Wyman v. Wallace

• Decision Date: 26 April 1976
• Docket Number: No. 2810--I,2810--I
• Citation: 549 P.2d 71,15 Wn.App. 395
• Parties: Thomas WYMAN, Respondent, v. Donald WALLACE, Appellant.
• Court: Washington Court of Appeals

Page 395

15 Wn.App. 395

549 P.2d 71

Thomas WYMAN, Respondent, v. Donald WALLACE, Appellant.

No. 2810--I.

Court of Appeals of Washington, Division 1.

April 26, 1976.

Nuxoll, Stroh, Newsum & Funk, P.S., Inc., Jay Nuxoll, Bellevue, for appellant.

Jon Marvin Jonsson, Seattle, for respondent.

PER CURIAM.

Quaere: Should the common-law action for the alienation of affections of a spouse be abolished?

We conclude that it should be.

The action for alienation of affections, insofar as it pertains to relationships between spouses, is an action carried into the law of Washington by its adoption of the common law of England. Beach v. Brown, 20 Wash. 266, 55 P. 46 (1898). We adopted the common law prior to statehood in 1863. RCW 4.04.010; In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942). Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972), recognized that when a rule of law has had its origins in the common law and therefore is a creation of the courts, courts may change or modify such a rule. Unless a maxim of the law has come from the legislature, it is proper for appellate courts to examine and change precepts which are incompatible with present-day society. Cooper v. Runnels, 48 Wash.2d 108, 291 P.2d 657, 57 A.L.R.2d 597 (1955); Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952). When a judicial conclusion of the past which established a public policy comes again before the courts, accepted assumptions should be reexamined in the light of current conditions and thinking. Pierce v. Yakima Valley Memorial Hosp. Ass'n, 43 Wash.2d 162, 260 P.2d 765 (1953); Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn.L.Rev. 265 (1963). ¹ We question the action for alienation of affections in the light of contemporary opinion, having in mind the ramifications we observe of the impact of the action upon those involved directly and indirectly.

During the last four decades the most populous states of the union have repudiated the action by statute. The legislatures of Alabama, California, Colorado, Connecticut, Florida, Illinois, Indiana, Maryland, Michigan, Nevada, New Jersey, New York, Pennsylvania and Wyoming abolished alienation of affections and collateral actions completely or permitted only vestiges to remain. ² In only one state, Louisiana surprisingly a state whose laws are based upon the civil law, has the action been abolished by the courts. The preamble to the New York statute enunciates the evils of the action for alienation of affections, reciting as follows:

The remedies heretofore provided by law for the enforcement of actions based upon alleged alienation of affections . . . having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the state that the best interest of the people of the state will be served by the abolition of such remedies.

Thompson's Laws, N.Y. (1939), Part II, Civil Practice Act, art. 2--A, § 61--a. The comment is made in M. Grossman, The New York Law of Domestic Relations § 313 (1947), that the New York legislature took action to 'curb the vicious practice' of suits for alienation of affections because of 'the fact that it was common knowledge that the great majority of such actions brought were in the nature of legalized blackmail.'

We alluded to the fact that the courts of Louisiana do not recognize the action. In Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927), the Supreme Court of Louisiana held that no right of action for the alienation of a spouse's affections existed in that state. The court gave a number of reasons why the action would not be allowed. Among the reasons enunciated were that the damages allowed in alienation of affections actions were essentially punitive damages which were not permitted in Louisiana, and that the right of action at common law is in some measure based upon the same obsolete idea that the wife is one of the husband's chattels, and that her companionship, her services and her affections are his property, for the loss of which, by wrongful inducement on the part of another man, the husband ought to be compensated with money.

115 So. at 450.

A number of legal writers have criticized the action also and encouraged its abrogation. As stated in Feinsinger, Current Legislation Affecting Breach of Promise to Marry, Alienation of Affections, and Related Actions, 10 Wis.L.Rev. 417, 430 (1935):

The justification for the abolition of such actions lies in the fictiousness of their underlying assumptions, the unwillingness of courts to modify the governing rules to accord with social realities, and the ineptitude of the judicial process to prevent vicious settlements out of court.

The action is of long standing in Washington, but neither its validity nor its consequences have been questioned heretofore by the courts. It is established that exemplary or punitive damages are not recoverable in an alienation of affections case in Washington, compensatory damages only being permitted. Essig v. Keating, 158 Wash. 443, 291 P.2d 323 (1930); Phillips v. Thomas, 70 Wash. 533, 127 P. 97 (1912). ³ However, the court was not confronted with a request ot inquire into the true nature of any award made in an action involving the alienation of the affections of a spouse in either Essig v. Keating or Phillips v. Thomas. In our opinion, the element of punishment is so inextricably interwoven into any award of damages for alienation of the affections of a spouse that the true nature of the award is punitive. We have noted that the Louisiana court based its abolition of the action in part upon the punitive nature of the damages awarded, and we concur with its reasoning and conclusions.

In the work on domestic relations selected and edited by Professor Rieke of the University of Washington Law School, Professor Rieke observes:

Actions for alienation of affection and criminal conversation as well as the previously discussed action for breach of the contract to marry, present rather obvious opportunity for coercion, fraud, and injustice. The most serious objection, possibly, lies in the uncertain measurement of damages. Even in jurisdictions permitting only compensatory damages, as Washington, the result will occasionally be a serious injustice to the defendant. This result is more frequently encountered where punitive damages are permitted. Arguably the social utility of the civil actions does not justify the hazards involved, and the desirable inhibition of interference should be left to criminal prosecution for such conduct.

L. Rieke, Domestic Relations Cases and Materials, ch. 4, No. 25, note at page 2 (rev. 1964). We find so little possible social utility in the action, when balanced against the social and individual harm that it can cause, that we cannot justify it in contemporary society. The action brings out in the plaintiff spouse deceit, jealousy, and greed. A prime motivation for bringing the action is often the need of the plaintiff to vindicate his or her position and justify one's own past shortcomings. In many actions the plaintiff sacrifices his or her own dignity to gain revenge, spite and humiliate others, and exact punishment. If divorce proceedings are involved as a...