Pankratz v. Miller, No. 15234

CourtSupreme Court of South Dakota
Writing for the CourtSABERS; In his concurring opinion in Hunt, supra; WUEST, C.J., and FOSHEIM; HENDERSON; MORGAN; MILLER; HENDERSON; MORGAN; In his special concurrence
Citation401 N.W.2d 543
PartiesDuane C. PANKRATZ, Plaintiff and Appellee, v. Winston MILLER, Defendant and Appellant. . Considered on Briefs
Decision Date22 October 1986
Docket NumberNo. 15234

Page 543

401 N.W.2d 543
Duane C. PANKRATZ, Plaintiff and Appellee,
v.
Winston MILLER, Defendant and Appellant.
No. 15234.
Supreme Court of South Dakota.
Considered on Briefs Oct. 22, 1986.
Decided Feb. 25, 1987.

Rory M. Barth, Sioux Falls, George T. Qualley, Sioux City, Iowa, for plaintiff and appellee.

Sidney B. Strange, Strange & Palmer, Sioux Falls, for defendant and appellant.

SABERS, Justice.

Winston Miller (Winston), appeals the trial court's decision holding him liable for damages in a civil suit for alienation of affections. We reverse.

Facts

Elke Pankratz (Elke), is the estranged wife of plaintiff Duane C. Pankratz (Duane), a veterinarian. The Pankratz's were married in July of 1967. They had five children, three of whom are still surviving. Elke was born in post-war Germany. Duane is a native of Freeman, South Dakota. The couple met when Duane was traveling and working in Europe. Elke initiated a divorce action in Turner County, South Dakota, in the summer of 1984. At present, no judgment and decree of divorce has been entered in this matter.

Winston and Duane grew up together in Freeman. They were friends during their formative years and participated in some of the same school and church activities. Although Winston visited Duane once while he was attending college in Ames, Iowa, they apparently drifted apart after high school.

Winston returned to South Dakota in the fall of 1982, and became employed as an insurance salesman with his brother. The Miller brothers contacted Duane toward the end of 1982 in an effort to sell him a policy. Duane agreed to purchase life insurance for Elke and the policy was ultimately sold in March, 1983. Winston met Elke for the first time during these negotiations.

In the spring of 1983, Elke decided to attend summer school for art classes at Augustana College in Sioux Falls, South Dakota. This decision was met with substantial resistance from Duane and the children, even though this was something Elke had wanted to do for quite some time.

Elke began commuting to school daily from Freeman. Later in the summer, she began spending one night a week at the Sioux Falls Airport Holiday Inn to lessen the commute, and afford her more time to study. In the fall of 1983, Elke took an apartment in Sioux Falls. According to her deposition testimony, she considered this a "separation" from her husband and only returned to Freeman on the weekends to see the children. In its memorandum opinion, the trial court specifically found that there was no evidence to establish that Winston had anything to do with Elke's decision to attend Augustana College or to take up residence in Sioux Falls.

Elke initiated contact with Winston at about the time she began summer school. She invited him to dinner at a Sioux Falls restaurant where she picked up the check. According to Winston's testimony, he expected to be meeting with both Elke and Duane on this occasion. During dinner, Elke told Winston that she had been unhappy with her marriage for many years, that there were problems, and she questioned him about life as a divorced, single person.

Page 545

After this meeting, Elke continued to have contact with Winston at her request to discuss her problems, (marital and otherwise). Later in 1983, a sexual relationship developed between them. The first instance occurred when Elke invited Winston to her room at the Holiday Inn. Thereafter, their sexual liaisons occurred sporadically until the middle of 1984. Winston testified to having sexual relations with Elke approximately five or six times. Elke stated that sex was not the main focus of her friendship with Winston; she admitted that they were "intimate a few times;" and although she does not condone extramarital relationships, she stated that her "marriage had not been a marriage for many, many years." In fact, at the time of trial, Elke was dating another man from Bridgewater.

There was substantial defense evidence that the marriage between Duane and Elke had deteriorated past the point of reconciliation long before Winston's involvement. There was also substantial evidence presented through Duane's testimony that the marriage was not hopelessly beyond repair, but rather it was Winston's persuasive influence which enticed Elke away from her home and family.

The trial court entered Findings of Fact, Conclusions of Law, and a Judgment on October 31, 1985. Finding of Fact 11 states:

Though there were problems in the marital relationship between DOC [Duane] and ELKE PANKRATZ, there was love and affection to form the basis of a reconciliation of the marriage. The seduction and sexual relationship of WINSTON MILLER with ELKE PANKRATZ destroyed the possibilities of reconciliation. WINSTON MILLER'S conduct was wrongful with the result being to entice ELKE PANKRATZ away from the home and bed of DR. PANKRATZ. The deliberate acts of WINSTON MILLER caused the relationship of husband and wife to come to an end.

The court concluded that Winston's seduction and resulting sexual relationship with Elke interfered with, and destroyed the ability of Duane to reconcile and save his marriage. The trial court awarded Duane $10,000 in actual damages and $10,000 in exemplary damages.

Winston's Claims

Winston raises two issues on appeal. First, he urges this court to judicially abolish alienation of affections as a legal cause of action. Secondly, Winston claims that the evidence overwhelmingly demonstrated that there was no causal connection between his conduct and Elke's loss of affection for her husband which had been alienated long before their involvement.

1. WHETHER THE COMMON-LAW TORT OF ALIENATION OF AFFECTIONS SHOULD BE ABOLISHED AS A LEGAL CAUSE OF ACTION

The right to recover under the doctrine of alienation of affections has its origin in the common law. Hunt v. Hunt, 309 N.W.2d 818, 820 (S.D.1981). This common law basis exists despite statutory codification. 1 Id. In Hunt, we abolished the common-law tort action for criminal conversation but preserved the tort of alienation of affections. 2 The national trend is toward the judicial or statutory abrogation of alienation of affections as a legal cause of action. Id. at 821-822 and cases cited therein; Fundermann v. Mickelson, 304

Page 546

N.W.2d 790 (Iowa 1981) and cases cited therein. 3

In his concurring opinion in Hunt, supra, Justice Dunn wrote:

While I agree that criminal conversation should be abolished, I am convinced that the tort of alienation of affections should be preserved until repealed by legislative action. It is one thing to abolish an action in tort which is devoid of defenses and unjust. It is quite another to abolish a long-standing legislative and judicial intention to preserve the sanctity of marriage by providing a civil remedy, and where reasonable and just defenses are available to a defendant. ... I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the injured party.

309 N.W.2d at 823.

We see no reason to deviate from this position and therefore preserve the cause of action for alienation of affections.

2. WHETHER THERE WAS A CAUSAL CONNECTION BETWEEN WINSTON'S CONDUCT AND WIFE'S LOSS OF AFFECTION FOR HUSBAND

The elements necessary to sustain a claim for alienation of affections are: (1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) a causal connection between such conduct and loss. Hunt, 309 N.W.2d at 820. The gist of the action is the malicious interference with the marriage relationship. Monen v. Monen, 64 S.D. 581, 584, 269 N.W. 85, 87 (1936). The loss of consortium is the actionable consequence of an action for alienation. Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423 (1936). Consortium is a right growing out of the marital relationship. This term includes the right of either spouse to the society, companionship, conjugal affections, and assistance of the other. Morey v. Keller, 77 S.D. 49, 51, 85 N.W.2d 57, 58 (1957). A loss or impairment of any such elements will sustain an action for alienation of affections. Id. However, if it appears there was no affection to alienate, recovery is precluded. Trainor v. Deters, 22 Ohio App.2d 135, 259 N.E.2d 131, 134 (1969).

We review the facts with these elements in mind. Throughout her deposition 4 testimony, Elke maintained that she had lost her love and affection for her husband many years before her involvement with Winston. 5 She stated that problems in her marriage were evident from the beginning; that Duane was a workaholic and a very possessive, jealous, and domineering person

Page 547

who would not let her be her own person. She further stated that they strongly disagreed about religion and the manner in which Duane disciplined the children. 6

Pertaining to their friendship and sexual relationship, 7 the evidence shows that Elke initiated contact with Winston. She sought out his company--Elke talked about her problems, Winston listened. The first time they were intimate, it was Elke who invited Winston up to her room. She sent him cards and gifts upon occasion; he did not reciprocate. They were not in love; Winston did not promise her any future relationship, nor did she make any such promises to him. Indeed, Elke was seeing another man at the time of trial.

The record demonstrates that Elke instigated and then voluntarily participated in the affair which ultimately developed with Winston. 8 It is undisputed that they had sexual relations. However, this fact is not sufficient to sustain an alienation suit where there is no evidence that Winston's actions caused Elke to separate from her husband. 9 On the contrary, the evidence shows that Elke's affections for Duane were alienated long before her involvement with Winston. 10

The trial court found that by continuing the affair with Elke, Winston frustrated Duane's efforts to...

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18 practice notes
  • Veeder v. Kennedy, No. 20360
    • United States
    • Supreme Court of South Dakota
    • February 24, 1999
    ...a causal connection between such conduct and loss. Pickering v. Pickering, 434 N.W.2d 758, 762-3 (S.D.1989) (citing Pankratz v. Miller, 401 N.W.2d 543, 546 (S.D. 1987); Hunt, 309 N.W.2d at ¶15 The last time this Court addressed the issue of alienation of affections was in Pickering. 8 Over ......
  • In re Dokken, No. 20856.
    • United States
    • Supreme Court of South Dakota
    • January 19, 2000
    ...(Miller, C.J., writing the majority opinion with respect to the issue of the correct standard of review) (citing Pankratz v. Miller, 401 N.W.2d 543, 548 (S.D.1987); In re Investigation of the Highway Construction Industry, 396 N.W.2d 757, 758 (S.D. 1986); Leslie v. City of Bonesteel, 303 N.......
  • First Nat. Bank of Biwabik Minnesota v. Bank of Lemmon, Nos. 18816
    • United States
    • Supreme Court of South Dakota
    • February 14, 1995
    ...evidence we do not apply the clearly erroneous rule set forth in SDCL 15-6-52(a), but review the matter de novo. Pankratz v. Miller, 401 N.W.2d 543, 548 (S.D.1987); In re Investigation of the Highway Construction Industry, 396 N.W.2d 757, 758 (S.D.1986); Leslie v. City of Bonesteel, 303 N.W......
  • Lawler v. Windmill Restaurant, No. 16074
    • United States
    • South Dakota Supreme Court
    • October 12, 1988
    ...to be correct. Justice Henderson relies upon our previous decisions which, in fact, remain the law in this state. See Pankratz v. Miller, 401 N.W.2d 543 (S.D.1987); Investigation of Highway Const. Industry, 396 N.W.2d 757 (S.D.1986); State v. Abourezk, 359 N.W.2d 137 (S.D.1984); Geo. A. Cla......
  • Request a trial to view additional results
18 cases
  • Veeder v. Kennedy, No. 20360
    • United States
    • Supreme Court of South Dakota
    • February 24, 1999
    ...a causal connection between such conduct and loss. Pickering v. Pickering, 434 N.W.2d 758, 762-3 (S.D.1989) (citing Pankratz v. Miller, 401 N.W.2d 543, 546 (S.D. 1987); Hunt, 309 N.W.2d at ¶15 The last time this Court addressed the issue of alienation of affections was in Pickering. 8 Over ......
  • In re Dokken, No. 20856.
    • United States
    • Supreme Court of South Dakota
    • January 19, 2000
    ...(Miller, C.J., writing the majority opinion with respect to the issue of the correct standard of review) (citing Pankratz v. Miller, 401 N.W.2d 543, 548 (S.D.1987); In re Investigation of the Highway Construction Industry, 396 N.W.2d 757, 758 (S.D. 1986); Leslie v. City of Bonesteel, 303 N.......
  • First Nat. Bank of Biwabik Minnesota v. Bank of Lemmon, Nos. 18816
    • United States
    • Supreme Court of South Dakota
    • February 14, 1995
    ...evidence we do not apply the clearly erroneous rule set forth in SDCL 15-6-52(a), but review the matter de novo. Pankratz v. Miller, 401 N.W.2d 543, 548 (S.D.1987); In re Investigation of the Highway Construction Industry, 396 N.W.2d 757, 758 (S.D.1986); Leslie v. City of Bonesteel, 303 N.W......
  • Lawler v. Windmill Restaurant, No. 16074
    • United States
    • South Dakota Supreme Court
    • October 12, 1988
    ...to be correct. Justice Henderson relies upon our previous decisions which, in fact, remain the law in this state. See Pankratz v. Miller, 401 N.W.2d 543 (S.D.1987); Investigation of Highway Const. Industry, 396 N.W.2d 757 (S.D.1986); State v. Abourezk, 359 N.W.2d 137 (S.D.1984); Geo. A. Cla......
  • Request a trial to view additional results

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