Fitch v. Valentine, 2005-CA-01800-SCT.

• Decision Date: 19 April 2007
• Docket Number: No. 2005-CA-01800-SCT.,2005-CA-01800-SCT.
• Citation: 959 So.2d 1012
• Parties: Jerry FITCH, Sr. v. Johnny VALENTINE.
• Court: Mississippi Supreme Court

959 So.2d 1012

Jerry FITCH, Sr. v. Johnny VALENTINE.

No. 2005-CA-01800-SCT.

Supreme Court of Mississippi.

April 19, 2007.

Rehearing Denied July 26, 2007.

Dion Jeffery Shanley, S. Duke Goza, Oxford, attorneys for appellant.

Michael Alfred Jacob, Ralph Edwin Chapman, Clarksdale, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. Before this Court today is a classic "he said"/"she said"/"the paramour said" case. It commenced when Johnny Valentine ("Valentine") filed a civil complaint against Jerry Fitch, Sr. ("Fitch") in the Circuit Court of Marshall County, Mississippi, averring various causes of action, including alienation of affections. Valentine is a plumber, Fitch is a millionaire who owns various businesses, primarily involving oil and real estate.¹ At the conclusion of a trial on the merits, a jury unanimously rendered a verdict against Fitch and awarded Valentine $642,000 in actual damages and $112,500 in punitive damages. Thereafter, Fitch filed a consolidated motion for judgment notwithstanding the verdict, new trial, and remittitur, which the circuit court denied. Fitch has filed this appeal.

FACTS

¶ 2. The record reflects that Valentine and Sandra Day² ("Sandra") were married on February 12, 1993. In 1995, the couple had a son together, J.V. In the spring of 1997, Sandra began working as a realtor for the Fitch Realty division of Fitch Oil Company and earned around $400 a week in cash, based upon her commissions, according to Fitch.³ Sandra testified that the adulterous affair with Fitch began in late 1997 or early 1998. According to Fitch, the relationship commenced in 1998. Fitch testified to knowing that Sandra was married to Valentine and that the couple had a child together. It was established at trial that Fitch testified at his deposition that he did not care if his affair with Sandra might affect her marriage to Valentine.

¶ 3. Valentine testified that his marriage to Sandra was "normal" prior to late 1998 and early 1999. The couple shared a joint checking account, ate meals together, and engaged in sexual relations "[l]ike normal couples" until that time. In June of 1998, Sandra became pregnant. During the fall of 1998, Valentine suspected Sandra was having an affair, but she denied any such wrongdoing.⁴ In February 1999, a daughter, K.V., was presumptively born to the marital union. Valentine testified that, at that time, he believed K.V. was his child. He was present at the hospital for K.V.'s delivery and was listed as K.V.'s father on her birth certificate; and he loved and cared for K.V. According to Valentine, "a few weeks after [K.V.] was born" he began to notice changes in Sandra.

¶ 4. At trial, Fitch testified that he was aware that K.V. was his child "a month or two after she was born[,]" even though in the divorce proceedings from his wife of thirty-five years, he admitted he knew K.V. was his child three or four days after her birth.

¶ 5. One night in August 1999, Sandra was not home by 10:30 p.m., and Valentine drove toward Fitch's cabin looking for her. After observing Sandra driving on Highway 4, Valentine flagged her down. Valentine testified that upon being confronted about an affair, Sandra once again denied any wrongdoing and came home with him. Thereafter, Valentine repeatedly requested that Sandra quit her job at Fitch Realty, but she consistently refused to do so. During this time frame, Valentine testified to finding "[t]wo or three hundred here and three or four hundred there, a thousand, $1,100 in different places" around their home. Sandra claimed she made this money at work. Valentine testified that the cash was more than he had previously observed her earning. Sandra's co-worker Susan Fleming testified that, prior to the divorce, Sandra told her that Fitch had given her $8,000 to buy a new Jeep Cherokee, which she acquired soon thereafter.⁵ Fleming also testified that shortly after K.V. was born, Sandra told her that Fitch had purchased a baby bed, high chair, baby seat, baby clothes and other baby items for K.V. Fitch readily admitted to giving money to Sandra between February 1999 and August 1999. Fitch, however, testified that he never paid Sandra to date or marry him, or to entice her away from Valentine.

¶ 6. On August 28, 1999, Valentine and Sandra separated. In September 1999, DNA testing conclusively excluded Valentine as K.V.'s biological father. Nonetheless, Valentine still offered to raise K.V. as his own child if Sandra would end the adulterous affair with Fitch. Sandra refused.

¶ 7. Valentine filed for divorce on October 28, 1999, and the divorce decree was entered on November 23, 1999. The decree specifically stated that "[t]he evidence presented in open [c]ourt clearly establishes that [Valentine] is entitled to a divorce on the grounds of adultery." (Emphasis added). Prior to the divorce, Valentine testified that Sandra never told him that she did not love him or that she wanted a divorce. He further testified that the marriage failed because Sandra "couldn't resist all the money[,]" and that absent Fitch's interference, the marriage would have remained intact.

¶ 8. As can be expected, Sandra denied "selling [her] affections" and testified that her affections for Valentine were absent before the adulterous affair with Fitch commenced. According to her testimony, she loved Valentine when they first married. By the time J.V. was born, however, Sandra said the marriage was only "okay." She stated:

[b]efore his gambling problem, Johnny loved to be with his buddies. He would not come home from work. He would drink. There's been occasions where I've gone looking for Johnny when he was with his buddies, and his remark was, I embarrassed him by coming to where he was to try to get him to come home to be the husband that he should be.⁶

Sandra further testified that, at that time, she "was still, obviously, in love with him. I tried to get him to change and be different, but . . . he didn't." Sandra said the breaking point came in January 1996, when she went to a casino looking for Valentine. She claims to have told him that if he did not leave the casino at that moment then their marriage was over. When he did not leave, Sandra states that "I didn't care if he went every night, and that's when our marriage was over[,]"⁷ although she further testified that their sexual relationship did not effectively end until 1997 or 1998. According to Sandra, the couple "separated [on] several occasions about [gambling], and he would promise that he would get help, and he didn't...." Valentine denied having a gambling problem or that the couple ever separated.

¶ 9. Sandra asserted that the adulterous relationship with Fitch, which she claims to have initiated, was caused by her unhappy marriage to Valentine. Furthermore, while she and Fitch engaged in sex two or three times a week, she maintained that the adulterous sexual activity had no effect on her alleged nonexistent desire to have sex with Valentine.

¶ 10. On December 21, 1999, Valentine filed suit against Fitch alleging various causes of action, including alienation of affections. In Fitch's answer, response to Valentine's first set of interrogatories, and response to Valentine's first set of requests for admission, filed when K.V. was more than one year old, Fitch denied having had sexual relations with Sandra, being the father of K.V., or giving Sandra any monetary support beyond her salary.⁸

¶ 11. Following trial, the jury unanimously found for Valentine and awarded him $642,000 in actual damages and $112,500 in punitive damages against Fitch. On April 12, 2005, the circuit court entered judgment against Fitch and in favor of Valentine "for the total sum of $754,500 and interest thereon in the amount of 8% per annum and all costs...." Thereafter, Fitch filed his consolidated motion for judgment notwithstanding the jury verdict ("JNOV"), new trial, and remittitur. Following Valentine's response, Fitch's reply for the first time requested the circuit court to abolish the tort of alienation of affections.⁹ Following a hearing, the circuit court concluded that:

[t]he jury's verdict . . . seemed to be a lot of money to me; but if I correctly instructed the jury on the elements of their damages and if the jury was entitled to consider once they arrived at a conclusion about liability, considered the elements that I instructed them on, I can't second-guess them, don't have the authority to do so, don't want to do so. It's the jury's job to establish the value of the loss and they've done so and I cannot say the amount of the verdict is such to justify the Court granting the motion to remit the verdict. The Court is going to deny all motions.

(Emphasis added). On September 16, 2005, Fitch filed his notice of appeal.

ISSUES

¶ 12. This Court will consider:

(1) Whether the tort of alienation of affections should be abolished on public policy grounds.

(2) Whether the circuit court committed evidentiary errors.

(3) Whether the circuit court erred in instructing the jury.

(4) Whether the jury verdict was contrary to the overwhelming weight of the evidence.

(5) Whether the punitive damages award violates due process.

(6) Whether this Court should order a remittitur of the award in this case.

ANALYSIS

I. Whether the tort of alienation of affections should be abolished on public policy grounds.

¶ 13. Fitch argues that this Court should abolish the tort of alienation of affections as a matter of public policy. Fitch states:

[t]he adversarial positions taken in this litigation over the intensely personal and private matters of [Valentine] and Sandra certainly does not serve as a shining example to the citizens of Marshall County that marriage as an institution must be preserved.

Fitch frames the trial as a "classic morality play" with "[t]he hapless victim; his wife's virtue stolen by the rich villain." Fitch contends that since the divorce rate continues to escalate in...