Goldberg v. Musim

• Decision Date: 01 May 1967
• Docket Number: No. 21445,21445
• Citation: 162 Colo. 461,427 P.2d 698
• Parties: Rosamond GOLDBERG, Plaintiff in Error, v. Eve MUSIM, Defendant in Error.
• Court: Colorado Supreme Court

Page 698

427 P.2d 698

162 Colo. 461

Rosamond GOLDBERG, Plaintiff in Error, v. Eve MUSIM, Defendant in Error.

No. 21445.

Supreme Court of Colorado, En Banc.

May 1, 1967.

Rehearing Denied May 29, 1967.

Charles Ginsberg, Charles Murdock, Denver, for plaintiff in error.

Gelt & Grossman, Fred M. Winner, Herbert H. Galchinsky, Denver, for defendant in error.

SUTTON, Justice.

C.R.S.1963, 41--3--1, formerly C.R.S. '53, 41--3--1, involved in this action reads as follows:

'Civil causes abolished.--All civil causes of action for breach of promise to marry, alienation of affections, criminal conversation and seduction are hereby abolished.'

Rosamond Goldberg, plaintiff in error and plaintiff in the trial court, filed for amended complaint entitled 'Damages for Impairment of Contract' on February 21, 1964, alleging as follows:

'I.

'The plaintiff and Harry H. Goldberg are husband and wife, having been married at Raton, New Mexico, on October 30, 1945; the plaintiff having obtained a Decree of Separate Maintenance in the District Court of the City and County of Denver, Colorado, on the 24th day of June, 1963, granted to the plaintiff because of the midconduct (sic) of said Harry H. Goldberg; that said action was filed on or about October 15, 1962.

'II.

'That the defendant, above named, at Palm Springs, California, and at various other places in the United States and Europe at various times and for several months prior to October 15, 1962, and continuously since said date, has induced plaintiff's husband to separate from the plaintiff resulting in the plaintiff's loss of service and society of her husband.

'III.

'That plaintiff's husband separated from and left the plaintiff on or about October 15, 1962, and the defendant, above named, at Palm Springs, California, and at various other places in the United States and Europe at various times and continuously since said date has persuaded plaintiff's husband not to return to her, resulting in the loss to the plaintiff of the services and society of her husband.

'IV.

'That on or about October 15, 1962 and continuously since said date the defendant, above named, for the purpose of depriving the plaintiff of her proper share of the property and estate accumulated during the marriage of the plaintiff and her husband, or owned by him and for the purpose of acquiring substantial amounts of said property for herself, induced and persuaded the plaintiff's husband to separate from the plaintiff, which he did on or about October 15, 1962, as a result of defendant's inducements and persuasions.

'V.

'That the plaintiff's husband separated from and left the plaintiff on or about October 15, 1962, and the defendant, above named, at Palm Springs, California, and at various other places in the United States and Europe and continuously since said date for the purpose of depriving the plaintiff of her proper share of the property and estate accumulated during the marriage of the plaintiff and her husband, or owned by him, and for the purpose of acquiring substantial amounts of said property for herself, induced and persuaded the plaintiff's husband not to return to her. As a result of defendant's wrongful acts, the defendant has acquired for herself from the plaintiff's husband substantial amounts of property and large sums of money which he has expended for the benefit of said defendant, and the plaintiff has been deprived of the use and enjoyment of said property.

'VI.

'That the acts and conduct of the defendant herein, as above set forth, have caused the separation of the plaintiff and her husband and made necessary the action for and decree of Separate Maintenance, described in Paragraph I hereof, causing the plaintiff great mental pain, suffering, humiliation, loss of social standing in the community and family disgrace.

'VII.

'That by reason of all the matters and things herein alleged, the plaintiff has been damaged in the amount of One Million Dollars.

'VIII.

'That in committing the acts complained of herein, the defendant has been guilty of malice, fraud and willful deceit, consisting of a reckless and willful disregard of the rights of the plaintiff by reason whereof, the plaintiff is entitled to an execution against the body of the defendant until the amount of any judgment rendered herein shall have been paid.

'X.

'Plaintiff believes that the within entitled action is not included as an action allegedly abolished under and by virtue of Chapter 41, Article 3, Colorado Revised Statutes of 1953. In any event, Chapter 41, Article 3, Sections 1, 2, 3, 4 and 5 of the Colorado Revised Statutes of 1953 are void and of no force or effect and are unconstitutional and in violation of Article II, Section 6, and Article V, Section 21, of the Constitution of the State of Colorado, and by virtue thereof any actions the plaintiff has as alleged herein may be maintained.'

To this complaint defendant in error Musim, defendant in the trial court, filed a motion to dismiss on the grounds that it failed to state a claim upon which relief could be granted and that the court lacked jurisdiction over the subject matter. The trial court, after a hearing, granted the motion. It held that the statutes in question are constitutional and that the substance of plaintiff's claim was in the nature of an action for alienation of affections and therefore barred by the statute.

On writ of error challenging this ruling, Goldberg claims as grounds for reversal that:

(1) When considering a motion to dismiss, each allegation of the complaint must be taken as true.

(2) The law recognizes that there may be a wrongful interference with the marital relation which does not involve alienation of affections or criminal conversation.

(3) The 1937 Statute abolishing actions for alienation of affections is unconstitutional since it denies plaintiff a remedy for an intentional wrong.

(4) The 1937 Statute is unconstitutional as it contains more than one subject.

The record includes a copy of a decree of separate maintenance awarded plaintiff on June 24, 1963. At that time a hearing on division of property, maintenance, costs and attorney fees was set for September 24, 1963; however, nothing in the record appears as to the disposition of the latter issues. In this regard the trial court in its ruling noted:

'* * * the plaintiff and her husband are engaged in a lawsuit in this Court, even though in a different division, which includes the question of division of property and what the property rights of the plaintiff are in the property held in the husband's name.'

Plaintiff's first allegation of error, viz., that the facts alleged in the complaint must be accepted as true by the court upon consideration of a motion to dismiss, is a correct statement of the law. E.g., Martinez v. Southern Ute Tribe, 150 Colo. 504, 374 P.2d 691 (1962) and Kaminsky v. Kaminsky, 145 Colo. 492, 359 P.2d 675, 95 A.L.R.2d 643 (1961). There is, however, no indication in this record that the above-cited rule was misapplied by the trial court in reaching its conclusion that the complaint failed to state a claim. We assume for this purpose that C.R.S.1963, 41--3--1 bars the claim as in substance being one for alienation of affections; and we further assume that the complaint fails to state any other claim which is not barred by the statute. We must therefore determine the validity of C.R.S.1963, 41--3--1, and also, whether any other claim for relief has been stated outside of the act.

We agree with the trial court when it concluded that this complaint sets forth what in law is a claim for alienation of affections. The injury in such an action is one of loss of affection and consortium, including loss of society, companionship and aid. See Worth v. Worth, 48 Wyo. 441, 49 P.2d 649, 103 A.L.R. 107 (1935); 27 Am.Jur., Husband and Wife § 524. The action required on the part of a defendant in such a case is simply inducing the spouse of the plaintiff to leave, or, once having left, to remain separated from the plaintiff. See French v. Deane, 19 Colo. 504, 36 P. 609, 24 L.R.A. 387 (1894). The action necessarily involves intent to induce the spouse to separate. See 27 Am.Jur., Husband and Wife § 523. With this in mind it seems clear that the facts alleged in Paragraphs II, III, IV and VI of the complaint place them squarely within the abolished action, for all that is alleged rises out of a relationship, i.e., an inducement to separate and resulting loss of society, loss of services, pain, suffering and humiliation.

The facts alleged in Paragraph V, however, seem to involve an injury to a purported property right belonging to plaintiff as a result of her marriage contract and which is not included within an action for alienation of affections. Assuming that the facts alleged may state a claim, we believe, however, that they are not such that the relief requested may be granted in this action. This is so because the plaintiff has already instituted an action for separate maintenance in connection with which all of her property rights arising out of the marriage should be adjudicated. A fraudulent transfer of property by the husband to Musim, if made for the purpose of depriving the wife of her rightful share in the property, should be attacked in connection with that action, or in subsequent proceedings for modification of the awards made pursuant to that action, by requesting that the transfer be set aside. See Bostron v. Bostron, 128 Colo. 535, 265 P.2d 230 (1953) and Fahey v. Fahey, 43 Colo. 354, 96 P. 251, 18 L.R.A.,N.S. 1147 (1908).

In this connection we note that plaintiff has alleged transfer of property belonging solely to her husband as well as property accumulated during the marriage. In Bostron v. Bostron, supra, 128 Colo. at 539, 265 P.2d at 232, we cited with approval language employed in earlier Colorado decisions to the effect that:

'* * * There can be no doubt of the power of a husband to dispose absolutely of his property during his...