Hunt v. Chang, 6197
| Decision Date | 19 April 1979 |
| Docket Number | No. 6197,6197 |
| Citation | 60 Haw. 608,594 P.2d 118 |
| Parties | Joan H. HUNT, Individually and as next friend of James Richard Hunt II, a minor, Plaintiffs-Appellants, v. Elaine CHANG, a/k/a Elaine Pepitone, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. The elements of an action for alienation of affections are:
(1) The defendant must have exercised improper, willful, and malicious influence on plaintiff's spouse in derogation of the plaintiff's marital rights.
(2) The plaintiff's spouse must not have voluntarily accepted defendant's advances at the outset of the affair.
(3) The plaintiff's spouse must not have actively contributed to the procuration by intentionally seeking the companionship and the affection of the defendant.
(4) The plaintiff must prove he or she was not at fault in causing the other spouse's affections to stray.
(5) The willful and malicious influence of the defendant on the plaintiff's spouse must be proven as the procuring cause of the loss of the love and affection which the plaintiff's spouse formerly held for the plaintiff.
2. Under H.R.C.P. Rule 56(c) a summary judgment is sustained only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
3. Inferences to be drawn from the record must be viewed in the light most favorable to the nonmoving party.
4. For purposes of ruling on a summary judgment a fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.
5. A minor child does not have a cause of action for alienation of affections.
Wayne D. Parsons (Hyman M. Greenstein, Honolulu, on the brief), for plaintiffs-appellants.
Leland H. Spencer, Honolulu (Kelso, Spencer, Snyder & Stirling, Honolulu, of counsel), for defendant-appellee.
Before RICHARDSON, C. J., OGATA and MENOR, JJ., and KOBAYASHI, Retired Justice, assigned by reason of vacancy. *
This is an appeal from orders of the circuit court of the first circuit, granting Elaine Chang defendant-appellee's (appellee) motion for summary judgment against plaintiff-appellant Joan H. Hunt (appellant) and dismissing appellant's action as next friend of James Richard Hunt II, a minor. We affirm.
I. Whether the trial court erred in granting appellee's motion for summary judgment against appellant.
II. Whether the trial court erred in granting appellee's motion to dismiss the action as to appellant, as next friend of James Richard Hunt II, a minor.
The appellant, individually and as next friend of James Richard Hunt II, a minor, filed a complaint, alleging alienation of affection, deprivation of affection and support, and damages suffered, in circuit court against appellee (also known as Elaine Pepitone).
Appellee filed a motion for summary judgment and/or dismissal and a memorandum in support of the motion. Appellee's memorandum states:
There are undisputed facts . . . which preclude plaintiffs' claim as a matter of law and entitle defendant to summary judgment.
(T)he complaint fails to state a claim on behalf of plaintiff James Richard Hunt II.
An affidavit of James R. Hunt was filed.
The appellant filed an affidavit of counsel in opposition to motion for summary judgment.
Depositions of all of the parties were filed.
After a hearing, the trial court granted appellee's motions.
James R. Hunt is the husband of the appellant. After James Hunt's first wife left him, James Hunt and appellant "moved in together". James Hunt and his first wife were divorced in June, 1964. Thereafter, the appellant and James Hunt were married in June, 1964. Their son, Jimmy, was born on June 30, 1964, 29 days after their marriage.
James Hunt has had eleven jobs in eleven years. 1 He has generally been employed as a restaurant manager.
Evidence adduced showed that James Hunt was unable to serve for any length of time in any of his employments. The appellant and son, Jimmy, traveled with and/or followed James Hunt to his various new employments in several different states.
In 1971 appellant filed a divorce complaint against James Hunt in Newport Beach, California, "because of his alcoholic and gambling." The appellant stated that James Hunt promised her that if she would "drop the divorce action he would stop drinking and gambling". Appellant stated, "He stopped gambling, and he temporarily at least stopped drinking."
In August or September, 1974, James Hunt came to Honolulu to work as general manager of the Oceania Floating Restaurant. Appellant and Jimmy remained in Phoenix. James Hunt told appellant he would send for them "as soon as conditions warranted."
The appellee has been married to Dean Pepitone since September 12, 1972. Dean Pepitone left appellee when James Hunt "came into the picture".
James Hunt first met appellee in October, 1974. They were introduced at the Oceania Restaurant, located in Honolulu, by mutual friends. The appellee stated that when she met James Hunt she knew he was married. James Hunt stated as follows:
Q. (W)hen did you start seeing her on a boy-girl relationship?
A. When did I Well, the day that I met her, or the evening that I met her.
Dean Pepitone stated that appellee would go to see James Hunt "every night."
In March, 1975, James Hunt moved in with appellee. By then Dean Pepitone had already moved out. At the time of the hearing James Hunt was still living with appellee. Appellee stated:
I would say he asked to live in my house on account of his financial hardship and I just don't have the heart to refuse; and in the meantime, I enjoy his company.
The appellee supported James Hunt while he was living with her. The appellee stated that she was in the "apartment rental, income rental business, and real estate." She further stated that a trust holds title to the apartments and real estate.
James Hunt made three or four trips abroad with appellee. In May or June, 1975, James Hunt joined appellee in Las Vegas. The appellee paid for the tickets and gave James Hunt money to use at the tables. James Hunt stated:
No, if was not prearranged in that sense that we arranged it here in Hawaii.
Mrs. Chang was on the mainland at the time, and on a telephone conversation, she had some time that she was going to Las Vegas, and I asked, "Well, I'd sure like to come over and join you there for a few days."
On about June 6, 1975, James Hunt was terminated from his job at the Oceania Restaurant.
On June 6, 1975, appellee and James Hunt left on a trip to Europe. The trip was paid for by appellee. They returned to Honolulu approximately July 16, 1975.
The appellant stated that from August, 1974, when James Hunt left Phoenix, until June, 1975, he wrote her twice a week and called her every Sunday night. James Hunt stated that he wrote appellant "two, three times a month, on the average."
James Hunt wrote letters to his wife while he was on the trip to Europe. He stated that he mailed appellant a letter, dated June 16, 1975, from Bucharest, Rumania, telling her not to come to Honolulu and that "things were through" between them.
The appellant stated that it was when she received a letter from James Hunt from Rome, 2 dated June 16, 1975, that she first suspected that he did not want her to come and join him in Hawaii. Appellant stated as follows:
Q. So the letter from Rome was the very first time that you became aware, or became suspicious that Jim was with another person?
A. That is correct. Well, let me qualify it by saying that I knew that my husband did not have the funds to go to Europe, where I just received a letter from him.
Q. In other words, you figured it out on your own that
A. To that extent, yes.
Q. Did you also become suspicious that there was another woman involved at that time?
A. Yes, rather, uh-huh, because of, again, the financial situation.
Q. Any other reason why you thought another woman was involved?
A. No, except that I had discovered just prior to that time, by a day or two, that Mr. Hunt had been terminated from the Oceania Restaurant. I had several people call to tell me that.
The appellant stated that after she received "the letter from Rome," she phoned Mrs. Francis Siu, a friend.
Q. When and where and from whom did you first become aware of the name Elaine Chang?
A. From a Mrs. Francis Siu.
A. She just told me that they (appellee and James Hunt) were very friendly, and she did not know for sure, but she was quite sure that Jim had gone on a trip around the world with her.
The appellant stated that "other than the facts which (allegedly) give rise to this complaint," she was sure that James Hunt never had an affair with another woman.
On July 18, 1975, after James Hunt had returned from Europe, appellant called him at the home of appellee. James Hunt asked appellant not to come to Honolulu and said that things would work out better for everyone concerned if she and Jimmy stayed in Arizona. Appellant stated:
Then she (appellee) broke in, on the extension I presume. At first she said that Mr. Hunt was a boarder there. Then she changed it. I asked her to please get off the line, that I was speaking to my husband. And she said, "I am supporting him and you are using my telephone and I don't want you to call this house now or ever again."
The appellant stated that James Hunt then broke in and said he would call appellant back from another number in twenty minutes. James Hunt called appellant back the next morning.
James Hunt stated that he had been sending appellant "a thousand dollars a month, on the average" for support. The appellant stated that she had not received any support money from James Hunt since "the middle of July."
James Hunt made the following statements regarding his marriage to appellant:
Q. Now, would it be fair to say that you and Joan were in love when you...
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