was the subject of a Supreme Court decision. I’m sick of the entire cause of action.

Here are just a few of the problems that I have with the cause of action:

  • fault—in an alienation of affections lawsuit, fault is placed on the third-person involved in the affair instead of the cheating spouse. But it was the cheating spouse who broke a vow.
  • causation—who can really say that the “alienation of affection” is what caused the marriage’s demise? Anyone who has ever been married knows that marriages are extremely complicated.
  • damages—as pointed out by Justice Dickinson in a concurring opinion in Fitch v. Valentine, there are no standards for compensating the plaintiff.
  • quasi-extortion—there is a quasi-extortion element to the cause of action. I’ve heard that many alienation of affection claims settle before suit is filed in order to keep the allegations out of the public record. Once suit is actually filed, the case is likely to go to trial because the plaintiff has shot his/ her biggest bullet. Compare that to the rest of the civil justice system where cases are rarely settled before suit is filed, but most do settle after suit is filed.
  • resolution—I do not believe that an alienation of affection case promotes the orderly resolution of the acrimony between the individuals involved. In fact, I think that it does the opposite.
  • 42 states do not recognize the cause of action. That fact standing alone does not make the action bad, but it does suggest problems.
  • the danger of entrapment—an enterprising couple who are grifters could set up an alienation of affection lawsuit and then share in the proceeds. A new couple moves to town. The wife is seen around town flirting with doctors and other wealthy men. This leads to a notorious affair followed by an alienation of affection lawsuit by the woman’s husband. In the lawsuit, the woman testifies that the affair did alienate her affection from her husband and destroyed their marriage. After a big settlement the couple then moves to North Carolina or another state that recognizes the action and starts the whole scam over. This is not that far-fetched to me. In fact, I would be surprised if there has never been collusion in an alienation of affection lawsuit.

In summary, it’s a bad cause of action that should be abolished

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