304 N.W.2d 790 (Iowa 1981), 65064, Fundermann v. Mickelson

Docket Nº65064.
Citation304 N.W.2d 790
Party NameTheodore P. FUNDERMANN, Appellee, v. Gordon MICKELSON, Appellant.
Case DateApril 15, 1981
CourtSupreme Court of Iowa

Page 790

304 N.W.2d 790 (Iowa 1981)

Theodore P. FUNDERMANN, Appellee,

v.

Gordon MICKELSON, Appellant.

No. 65064.

Supreme Court of Iowa.

April 15, 1981

As Amended May 6, 1981. Rehearing Denied May 7, 1981.

Page 791

Robert E. Beebe and Michael W. Ellwanger of Kindig, Beebe, Rawlings, Nieland & Killinger, Sioux City, for appellant.

John T. O'Brien and Thomas S. Mullin of O'Brien & Galvin, Sioux City, for appellee.

Considered en banc.

HARRIS, Justice.

We have become convinced that there is inherent and fatal contradiction in the term "alienation of affections." The alienation belies the affection. Suits for alienation are useless as a means of preserving a family. They demean the parties and the courts. We abolish such a right of recovery and, hence, reverse and set aside the trial court's judgment.

It is scarcely necessary to relate the facts. As is typical, there was ample defense evidence that the marriage between the plaintiff and his former wife, Susan, had deteriorated to a point of no return long prior to defendant's involvement. Predictably, there was also the plaintiff's evidence that the marriage was not unusually or hopelessly stormy until Susan's amorous affair with defendant. There have been two marriage dissolutions and Susan is now married to defendant.

I. The trial court, as mandated by our prior decisions, Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978), submitted these conflicting versions of the evidence for the jury's resolution. In our past reviews of alienation awards we have dutifully acknowledged and yielded to the jury's prerogative in establishing facts from conflicting evidence. Iowa R.App.P. 14(f)(1).

Our system of establishing facts, however, has a strong, sometimes it seems an irresistible, tendency to break down in alienation cases. This is because of the incendiary effect of the usual evidence in such cases. Under the established theory of recovery, the jury should first undertake to decide which came first, the marriage breakdown or the misconduct. But juries necessarily face that first determination after learning of conduct of which they strongly disapprove and which society condemns.

It is illogical to pretend that juries can dispassionately resolve the factual disputes in alienation suits in the same manner as in other cases. There is a strong indication the jury was unable to do so here because it apparently rejected the testimony of plaintiff's and Susan's own daughter, Kathleen Neumiller. She testified she left home in 1974, before her final year of high school. This was before plaintiff says Susan became involved with defendant. Kathleen said, "I didn't feel there was any love in the family. I didn't feel there was any love toward me or toward each other, my mother and father."

But we certainly should not condemn juries for the impossible difficulty they face in sorting out the contested facts in alienation suits. It is the theory of recovery that is flawed. That theory was rooted in ideas we have long since renounced, involving wives as property. The action has survived in the hope that it affords some protection to existing family relationships. But this lofty hope has proven illusory. Human experience is that the affections of persons who are devoted and faithful are not susceptible to larceny no matter how cunning or stealthful. And it is folly to hope any longer that a married person who has become inclined to philander can be preserved within an affectionate marriage by the threat of an alienation suit. If we did

Page 792

pretend that a would-be paramour would be thereby dissuaded, a substitute is likely to be readily found.

Increasingly, the states reject and renounce the right of an alienation recovery because the existence of such a right is itself a slander on marriage. As pointed out in Bearbower, 266 N.W.2d at 137 (dissenting opinion):

Still another (reason for abolishing the suit) is the peculiar light which the whole proceeding throws on the nature of marriage, leaving one with the conviction that the successful plaintiff has engaged in something which looks very much like a sale of his wife's affections. Most significantly of all, the action for alienation is based on psychological assumptions that are contrary to fact.

Quoting H. Clark, Law of Domestic Relations, § 10.2 at 267 (1968).

II. There is an unmistakable trend away from allowing alienation suits. While Bearbower was under submission Minnesota, by statute, abolished the right. Since then Georgia has. Not mentioned in Bearbower is the fact that Rhode Island had joined the states which limit recoveries by short statutes of limitation. Washington has abolished the right by judicial pronouncement. So now, in eighteen states and the District of Columbia, alienation actions have been totally abolished by statutes. Ariz.Rev.Stat.Ann. § 25-341 (West Supp. 1980-81); Cal.Civ.Code § 43.5 (West 1954); Colo.Rev.Stat. § 13-20-202 (1973); Conn.Gen.Stat.Ann. § 52-572b (1977); D.C.Code Encycl. § 16-923 (West Supp. 1978-79); Del.Code Ann. tit. 10, § 3924 (1975); Ga. Code Ann. § 105-1203 (Harrison Supp. 1980); Ind.Stat.Ann. § 34-4-4-1 (Burns Supp. 1980); Me.Rev.Stat.Ann. tit. 19, § 167 (West Supp. 1980-81); Md.Ann.Code, Courts and Judicial Proceedings § 5-301(a) (1980); Mich.Stat.Ann. § 600.2901 (1968); Minn.Stat.Ann. § 553.01 (West Supp. 1980); Mont.Code Ann. § 27-1-601 (1979); Nev.Rev.Stat. § 41.380 (1979); Or.Rev.Stat. § 30.840 (1975); Va.Code § 8.01-220 (1977); W.Va.Code § 56-3-2a (Michie Supp. 1980); Wis.Stat.Ann. § 238.01 (West Supp. 1980-81); Wyo.Stat. § 1-23-101 (1977).

In Louisiana, the cause of action has never existed. Moulin v. Monteleone, 165 La. 169, 178, 115 So. 447, 451 (1927), accord, Ohlausen v. Brown, 372 So.2d 787, 788 (La.Ct.App.1979).

Recently, Washington became the first state to judicially abolish the action for alienation of a spouse's affection. Wyman v. Wallace, 94 Wash.2d 99, 104, 615 P.2d 452, 455 (1980).

Six states deny the recovery of money damages in alienation actions. Ala.Code tit. 6, § 5-331 (1978) (abolishes recovery for female 19 years or older) (injunction still permitted), see Logan v. Davidson, 282 Ala. 327, 330, 211 So.2d 461, 463 (1968); Fla.Stat.Ann. § 771.01 (West 1964); N.J.Stat.Ann. § 2A:23-1 (West 1952); N.Y.Civ. Rights Law § 80-a (Lawyers Coop.1974); Ohio Rev. Code Ann. § 2305.29 (Supp.1979); Vt.Stat.Ann. tit. 15, § 1001 (1976).

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42 practice notes
  • 422 S.E.2d 750 (S.C. 1992), 23720, Russo v. Sutton
    • United States
    • South Carolina Supreme Court of South Carolina
    • September 21, 1992
    ...husbands, and that the actions survived in hopes that they afforded some protection to marital relationships. Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981). However, "[h]uman experience is that the affections of persons who are devoted and faithful are not susceptible to larceny.......
  • 309 N.W.2d 818 (S.D. 1981), 13138, Hunt v. Hunt
    • United States
    • South Dakota Supreme Court of South Dakota
    • August 26, 1981
    ...§ 1-23-101 (1977). Both Iowa and Washington have judicially abolished the action for alienation of affections. Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980). The courts of Louisiana have never recognized alienation actions. Moulin ......
  • 401 N.W.2d 543 (S.D. 1987), 15234, Pankratz v. Miller
    • United States
    • South Dakota Supreme Court of South Dakota
    • February 25, 1987
    ...of affections inherently demeans the parties involved and the courts of law which preside over it. See Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981), which was cited in my writing in Hunt. Therefore, although I disagree with the treatment of the factual issues/factual appeal by the ma......
  • 471 N.W.2d 7 (Wis. 1991), 90-1004, Koestler v. Pollard
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • June 19, 1991
    ...For evaluations of the reasons for abolishing alienation of affections and criminal conversation actions, see Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980); Prosser and Keeton on Torts, sec. 124, p. 929-30 (5th ed. 1981) and commen......
  • Request a trial to view additional results
36 cases
  • 422 S.E.2d 750 (S.C. 1992), 23720, Russo v. Sutton
    • United States
    • South Carolina Supreme Court of South Carolina
    • September 21, 1992
    ...husbands, and that the actions survived in hopes that they afforded some protection to marital relationships. Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981). However, "[h]uman experience is that the affections of persons who are devoted and faithful are not susceptible to larceny.......
  • 309 N.W.2d 818 (S.D. 1981), 13138, Hunt v. Hunt
    • United States
    • South Dakota Supreme Court of South Dakota
    • August 26, 1981
    ...§ 1-23-101 (1977). Both Iowa and Washington have judicially abolished the action for alienation of affections. Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980). The courts of Louisiana have never recognized alienation actions. Moulin ......
  • 401 N.W.2d 543 (S.D. 1987), 15234, Pankratz v. Miller
    • United States
    • South Dakota Supreme Court of South Dakota
    • February 25, 1987
    ...of affections inherently demeans the parties involved and the courts of law which preside over it. See Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981), which was cited in my writing in Hunt. Therefore, although I disagree with the treatment of the factual issues/factual appeal by the ma......
  • 471 N.W.2d 7 (Wis. 1991), 90-1004, Koestler v. Pollard
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • June 19, 1991
    ...For evaluations of the reasons for abolishing alienation of affections and criminal conversation actions, see Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980); Prosser and Keeton on Torts, sec. 124, p. 929-30 (5th ed. 1981) and commen......
  • Request a trial to view additional results
3 firm's commentaries
  • Looking Back at the Alienation of Affection Verdict in Robertson v. Russell
    • United States
    • LexBlog United States
    • December 31, 2009
    ...Of course, I can hardly blame jurors for struggling with this cause of action. The theory of recovery, itself, is flawed. Fundermann, 304 N.W.2d at 791. Another practical problem with the cause of action is that it prolongs hostilities between individuals who often have to continue to deal ......
  • Looking Back at the Alienation of Affection Verdict in Robertson v. Russell
    • United States
    • LexBlog United States
    • December 31, 2009
    ...Of course, I can hardly blame jurors for struggling with this cause of action. The theory of recovery, itself, is flawed. Fundermann, 304 N.W.2d at 791. Another practical problem with the cause of action is that it prolongs hostilities between individuals who often have to continue to deal ......
  • Alienation of Affection Still Recognized in Some States
    • United States
    • JD Supra United States
    • November 2, 2018
    ...in part, within this state.” Iowa has not recognized the alienation of affection tort for almost 40 years. In Funderman v. Mickelson, 304 N.W.2d 790 (Iowa 1981), the Court noted the predicament that juries find themselves when determining whether the marriage breakdown or the paramour’s mal......
3 books & journal articles
  • Gambling, Greyhounds, and Gay Marriage: How the Iowa Supreme Court Can Use the Rational-Basis Test to Address Varnum v. Brien
    • United States
    • Iowa Law Review Nbr. 94-1, November 2008
    • November 1, 2008
    ...that the court should overrule Iowa's guest statute because many other state courts have already done so). [89] Fundermann v. Mickelson, 304 N.W.2d 790, 791-92 (Iowa 1981). [90] Rachel F. Moran, Law and Emotion, Love and Hate, 11 J. Contemp. Legal Issues 747, 776 (2001). At least a handful ......
  • Missing the mark: Alienation of affections as an attempt to address parental alienation in South Dakota.
    • United States
    • South Dakota Law Review Vol. 62 Nbr. 1, March - March 2017
    • March 22, 2017
    ..."no preventative purpose... since such torts seldom are committed with deliberate plan"). (43.) See Fundermann v. Mickelson, 304 N.W.2d 790, 791 (Iowa 1981) (stating that alienation of affections' theory of recovery is flawed because it is "rooted in ideas we have long since ......
  • Rules of engagement.
    • United States
    • Yale Law Journal Vol. 107 Nbr. 8, June 1998
    • June 1, 1998
    ...the ensuing decades, various states legislatively or judicially curtailed their heartbalm actions. See, e.g., Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981) (abolishing alienation of affections); Wyman v. Wallace, 615 P.2d 452 (Wash. 1980) (same). For examples of the kind of criticism ......