Bunten v. Bunten

• Decision Date: 10 June 1937
• Citation: 192 A. 727
• Parties: BUNTEN v. BUNTEN et al.
• Court: New Jersey Supreme Court

192 A. 727

BUNTEN

v. BUNTEN et al.

Supreme Court of New Jersey, Middlesex County.

June 10, 1937.

Action by Helene Bunten against William R. Bunten and another.

Judgment in accordance with opinion.

Julius Kass, of Perth Amboy, for plaintiff. Huyler E. Romond, of Perth Amboy, for defendants.

BARBOUR, Supreme Court Commissioner.

This action is brought to determine the constitutionality of an act of the Legislature entitled, "An Act declaring and carrying into effect the public policy of the State of New Jersey with respect to causes of action for alienation of affections, criminal conversation, seduction, and breach of contract to marry, actions thereon, contracts with respect thereto and acts and proceedings in connection therewith." P.L.1935, ch. 279 (N.J.St.Annual 1935, § 163—411 et seq.).

The plaintiff by the first count of her complaint alleges that the defendant Anna Bunten alienated the affections of Henry Bunten, husband of the plaintiff; by the second count that the defendant William R. Bunten alienated the affections of plaintiff's said husband; and by the third count both defendants alienated the affections of plaintiff's said husband and she has a "complaint for alienation of affection" against the defendants, "but is prevented from determining her rights and status in the premises by virtue of the aforementioned statute," and contends that such statute is unconstitutional in so far as it "deprives her of her property and rights without due process of law, and deprives her of the right to retain an attorney to prosecute an action for alienation of affections" as by reference to the complaint will more fully appear.

The complaint prays that the "court may make an order directing all the parties named herein as defendants, and the Attorney General of the State, to answer "the complaint and to appear before the Court and present their answer and arguments on such day as the Court shall determine, and upon such notice as this court shall order."

The complaint was served, together with a summons, upon the defendants William R. Bunten and Anna Bunten, but no notice appears to have been given to the Attorney General.

Having first come before the court on a motion by counsel for the defendants William R. Bunten and Anna Bunten to strike the complaint, counsel subsequently entered into a stipulation in writing that the issues raised by the pleadings be determined "as if Answer and Reply had been filed as of the time of argument of motion on the 4th day of December, 1936."

I am, therefore, refraining from determining whether or not the action may lie under the Declaratory Judgments Act (Comp.St.Supp.1924, § 163—351 et seq.), but will pass directly to the question of the constitutionality of chapter 279, P.L.1935, in so far as it pertains to the plaintiff and her alleged cause of action.

Assuming, but not determining, that at common law the plaintiff would have had a cause of action for the alleged alienation of the affections of her husband, I hold it to be within the province of the Legislature to abolish such an action.

In determining the intent of the Legislature we are aided by the preamble to the act (P.L.1935, p. 896), which reads as follows: "Whereas, The remedies herein provided for by law for the enforcement of actions based upon alleged alienation of affections, criminal conversation, seduction and breach of contract to marry have 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 of New Jersey that the best interests of the people of the State will be served by the abolition of such remedies. Consequently, in the public interest, the necessity for the enactment of this article is hereby declared as a matter of legislative determination; therefore, Be it enacted."

The purpose was clearly to prevent wrongs arising from an abuse of remedies therein referred to and including "actions based upon alleged alienation of affections." By the very nature of such an action the wrong cannot be prevented if the action may be instituted in the first instance, even though it be successfully defended. Even the threat of such an action does irreparable damage.

The press considers the institution of such an action as news which, in its endeavor to fulfill its duty to the reading public, must not be suppressed but must be published without regard to consequences in so far as the person charged is concerned. Unfortunately some publishers consider that their duty is not properly performed unless such "news" appears in boldface type, under a "scare" headline, accompanied with photographs. The press, however, is not alone at fault because "Dame Rumor" carried by the swift wings of "scandal-mongers" does an even more efficient job, and the "juicy morsel" is rolled around on the tongues of all who know, or know of, the individual accused.

His character, of course, is not affected, but his reputation is riddled and he becomes a person towards whom the finger of scorn is pointed by men, women, and children alike. The higher his previous standing in the community, state, or nation the greater the joy in relaying the scandal and, of course, the greater the harm.

When the action is later abandoned because the person accused is not willing to submit to blackmail or when upon trial the action is successfully defended the "news value" has diminished, to say the least, and not one-half of those who heard and remembered the news of the bringing of the action ever hear of the outcome, and the smirch on the reputation remains.

To avoid this the mere threat of bringing action was in recent years used improperly more and more frequently, developing into a "racket."

It is impossible to save the remedy for the honest, well-meaning, truly injured spouse without leaving the door wide open for the "racketeer." Therefore, the spouse having a bona fide complaint must, as a member of society, conform to a law designed for the protection of...