Allen v. Lindeman

• Decision Date: 14 January 1969
• Docket Number: No. 53156,53156
• Parties: James ALLEN, Appellee, v. William LINDEMAN, Appellant.
• Court: Iowa Supreme Court

Page 346

164 N.W.2d 346

James ALLEN, Appellee, v. William LINDEMAN, Appellant.

No. 53156.

Supreme Court of Iowa.

Jan. 14, 1969.

Harold Brown, Sac City, and Steven A. Carter, Sioux City, for appellant.

Thomas L. McCullough, Sac City, and Russell S. Wunschel, of Carroll, for appellee.

BECKER, Justice.

The case comes to us as a result of plaintiff's efforts to collect a $20,000 alienation of affections judgment entered in the trial court and affirmed by us in Allen v. Lindeman, 259 Iowa 1384, 148 N.W.2d 610. On July 6, 1966, pending appeal to this court in the initial case, plaintiff proceeded under Chapter 630, Code of Iowa, 1966 and caused appointment of a receiver. No supersedeas bond appears of record. Defendant to some degree complied with the order creating the receivership. He asked for and received a modification of its terms. On October 27, 1967 defendant filed his petition to dissolve the receivership alleging he had filed his voluntary petition in bankruptcy, been adjudicated a bankrupt and as a result of such adjudication his debt to plaintiff had been discharged. After hearing the trial court held the discharge in bankruptcy did not relieve the judgment in question. Defendant appeals. We affirm the trial court.

Coupled with the appeal from the foregoing judgment, denominated by the parties as a final judgment, is an appeal from a later order finding defendant in contempt of court. The two appeals will be handled separately.

I. Defendant's first three assignments of error center around the assignment: '3. The trial court erred in its Order dated January 12, 1968 when it found that a discharge

in bankruptcy did not affect the judgment for alienation of affections.'

Defendant contends the Bankruptcy Act, 11 U.S.C.A. section 35 discharges all duly scheduled debts unless they fall within certain exceptions. Plaintiff argues his judgment is within the exceptions stated in section 35; i.e., 'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (2) are liabilities * * * for willful and malicious injuries to the person or property of another, * * * or for criminal conversation.'

Ths narrow issue is whether the judgment debt of defendant comes within either of the two quoted exceptions. This issue is ordinarily to be decided by the court where the debt was reduced to judgment. In Re Rhutassel (D.C.Iowa), 96 F. 597; 1 Collier on Bankruptcy, Fourteenth Ed., section 17.28, p. 1723. Once the adjudication in bankruptcy is shown, the burden is on the creditor to prove his debt is not dischargeable in bankruptcy. Kreitlein v. Ferger, 238 U.S. 21, 35 S.Ct. 685, 59 L.Ed. 1184; Hallagan v. Dowell, 179 Iowa 172, 161 N.W. 177; Whelan v. United States Guarantee Co., 102 U.S.App.D.C. 287, 252 F.2d 851. To determine whether the debt is within the exception the court may look to the entire record in the original action. Hallagan v. Dowell, supra, Tudryck v. Mutch, 320 Mich. 86, 30 N.W.2d 512. In order to come within the meaning of a willful and malicious injury it is not necessary that the cause of action be based on special malice as an essential element of the action. Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 and Den Haerynck v. Thompson (10 Cir.), 228 F.2d 72. The controlling issue is the exact nature of the debt on which the judgment is based; the form of action under which it is obtained is not controlling. Citizens Mutual Automobile Ins. Co. v. Gardner, 315 Mich. 689, 24 N.W.2d 410, 412.

Defendant recognizes there are numerous cases holding a judgment for alienation of affections is not discharged by an adjudication and discharge in bankruptcy. Allard v. La Plain, 147 Wash. 497, 266 P. 688; Ernst v. Wise, Ohio Com.Pl., 94 N.E.2d 806; In Re De Bock (D.C.Cal.), 14 F.2d 675; Leicester v. Hoadley, 66 Kan. 172, 72 P. 318. Defendant attempts to distinguish these cases, arguing there is no requirement of proof of willfulness and malice as an essential element of the cause of action in Iowa; therefore it cannot be said the jury found malice in this case, ergo, no malice has been shown.

It is true the essential elements of willfulness and malice are not required in Iowa as a basis for the cause. What is required is set out in Castner v. Wright, 256 Iowa 638, 643, 127 N.W.2d 583, 586: 'The three essential elements of such a cause of action are: 1) wrongful conduct of defendant, 2) loss of affection or consortium of plaintiff's spouse, and 3) causal connection between such conduct and loss. Actual intent to alienate is not necessary if defendant's conduct is inherently wrong and tends to and does have the effect complained of. Rank v. Kuhn, 236 Iowa 854, 857, 20 N.W.2d 72, 74, and citations; Koehler v. Koehler, 248 Iowa 144, 151, 79 N.W.2d 791, 796 and Kiger v. Meehan, 253 Iowa 746, 750, 113 N.W.2d 743, 746.'

In Rank v. Kuhn, supra, the court failed to make a specific finding of intent, and this court said: 'It is frequently said that an action for alienation of affections is for an intentional tort (Heisler v. Heisler, 151 Iowa 503, 506, 131 N.W. 676) and will lie only where the spouse's affections are purposely or intentionally alienated. See 27 Am.Jur. 129, section 527; 42 C.J.S. Husband and Wife § 662, p. 317; 3 Restatement of the Law, Torts, section 683. If it were necessary, in order to support the judgment, to hold that a finding of such purpose or intent is fairly to be inferred from the court's findings 'of wrongful association and intimacies' and 'misconduct,' we believe we would be justified in so doing. But we think the findings as made are sufficient.' (loc. cit. 236 Iowa at page 856, 20 N.W.2d at page 74). Thus, under our Iowa law, no element of specific intent to harm need be pleaded or proved. The element of wrongful conduct, 'wrongdoing', is sufficient.

We turn then to pronouncements by the Supreme Court of the United States and other appellate courts to determine whether the requirement of such 'wrongful conduct' is sufficient to bring the judgment within the exception.

Analyzing a criminal conversation judgment in Tinker v. Colwell, 193 U.S. 473, 485, 24 S.Ct. 505, 508, 48 L.Ed. 754, 759--760, the United States Supreme Court said: 'We think it is made clear by these references to a few of the many cases on this subject that the cause of action by the husband is based upon the idea that the act of the defendant is a violation of the marital rights of the husband in the person of his wife, to the exclusion of all others, and so the act of the defendant is an injury to the person and also to the property rights of the husband.

'We think such an act is also a wilful and malicious injury to the person or property of the husband, within the meaning of the exception in the statute.

'There may be cases where the act has been performed without any particular malice towards the husband, but we are of opinion that, within the meaning of the exception, it is not necessary that there should be this particular, and, so to speak, personal malevolence toward the husband, but that the act itself necessarily implies that degree of malice which is sufficient to bring the case within the exception stated in the statute. The act is wilful, of course, in the sense that it is intentional and voluntary, and we think that it is also malicious within the meaning of the statute.

'In order to come within that meaning as a judgment for a wilful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so that without it the action could not be maintained.'

In Allard v. La Plain, 147 Wash. 497, 266 P. 688, supra, it was urged the Maine judgment, sought to be enforced in the state of Washington, did not require a finding of malice. The instructions offered in evidence required an intentional wrong: "* * * And the law says it is wrong; And this wrongful act will give by implication all the malice that is necessary in a case where the allegations in the writ are such as in this case." (Emphasis by the Washington Court.) The Washington Supreme Court then said: 'We have italicized the words particularly relied upon by counsel for appellant. We do not see in these words any...