Neal v. Neal

• Decision Date: 22 April 1994
• Docket Number: No. 20770,20770
• Parties: , 62 USLW 2703 Thomas A. NEAL, Plaintiff-Counterdefendant-Respondent, v. Mary NEAL, Defendant-Counterplaintiff-Appellant, and Jill LaGASSE, Counterdefendant-Respondent.
• Court: Idaho Supreme Court

Page 871

873 P.2d 871

125 Idaho 617, 62 USLW 2703

Thomas A. NEAL, Plaintiff-Counterdefendant-Respondent, v. Mary NEAL, Defendant-Counterplaintiff-Appellant, and Jill LaGASSE, Counterdefendant-Respondent.

No. 20770.

Supreme Court of Idaho.

April 22, 1994.

Marcus Merrick & Montgomery, Boise, for appellant. Craig Marcus, argued.

Ringert Clark Chtd., Boise, for respondent Thomas Neal. Jeffrey R. Christenson, argued.

Moffatt Thomas Barrett Rock & Fields, Chartered, Boise, for respondent LaGasse. Kirk R. Helvie, argued.

TROUT, Justice.

This is an appeal from an order dismissing appellant's action for damages allegedly suffered as a result of an adulterous relationship between her husband and his mistress. We consider herein the following issues: (1) whether Idaho law recognizes a cause of action for criminal conversation based upon an alleged right to an exclusive sexual relationship with a spouse; (2) whether a party may recover for mental anguish resulting from the fear of contracting a sexually transmitted disease where there is no allegation of exposure to such disease; and (3) whether the facts alleged are sufficient to state a prima facie claim of civil battery. We answer the first two questions in the negative and affirm the dismissal as to those causes of action. As to the third issue, we believe sufficient facts have been alleged and we remand for further proceedings.

BACKGROUND

In January of 1990, defendant Thomas A. Neal filed for divorce after his wife became aware that he was having an extramarital affair. Mary Neal, his wife, counterclaimed for divorce and also asserted tort claims against Thomas Neal and Jill LaGasse. The gravamen of the claims against Thomas Neal and Jill LaGasse center upon allegations of an adulterous relationship between them. ¹

Respondents moved to dismiss under I.R.C.P. 12(b)(6). The trial court treated the motion as one for summary judgment as provided in I.R.C.P. 12(b) based on the submission by Thomas Neal of his affidavit and extracts of Mary Neal's deposition. Mary Neal did not file any brief in response to the defendants' motions to dismiss. Following the district court's grant of the motions to dismiss, she filed a motion for reconsideration in which she extensively briefed her legal theories of recovery. Over objection by defendants, the district court accepted the brief and permitted oral argument. After reviewing the submissions and argument, the district court denied the motion to reconsider without further opinion. The Court of Appeals affirmed. Mary Neal petitioned for and was granted review by this Court.

I. STANDARD OF REVIEW

When a case comes before this Court on a petition for review from an opinion of the Court of Appeals, "we do not focus on the opinion of the Court of Appeals, but rather on the decision of the district court." Eastern Idaho Regional Medical Center v. Board of Comm'rs of Bonneville County, Idaho, 122 Idaho 241, 244, 833 P.2d 99, 102 (1992). The district court's dismissal was in the form of a summary judgment and we therefore review it under standards applicable to a summary judgment. On appeal from an order granting summary judgment, we review the pleadings, depositions and admissions on file, together with the affidavits, if any, to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Ray v. Nampa School Dist. No. 131, 120 Idaho 117, 814 P.2d 17 (1991).

II. RECOVERY FOR CRIMINAL CONVERSATION

Mary Neal seeks to recover for the respondents' adulterous conduct which she Mary Neal contends that criminal conversation remains a viable cause of action under Idaho law, thereby allowing her to maintain an action for interference with her exclusive sexual relationship with her husband. She further contends that this cause of action, based on her husband's adultery, is grounded in I.C. § 32-901, which provides that a spouse has a marital duty of mutual respect, fidelity and support, and I.C. § 18-6001, which provides a criminal penalty for adultery. We address these issues in turn.

[125 Idaho 620] contends is actionable under tort theories of criminal conversation, invasion of privacy, interference with contract, violation of a statutory duty of fidelity and negligence. All of these causes of action are based, factually, on the alleged adulterous affair between Thomas Neal and Jill LaGasse. In addition, although Mary Neal alleged the various torts cited, the focus of her argument throughout this case has been on her claim of criminal conversation. For these reasons, our discussion here centers on the criminal conversation issue.

Black's Law Dictionary 373 (6th ed. 1990), defines "criminal conversation" as

[s]exual intercourse of an outsider with husband or wife, or a breaking down of the covenant of fidelity. Tort action based on adultery, considered in its aspect of a civil injury to the husband or wife entitling him or her to damages; the tort of debauching or seducing of a wife or husband....

Criminal conversation was recognized in Idaho as a common law tort in Watkins v. Lord, 31 Idaho 352, 171 P. 1133 (1918). It has its genesis in the proposition that a husband has a property right in his wife and her services. This property interest in his wife could be "stolen" by a third party through adultery. Since a wife was her husband's property and servant, her consent to the adultery was no defense to her husband's suit against her paramour. Prosser comments on the basis of criminal conversation from 8 Holdsworth, History of English Law 430 (2d ed. 1937), and states that "it was considered that she [the wife] was no more capable of giving a consent which would prejudice the husband's interest than would his horse." W. Prosser, Law of Torts § 124 at 875 (4th ed. 1971). This Court, and the courts of other states, have condemned this reasoning as archaic. O'Neil v. Schuckardt, 112 Idaho 472, 476, 733 P.2d 693, 697 (1986) (where this Court abolished the related cause of action of alienation of affections); see also Irwin v. Coluccio, 32 Wash.App. 510, 648 P.2d 458 (1982); Funderman v. Mickelson, 304 N.W.2d 790 (Iowa 1981).

Not since Watkins v. Lord was decided in 1918 has there been a reported case in Idaho involving criminal conversation. We believe that the change in societal views toward women which has occurred since then may have much to do with this total absence of case law. Here we take the opportunity presented us to hold that criminal conversation has been abolished as a cause of action in Idaho. ²

The medieval rationale for the viability of the tort offers the very reason to abolish it. The notion that a wife is the property of her husband offends the right of every woman to be treated as an equal member of society. In abolishing criminal conversation we join a number of jurisdictions which have already done so. See Irwin, 648 P.2d at 460-461 (listing some eighteen jurisdictions which have abolished, legislatively or judicially, criminal conversation). ³

Mary Neal contends that the obligation of fidelity imposed by I.C. § 32-901 provides the basis for an actionable claim for damages for the invasion of her exclusive sexual relationship with her husband. We disagree.

Idaho Code § 32-901 is contained in the domestic relations title of the Idaho Code and provides that "[h]usband and wife contract toward each other obligations of mutual respect, fidelity and support." Chapter 9 covers the law of community and separate property. Sheppard v. Sheppard, 104 Idaho 1, 3, 655 P.2d 895, 897 (1982). The remedy for the breach of an obligation imposed in Chapter 9, including a breach of fidelity, is provided in the divorce statutes. The statute specifically provides that adultery--which surely could be considered a breach of the duty of fidelity--is grounds for divorce. See I.C. § 32-603. Further, the fault of one spouse, including engaging in adulterous conduct, is a factor which may be considered by the court in awarding maintenance. I.C. § 32-705. We hold, therefore, that divorce is the exclusive remedy for a breach of any duty imposed by I.C. § 32-901. We reject Mary Neal's argument that her civil tort claims are also available to recompense her for her husband's adultery.

Finally, we reject Mary Neal's contention that the adultery statute results in the codification of criminal conversation as a tort and that this Court cannot abolish the tort of criminal conversation absent legislative abolition of the crime of adultery. The existence of a criminal statute proscribing adultery seeks recompense for a public wrong. A civil action arises from the violation of a private right. The existence of the former does not prevent the elimination of the latter. Lynn v. Shaw, 620 P.2d 899, 903 n. 13 (Okla.1980) (where the court abolished criminal conversation, noting that criminal sanctions for adultery had not been abolished). In addition, the tort of criminal conversation has its origins in common law and this Court may modify such law. See O'Neil, 112 Idaho 472, 733 P.2d 693 (judicially abolishing the common law tort of alienation of affections).

While this Court does not condone adultery and continues to hold marriage in the highest esteem, we are persuaded, for the reasons given, that the action pursued by Mary Neal does not serve to protect the institution of marriage. To the contrary, as noted by this Court in a related context, "a marriage is not likely to falter without the active participation of one of its members." O'Neil, 112 Idaho at 477, 733 P.2d at 698. Further, once such cause of action is brought, it can only serve to add more tension to the family relationship.

There are other reasons to abolish the tort of criminal conversation. Revenge, which may be a motive for bringing the cause of action, has no place in determining the legal rights between two parties. Further, this type of suit may expose the defendant to the...