Bearbower v. Merry

Decision Date17 May 1978
Docket NumberNo. 60734,60734
Citation266 N.W.2d 128
PartiesRandy L. BEARBOWER, Appellee, v. Dan W. MERRY, Appellant.
CourtIowa Supreme Court

Michael G. Hogan and Gene R. Yagla, of Lindeman & Yagla, Waterloo, for appellant.

C. Kevin McCrindle, of McCrindle, Bergstrom & Sindlinger, Cedar Falls, for appellee.

Considered en banc.


The issues in this appeal are whether the tort actions for alienation of affections and for criminal conversation should be abolished. Trial court overruled defendant's motion to dismiss plaintiff's petition based on these theories. We granted permission to appeal from this interlocutory order. We now hold the action for alienation of affections should be retained, but the tort of criminal conversation is abrogated as to conduct occurring after January 1, 1978. Because the actionable conduct in this case is alleged to have occurred before that date, we affirm trial court's ruling.

I. Origin of actions.

These torts came to us from the common law. Their viability has not been challenged previously in this jurisdiction.

Of course it is our duty to monitor and interpret the common law, and to abandon antiquated doctrines and concepts. Mease v. Fox, 200 N.W.2d 791, 796 (Iowa 1972); Haynes v. Presbyterian Hospital Ass'n., 241 Iowa 1269, 1274, 45 N.W.2d 151, 154 (1950). The genius of the common law is its flexibility and capacity for growth and adaptation. Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974).

In determining whether these actions should be retained we review their elements and distinguishing features:

"The essential elements of a cause of action for alienation of affection are wrongful conduct of defendant, loss of affection or consortium and causal connection between such conduct and loss. An actual intent to alienate is not necessary if defendant's conduct is inherently wrong and tends to and does have the effect complained of. Mere loss of the spouse's affection does not render defendant liable unless his misconduct was a substantial factor in causing such loss. The right protected is freedom from wrongful interference by another causing the loss of the love, companionship and affection of the spouse. A cause of action for alienation of affection does not necessarily, though it may, involve a loss of affection through adulterous relations. Although not essential to recovery, adultery between defendant and plaintiff's spouse may be shown in aggravation of damages.

"On the other hand, the gist of the action of criminal conversation is adultery between defendant and plaintiff's spouse. The right protected is the exclusive right of one spouse to sexual intercourse with the other."

Giltner v. Stark, 219 N.W.2d 700, 704-705 (Iowa 1974)

While both criminal conversation and alienation of affections belong to the same class, arise from the marriage relationship, and seek damages for loss of consortium, they are separate and distinct. They afford separate theories for one recovery. Id., at 704.

The only general defenses to an action for alienation of affections are plaintiff's consent, defendant's lack of knowledge of the existence of the marriage, and the statute of limitations. Frank v. Berry, 128 Iowa 223, 103 N.W. 358 (1905). A defense of privilege exists in certain circumstances. Koehler v. Koehler, 248 Iowa 144, 79 N.W.2d 791 (1956).

The only defenses to an action for criminal conversation are plaintiff's consent and the statute of limitations. See Stumm v. Hummel, 39 Iowa 478 (1874).

Because both actions are based on rights acquired by marriage, they are lost when the marriage is dissolved unless preserved in the decree. Van Ellen v. Meyer, 207 N.W.2d 552 (Iowa 1973); see § 598.20, The Code.

II. Alienation of affections.

There is no dispute among members of this court concerning the role of marriage in our social structure. Board of Dir. of Ind. Sch. Dist. of Waterloo v. Green, 259 Iowa 1260, 1269, 147 N.W.2d 854, 859 (1967) ("The law looks with favor upon marriage and seeks in all lawful ways to uphold this most vital social institution."); see Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 679, 54 L.Ed.2d 618, 629 (1978) ("(T)he right to marry is of fundamental importance for all individuals."); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010, 1018 (1967) ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."); Reynolds v. United States, 98 U.S. 145, 165, 25 L.Ed. 244, 250 (1879) ("Upon * * * (marriage) * * * society may be said to be built.").

Apparently our differences lie in the concept that:

"(T)he law of torts is concerned not only with the protection of interests of personality and of property, tangible or intangible, but also with what may be called 'relational' interests, founded upon the relation in which the plaintiff stands toward one or more third persons. An interference with the continuance of the relation, unimpaired, may be redressed by a tort action; and of this the relations of the family are a conspicuous example."

W. Prosser, Law of Torts, § 124, p. 873 (4th ed. 1971)

The relevant question is whether a family member's interest in the harmony of her or his home is of sufficient magnitude to warrant judicial protection from those who intentionally would interfere with it. Note, The Case for Retention of Causes of Action for Intentional Interference with the Marital Relationship, 48 Notre Dame L.Rev. 426 (1972).

The reasons usually articulated by those who would abolish the alienation of affection action are thus summarized by H. Clark, Law of Domestic Relations, § 10.2, p. 267 (1968) "The reasons underlying abolition of alienation of affections are many and persuasive. One is the opportunities for blackmail which the action provides, since the mere bringing of the action can ruin the defendant's reputation. Another is that lack of any reasonably definite standards for assessing damages and the possibility of punitive damages makes excessive verdicts likely. Still another 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 forced sale of his spouse's affections. Most significantly of all, the action for alienation is based upon psychological assumptions that are contrary to fact. As has been indicated, viable, contented marriages are not broken up by the vile seducer of the Nineteenth Century melodrama, though this is what the suit for alienation assumes. In fact the break-up is the product of many influences. It is therefore misleading and futile to suppose that the threat of a damage suit can protect the marital relationship. For all these reasons the abolishing statutes reflect a sound public policy and ought to be enacted more widely than they are."

This criticism, of course, proceeds from the wholly unsupported and obviously personal belief of the author that "a marriage is not broken up by outsiders if it is solidly based on the affections of the parties." Id., at 266.

One logically could proceed from the equally unsupportable but nonetheless widely held belief that many marriages do not sail their course in unending calm seas and sunny weather. Rather, sometimes the voyage is beset by troublesome but navigable adverse tides and storms. Such occasional stress should not furnish a stranger grounds to wrongfully meddle.

Most marriages are not required to endure the intentional, continuous and often vindictive third-person interference disclosed by our adjudicated decisions. See, e. g., Glatstein v. Grund, 243 Iowa 541, 51 N.W.2d 162 (1952); Rank v. Kuhn, 236 Iowa 854, 20 N.W.2d 72 (1945). This leaves an inadequate sampling from which to conclude otherwise viable marriages are immune to such abnormal pressures.

We further note the criticisms advanced by Clark, supra, are not typical of commentators in this area:

"(I)n spite of all of the objections which have been advanced, most of the writers in this field agree that some form of action should be preserved. The purpose of these suits is simply the protection of the home, and in this modern era of increasing instability in family relations, few would discourage any means which might have a more stabilizing effect upon the family."

Comment, "Anti-Heart Balm" Legislation Revisited, 56 Nw.L.Rev. 538, 545 (1961)

See 1 Harper and James, The Law of Torts, § 8.7, p. 629 (1956) ("(I)n the case of alienation, grievous wrongs are suffered and some of life's most important interests ruthlessly invaded. To abolish all remedy in such cases is certainly subject to serious question."); Prosser, supra, § 124, pp. 887-888 ("Their (statutes abolishing criminal conversation, seduction, alienation of affections) desirability is another matter. They reverse abruptly the entire tendency of the law to give increased protection to family interests and the sanctity of the home, and undoubtedly they deny relief in many cases of serious and genuine wrong.").

Abolition of the alienation tort in approximately one-third of the states has proceeded by statute except in two instances of judicial intervention. Many of those statutes were the result of notorious breach of promise of marriage cases which received widespread media condemnation in the 1930-1940 period. "(N) ewspaper emphasis has created an illusion of universality as to the evils of unfounded actions, coercive settlements or excessive verdicts which concededly exist in particular cases." Feinsinger, Legislative Attack on "Heart Balm," 33 Mich.L.Rev. 979, 1008-1009 (1935). See Comment, 56 Nw.L.Rev., supra, at 540. Thoughtful writers questioned whether justifiable resentment over abuse of the remedy of breach of promise to marry necessitated the wholesale abolition of established rights and remedies. Kane, Heart Balm and Public Policy, 5 Fordham L.Rev. 63, 66 (1936); see Brown, The Action for Alienation of...

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