Chiyoko Ikuta v. Shunji K. Ikuta

• Decision Date: 26 May 1950
• Parties: CHIYOKO IKUTA v. SHUNKI K. IKUTA et al. Civ. 17318.
• Court: California Court of Appeals Court of Appeals

Page 854

218 P.2d 854

97 Cal.App.2d 787

CHIYOKO IKUTA v. SHUNKI K. IKUTA et al.

Civ. 17318.

District Court of Appeal, Second District, Division 3, California.

May 26, 1950.

Hanifin & Sease, Los Angeles, for appellant.

Stuart P. Fischer, Los Angeles, for respondent.

SHINN, Presiding Justice.

The sole question presented by this appeal is the constitutionality of section 43.5 of the Civil Code which provides: 'No cause of action arises for: (a) Alienation of affection. (b) Criminal conversation. (c) Seduction of a person over the age of legal consent. (d) Breach of promise of marriage.'

Appellant's complaint alleged six causes of action. The first, fourth, fifth and sixth counts were for divorce and other relief on the ground of extreme cruelty. Respondent Takata was named as a defendant only in respect of the second and third counts. The second alleged acts of adultery by plaintiff's husband with respondent as a ground of divorce. The third attempted to state a cause of action against respondent for alienation of the affections of plaintiff's husband. Respondent's general demurrer was sustained as to count two with leave to amend, and was sustained as to count three without leave to amend. Plaintiff having failed to amend as to count two within the time granted, judgment was rendered dismissing the complaint as to respondent Takata. The appeal is from that judgment. But a reversal is sought only as to the third cause of action.

The parties are apparently agreed that the demurrer to the third count was sustained solely on the ground that causes of action for alienation of affection have been abolished by section 43.5. Respondent does not contend that the judgment can be sustained on any other ground. It follows that unless section 43.5 is ineffective to accomplish its intended purpose, the judgment must be affirmed.

The constitutionality of section 43.5 is assailed on five separate grounds. Four of appellant's contentions are substantially identical with points urged and rejected in Langdon v. Sayre, 74 Cal.App.2d 41, 168 P.2d 57, where we affirmed the constitutional validity of section 43.5 insofar as it abolished actions for breach of promise to marry. The fifth is urged for the first time in the present case. Although, technically speaking, the Langdon case may not be a controlling precedent, since it dealt with another portion of the statute and the personal relations of unmarried persons, we see no occasion to depart from the views there expressed, and have concluded that appellant's final point is likewise untenable.

Appellant claims that section 43.5 is obnoxious to the provisions of section 1 of article I of the California Constitution in that it 'subjects the happiness of every married person, to the caprice and irreverence of whomever arbitrarily seeks to interfere with the most solemn and sacred of obligations.' The rights to enjoy liberty, to acquire, possess and protect property, which are secured to the individual by section 1, are not absolute but are 'circumscribed by the requirements of the public good.' In re Moffett, 19 Cal.App.2d 7, 14, 64 P.2d 1190, 1194. Like the protection accorded to personal rights and privileges by the requirement of due process of law, the guarantees of section 1 cannot operate as a curtailment upon the basic power of the legislature to enact reasonable police regulations. Matter of Yun Quong, 159 Cal. 508, 511-512, 114 P. 835, Ann.Cas.1912c, 969; Manford v. Menil Singh, 40 Cal.App. 700, 701, 181 P. 844. That section 43.5 is a justifiable exercise of the police power cannot be questioned. Actions for alienation of affections, criminal conversation, breach of promise of marriage, and seduction have been widely criticised as fruitful sources of fraud and extortion because of the ease with which they may be employed to embarrass, harass, and besmirch the reputation of one wholly innocent of wrongdoing. See 13 So.Calif.L.Rev. 37, and authorities cited. The power of the legislature to ameliorate such evils by abolishing or restricting causes of action giving rise to them has recently been reaffirmed in Werner v. Southern Cal. etc. Newspapers, 35 Cal.2d 121, 216 P.2d 825. Statutes similar to section 43.5 have been upheld in other jurisdictions. Pennington v. Stewart, 212 Ind. 553, 10 N.E.2d 619; Rotwein v. Gersten, 160 Fla. 736, 36 So.2d 419; Bean v. McFarland, 280 Mich. 19, 273 N.W. 332; Bunten v. Bunten, 192 A. 727, 15 N.J.Misc. 532; Hanfgarn v. Mark, 274 N.Y. 22, 8 N.E.2d 47, appeal dismissed for want of substantial federal question, 302 U.S. 641, 58 S.Ct. 57, 82 L.Ed. 498. See Young v. Young, 236 Ala. 627, 184 So. 187. The legislature could reasonably have concluded that eradication of the abuses associated with the actions could be successfully accomplished only by eliminating the actions entirely. This being so, it was within the constitutional power of the legislature to require the honest and well-intentioned complainant, as a member of society, to conform to a law designed for the protection of society. Bunten v. Bunten, supra.

Appellant's further contention that the statute is against public policy because it is demoralizing, and permits wilful disruption of the marriage, home and family without restraint, is sufficiently answered by what has been said. In any event, the argument should properly be addressed to the legislature. Section 43.5 constitutes a legislative declaration that the public policy of California is opposed to appellant's view. See Langdon v. Sayre, supra, 74 Cal.App.2d 41, 45-46, 168 P.2d 57, quoting from Thome v. Macken, 58 Cal.App.2d 76. 136 P.2d 116. If, as appellant urges, section 43.5 is inconsistent with other provisions of the Civil Code previously enacted, the more recent expression of the legislative will must, of course, control.

Nor is section 43.5 violative of section 16 of article I of the Constitution in that it impairs the obligation of contracts. Although the marriage relation may properly be regarded as a civil contract for some purposes, see Mott v. Mott, 82 Cal. 413, 22 P. 1140; Civ.Code, secs. 55, 155, it is a matter which has always been regarded as subject to plenary control by the legislature. In re Estate of Gregorson, 160 Cal. 21, 24, 116 P. 60, L.R.A.1916C, 697, Ann.Cas.1912D, 1124. "When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the state, statutory or common, which defines and prescribes those rights, duties, and obligations. * * *' * * * 'It is not then a contract within the meaning of the clause of the constitution which prohibits the impairing the obligations of contracts." Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654, quoting from Adams v. Palmer, 51 Me. 480, 481; see also Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815, 109 A.L.R. 1229.

Appellant's reliance upon sections 11 and 21 of article I, and section 25(19) of article IV is misplaced. These provisions prohibit special legislation in behalf of preferred classes or individuals. The fact that section 43.5 grants an exclusive immunity to a marital interloper at the expense of the injured spouse, although no such immunity attaches to one who interferes with certain other types of contracts, does not render it discriminatory in the constitutional sense. The statutory classification is neither arbitrary nor irrational, bears a definite relationship to the legislative objective, and embraces equally all persons similarly situated.

Appellant appears to rely chiefly upon his final contention, which was neither presented nor passed on in Langdon v. Sayre, supra, that section 43.5 is void for non-compliance with section 24 of article IV of the Constitution. That section provides: 'Every Act shall embrace but one subject, which subject shall be expressed in its title.' The argument in appellant's brief is wholly misdirected to the unofficial section heading added by the publisher of the...