McMullen v. McMullen

• Decision Date: 20 June 1989
• Parties: Sylvia G. McMULLEN, Plaintiff-Appellee, v. Mary Hyde McMULLEN, Defendant-Appellant. 778 S.W.2d 859
• Court: Tennessee Court of Appeals

Page 859

778 S.W.2d 859

Sylvia G. McMULLEN, Plaintiff-Appellee, v. Mary Hyde McMULLEN, Defendant-Appellant.

778 S.W.2d 859

Court of Appeals of Tennessee,

Western Section.

June 20, 1989.

Permission to Appeal Denied by

Supreme Court Sept. 5, 1989.

James M. Manire, Manire, Ishee, Bing & Shea, David J. Sneed and Cynthia R. Gallaher, Waring Cox, Memphis, for defendant-appellant.

Asa H. Hoke and Karen N. McCarthy, Asa H. Hoke & Associates, Memphis, for plaintiff-appellee.

HIGHERS, Judge.

This case originated in Circuit Court at Shelby County as an alienation of affection action by the plaintiff, Sylvia G. McMullen, against the defendant, Mary Hyde McMullen, and resulted in a jury verdict in favor of the plaintiff in the amount of $200,000. That verdict was remitted to $150,000, judgment was entered, and this appeal followed.

The plaintiff married Pat McMullen ¹ in September 1972, three months after she met him and seven months after the death of his first wife of twenty-five years. In February of 1983, McMullen left the plaintiff and moved into an apartment. In March, the plaintiff filed complaint for divorce. In April, McMullen called a friend for dinner on her birthday, and upon learning that the friend had plans with the defendant, suggested that the three of them dine together, which they did. Over the weeks and months that followed, McMullen and the defendant, having been friends for decades, were often a part of the same social group at dinners, football games and other events. Eventually, their relationship developed to the point that they went out on dates. And in June of 1984, they traveled by ship on a two week cruise to China with married couples who were friends of theirs. A few weeks after this cruise, in August of 1984, McMullen's divorce from the plaintiff became final. Within a week, McMullen asked the defendant to marry him, and in October of 1984, the defendant and McMullen were wed.

The plaintiff filed this action for alienation of affection in January of 1987, and a jury trial was had in June of 1988. At the conclusion of the plaintiff's proof, the defendant moved for a directed verdict but was overruled. At the conclusion of all the proof, the motion was renewed and overruled. After a jury verdict in favor of the plaintiff in the amount of $200,000, the defendant moved for a judgment notwithstanding the verdict, for a new trial, and for remittitur. The trial court declined to grant a J.N.O.V. or a new trial but remitted damages to $150,000 and entered a judgment in accordance therewith. This appeal followed.

The tort of alienation of affection is based upon willful and malicious interference with the marriage relation without justification or excuse. Donnell v. Donnell, 220 Tenn. 169, 179-80, 415 S.W.2d 127, 132 (1967). Actions for alienation of affection may lie against defendants other than a spouse's lover, including parents or friends who encourage the spouse to end marital relations. This fact may explain the requirement that the interference be without justification or excuse. But even in those cases where the defendant is alleged to be the spouse's lover, the plaintiff must establish that the defendant acted with malice or improper motives. Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808, 810 (1938).

In this area of the law, "malice" and "improper motives" mean the same thing. Barker v. Barker, 8 Tenn.App. 536 (1928). The plaintiff is entitled to recover only in the event she is able to establish that she lost the affections of McMullen because of the active or aggressive misconduct of the defendant which became the inducing cause of any alleged loss or alienation of affections. If McMullen was the pursuer rather than the pursued, plaintiff's case must fail. Foster v. Copeland, 27 Tenn.App. 777, 159 S.W.2d 96, 97 (1941); Wilson v. Bryant, 167 Tenn. 107, 67 S.W.2d 133 (1934).

In Wilson, the Supreme Court of Tennessee stated that if a plaintiff's spouse was merely bent on the gratification of lust and was not particular in the choice of a guilty partner, the plaintiff's case is not made out. Wilson, 67 S.W.2d at 135. There was no allegation or evidence of any sexual involvement in the trial of the present case, but the court in Wilson went on to say that the plaintiff's case would fail if for any reason it appeared that the plaintiff's spouse was the pursuer rather than the pursued. The lines between pursuer and pursued are difficult to draw. Rare indeed, if it exists at all, is the relationship where pursuits are not in some manner reciprocated rather than simply received. With that in mind, we have carefully reviewed the record in light of defendant's motions for directed verdict.

In reviewing...