Fundermann v. Mickelson

• Decision Date: 15 April 1981
• Docket Number: No. 65064,65064
• Citation: 304 N.W.2d 790
• Parties: Theodore P. FUNDERMANN, Appellee, v. Gordon MICKELSON, Appellant.
• Court: Iowa Supreme Court

Page 790

304 N.W.2d 790

Theodore P. FUNDERMANN, Appellee, v. Gordon MICKELSON, Appellant.

No. 65064.

Supreme Court of Iowa.

April 15, 1981.

As Amended May 6, 1981.

Rehearing Denied May 7, 1981.

Robert E. Beebe and Michael W. Ellwanger of Kindig, Beebe, Rawlings, Nieland & Killinger, Sioux City, for appellant.

John T. O'Brien and Thomas S. Mullin of O'Brien & Galvin, Sioux City, for appellee.

Considered en banc.

HARRIS, Justice.

We have become convinced that there is inherent and fatal contradiction in the term "alienation of affections." The alienation belies the affection. Suits for alienation are useless as a means of preserving a family. They demean the parties and the courts. We abolish such a right of recovery and, hence, reverse and set aside the trial court's judgment.

It is scarcely necessary to relate the facts. As is typical, there was ample defense evidence that the marriage between the plaintiff and his former wife, Susan, had deteriorated to a point of no return long prior to defendant's involvement. Predictably, there was also the plaintiff's evidence that the marriage was not unusually or hopelessly stormy until Susan's amorous affair with defendant. There have been two marriage dissolutions and Susan is now married to defendant.

I. The trial court, as mandated by our prior decisions, Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978), submitted these conflicting versions of the evidence for the jury's resolution. In our past reviews of alienation awards we have dutifully acknowledged and yielded to the jury's prerogative in establishing facts from conflicting evidence. Iowa R.App.P. 14(f)(1).

Our system of establishing facts, however, has a strong, sometimes it seems an irresistible, tendency to break down in alienation cases. This is because of the incendiary effect of the usual evidence in such cases. Under the established theory of recovery, the jury should first undertake to decide which came first, the marriage breakdown or the misconduct. But juries necessarily face that first determination after learning of conduct of which they strongly disapprove and which society condemns.

It is illogical to pretend that juries can dispassionately resolve the factual disputes in alienation suits in the same manner as in other cases. There is a strong indication the jury was unable to do so here because it apparently rejected the testimony of plaintiff's and Susan's own daughter, Kathleen Neumiller. She testified she left home in 1974, before her final year of high school. This was before plaintiff says Susan became involved with defendant. Kathleen said, "I didn't feel there was any love in the family. I didn't feel there was any love toward me or toward each other, my mother and father."

But we certainly should not condemn juries for the impossible difficulty they face in sorting out the contested facts in alienation suits. It is the theory of recovery that is flawed. That theory was rooted in ideas we have long since renounced, involving wives as property. The action has survived in the hope that it affords some protection to existing family relationships. But this lofty hope has proven illusory. Human experience is that the affections of persons who are devoted and faithful are not susceptible to larceny no matter how cunning or stealthful. And it is folly to hope any longer that a married person who has become inclined to philander can be preserved within an affectionate marriage by the threat of an alienation suit. If we did pretend that a would-be paramour would be thereby dissuaded, a substitute is likely to be readily found.

Increasingly, the states reject and renounce the right of an alienation recovery because the existence of such a right is itself a slander on marriage. As pointed out in Bearbower, 266 N.W.2d at 137 (dissenting opinion):

Still another (reason for abolishing the suit) 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 sale of his wife's affections. Most significantly of all, the action for alienation is based on psychological assumptions that are contrary to fact.

Quoting H. Clark, Law of Domestic Relations, § 10.2 at 267 (1968).

II. There is an unmistakable trend away from allowing alienation suits. While Bearbower was under submission Minnesota, by statute, abolished the right. Since then Georgia has. Not mentioned in Bearbower is the fact that Rhode Island had joined the states which limit recoveries by short statutes of limitation. Washington has abolished the right by judicial pronouncement. So now, in eighteen states and the District of Columbia, alienation actions have been totally abolished by statutes. Ariz.Rev.Stat.Ann. § 25-341 (West Supp. 1980-81); Cal.Civ.Code § 43.5 (West 1954); Colo.Rev.Stat. § 13-20-202 (1973); Conn.Gen.Stat.Ann. § 52-572b (1977); D.C.Code Encycl. § 16-923 (West Supp. 1978-79); Del.Code Ann. tit. 10, § 3924 (1975); Ga. Code Ann. § 105-1203 (Harrison Supp. 1980); Ind.Stat.Ann. § 34-4-4-1 (Burns Supp. 1980); Me.Rev.Stat.Ann. tit. 19, § 167 (West Supp. 1980-81); Md.Ann.Code, Courts and Judicial Proceedings § 5-301(a) (1980); Mich.Stat.Ann. § 600.2901 (1968); Minn.Stat.Ann. § 553.01 (West Supp. 1980); Mont.Code Ann. § 27-1-601 (1979); Nev.Rev.Stat. § 41.380 (1979); Or.Rev.Stat. § 30.840 (1975); Va.Code § 8.01-220 (1977); W.Va.Code § 56-3-2a (Michie Supp. 1980); Wis.Stat.Ann. § 238.01 (West Supp. 1980-81); Wyo.Stat. § 1-23-101 (1977).

In Louisiana, the cause of action has never existed. Moulin v. Monteleone, 165 La. 169, 178, 115 So. 447, 451 (1927), accord, Ohlausen v. Brown, 372 So.2d 787, 788 (La.Ct.App.1979).

Recently, Washington became the first state to judicially abolish the action for alienation of a spouse's affection. Wyman v. Wallace, 94 Wash.2d 99, 104, 615 P.2d 452, 455 (1980).

Six states deny the recovery of money damages in alienation actions. Ala.Code tit. 6, § 5-331 (1978) (abolishes recovery for female 19 years or older) (injunction still permitted), see Logan v. Davidson, 282 Ala. 327, 330, 211 So.2d 461, 463 (1968); Fla.Stat.Ann. § 771.01 (West 1964); N.J.Stat.Ann. § 2A:23-1 (West 1952); N.Y.Civ. Rights Law § 80-a (Lawyers Coop.1974); Ohio Rev. Code Ann. § 2305.29 (Supp.1979); Vt.Stat.Ann. tit. 15, § 1001 (1976).

Three states, while retaining the suit, view it with some disfavor. Ferriter v. Daniel O'Connell's Sons, Inc., --- Mass. ---, Mass.Adv.Sh. Sept. 19, 1980 at 2081-82, 413 N.E.2d 690 (alienation actions are disfavored); Dube v. Rochette, 110 N.H. 129, 130, 262 A.2d 288, 289 (1970) (action susceptible to abuse, but legislature's judgment to allow continuance of action must be respected); Thompson v. Chapman, 93 N.M. 356, 358, 600 P.2d 302, 304, cert. denied, 92 N.M. 675, 593 P.2d 1078 (N.M.Ct.App.1979) (would be abolished if court had authority to do so).

Two states have abolished the action with some exceptions. Okla.Stat.Ann. tit. 76, § 8.1 (West Supp. 1980-81) (action permitted only if spouse was incompetent or a minor); Pa.Stat.Ann. tit. 48, § 170 (Purdon 1965) (action can only be brought against a relative of wayward spouse).

Three states have shortened their statute of limitations on alienation actions to just one year. Ark.Stat.Ann. § 37-201 (Bobbs-Merrill Supp. 1979); Ky.Rev.Stat.Ann. § 413.140(1)(c) (Bobbs-Merrill Supp. 1978) (includes alienation actions); Skaggs v. Stanton, 532 S.W.2d 442, 443 (Ky.1975); R.I.Gen. Law § 9-1-14 (Bobbs-Merrill Supp. 1980).

One state limits recovery to just actual damages. Ill.Code Ann. ch. 68, § 35 (Smith-Hurd 1959).

Eleven states employ burden of proof requirements similar to that used by the Iowa court. Compare Summerfield v. Pringle, 65 Idaho 300, 308, 144 P.2d 214, 218 (1943) (defendant's action must be the controlling cause of the alienation); Poulos v. Poulos, 351 Mass. 603, 607, 222 N.E.2d 887, 891 (1967) (defendant's action must be the controlling cause of the alienation); Hansen v. Strohschein, 178 Neb. 367, 369, 133 N.W.2d 598, 599 (1965) (controlling cause); Dube v. Rochette, 110 N.H. 129, 130, 262 A.2d 288, 289 (1970) (controlling cause); Lueg v. Tewell, 572 S.W. 97, 102 (Tex.Civ.App.1978) (must be controlling cause) with Bearbower v. Merry, supra, at 130 (defendant's action must be the controlling cause of the loss of affection). See Stanton v. Cox, 162 Miss. 438, 450, 139 So. 458, 461 (1932) (direct interference by defendant must have caused the wayward spouse's infatuation with defendant); Sutton v. Sutton, 567 S.W.2d 147, 148 (Mo.Ct.App.1978) (plaintiff need only show causal connection between defendant's conduct and alleged loss); Tice v. Mandel, 76 N.W.2d 124, 129 (N.D.1956) (requires only causal connection); Holloway v. Holloway, 204 S.C. 565, 569, 30 S.E.2d 596, 597 (1944) (requires only causal connection); Wilson v. Bryant, 167 Tenn. 107, 113, 67 S.W.2d 133, 135 (1933) (plaintiff must show that defendant was the pursuer and not the pursued); Sadleir v. Knapton, 5 Utah 2d 26, 29, 296 P.2d 278, 280 (1956) (defendant's action must be resulting cause).

Four states employ more difficult burdens of proof. Hunt v. Chang, 594 P.2d 118, 123 (Haw.1979) (five-prong burden of proof); Long v. Fischer, 210 Kan. 21, 25-26, 499 P.2d 1063, 1067 (1972) (five-prong test for burden of proof); Thompson v. Chapman, 93 N.M. 356, 358, 600 P.2d 302, 303-04, cert. denied, 92 N.M. 675, 593 P.2d 1078 (N.M.Ct.App.1979) (plaintiff must show existence of affection and that defendant maliciously caused the alienation by direct interference); Heist v. Heist, 46 N.C.App. 521, 523, 265 S.E.2d 434, 436 (1980) (plaintiff must show existence of genuine love and that malicious acts of defendant produced the loss).

One state, Alaska, has no reported case law on the issue.

It is sometimes suggested that the abrogation of a right, even a common-law right, should come from the legislature rather than from the courts. This...