Rivers v. Rivers, 0906

• Decision Date: 10 December 1986
• Docket Number: No. 0906,0906
• Citation: 292 S.C. 21,354 S.E.2d 784
• Parties: Helen Elizabeth RIVERS, Respondent, v. Loretta Altman Pinion RIVERS, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 784

354 S.E.2d 784

292 S.C. 21

Helen Elizabeth RIVERS, Respondent, v. Loretta Altman Pinion RIVERS, Appellant.

No. 0906.

Court of Appeals of South Carolina.

Heard Dec. 10, 1986.

Decided March 23, 1987.

Kaye Gorenflo Hearn and George M. Hearn, Jr., both of Stevens, Stevens, Thomas, Hearn & Hearn, P.A., Loris, and Harvey L. Golden, Columbia, for appellant.

C. Dixon Lee, III, of Draine, McLaren & Lee, P.A., Columbia, for respondent.

GOOLSBY, Judge:

This is an action for alienation of affections and criminal conversation brought by Helen Elizabeth Rivers against Loretta Altman Pinion Rivers. Helen recovered a jury verdict on both causes of action. The trial judge granted Loretta's motion for a new trial nisi on the cause of action for alienation of affections unless Helen remitted stated amounts of the actual and punitive damages. He denied Loretta's motion for a new trial nisi on the cause of action for criminal conversation. Helen remitted the amounts ordered by the trial judge on the cause of action for alienation of affections. Loretta appeals. We affirm.

The issues are whether the clergyman-penitent privilege applies to communications made to an ordained minister who provided marriage counseling, whether a person can recover at the same time on both a cause of action for alienation of affections and a cause of action for criminal conversation, whether the verdict on each cause of action was excessive, and whether the trial judge erred in denying a motion for a new trial nisi on the cause of action for criminal conversation.

Helen married Malcolm R. Rivers on February 28, 1947. Their marriage ended in divorce on November 3, 1983, nearly 36 years later. Shortly thereafter, on December 17, 1983, Malcolm married Loretta.

This action followed.

Helen alleged in her cause of action for alienation of affections that, while Helen and Malcolm were cohabiting as husband and wife, Loretta "willfully and wrongfully gained the affections" of her husband and "enticed him" away from her and that, as a proximate result of Loretta's alienating the affections of her husband, the marital relationship that she shared with Malcolm was destroyed. Loretta's actions in alienating her husband's affections away from her allegedly damaged Helen in that Loretta's actions served to deprive Helen wrongfully of "the company, society, support, and protection" of her husband and "of the happiness and benefits which she would not have otherwise received" and in that Loretta's actions caused Helen to suffer "great distress of mind, body, and estate."

Helen alleged in her cause of action for criminal conversation that Loretta engaged in sexual intercourse with Malcolm while he was Helen's lawful husband and that this caused the break up of Helen's marriage to Malcolm. Loretta's adulterous intercourse with Malcolm allegedly damaged Helen, "not only in personal reputation, but also in family reputation," wounded and disgraced Helen's feelings, and caused Helen to suffer "damages of mind and estate."

In her answer, Loretta admitted to having sexual intercourse with Malcolm before the divorce was granted; however, she denied that any conduct on her part caused the destruction of Helen's marriage.

At the end of all the testimony, the trial judge raised the question of whether the submission of both a cause of action for alienation of affections and a cause of action for criminal conversation to the jury would allow the plaintiff an opportunity for a double recovery. Nevertheless, the trial judge instructed the jury that it could award separate verdicts on each cause of action and he provided the jury separate verdict forms with which it could do so.

Loretta raised no objection to both causes of action being submitted to the jury. She sought for the first time to require Helen to elect between the two causes of action when she presented her post-trial motions for judgment notwithstanding the verdict and for a new trial nisi. See Harper v. Ethridge, 290 S.C. 112, 121, 348 S.E.2d 374, 379 (Ct.App.1986) (holding that "[i]n many instances, ... the case can go to the jury on all causes of action supported by the evidence at trial, with election required after verdict but before judgment is entered.").

I.

Loretta first argues that the trial judge abused his discretion in applying the clergyman-penitent privilege to confidential communications made by Helen to her marriage counselor.

Helen testified on direct examination that she and Malcolm received marriage counseling from Dr. Paul Carlson, a psychologist. On cross-examination, she associated him with the Trenholm Road United Methodist Church in Columbia and the church's pastoral counseling service.

Loretta called Dr. Carlson to testify. Dr. Carlson, an ordained Methodist minister holding a doctorate degree in psychotherapy, requested the trial judge to excuse him from testifying as to communications between Helen and himself because he believed these communications were confidential when made. He explained that, while he saw Helen and Malcolm as a therapist, he saw his role "as an ordained clergyman and as a pastoral counselor ... to help mend marriages ..." and that, if he were required to testify concerning his conversations with Helen, "it would be a breach of confidentiality." He further explained that the counseling program was "under the auspices of the church" and was a "service provided by the church for helping persons who [were] having difficulties in their marriages...."

Helen also objected to Dr. Carlson testifying as to all confidential communications between Dr. Carlson and herself. She argued that these communications were privileged under the clergyman-penitent privilege.

The trial judge ruled that all confidential communications made by Helen to Dr. Carlson while they were alone were privileged since Dr. Carlson "was a minister and working as part of a church program...."

Confidential communications made to clergymen were not privileged at common law. In re Swenson, 183 Minn. 602, 237 N.W. 589 (1931). In South Carolina, the clergyman-penitent privilege owes its origin to Section 19-11-90 of the South Carolina Code of Laws (1976). This statute provides as follows:

In any legal or quasi-legal trial, hearing or proceeding before any court, commission or committee no regular or duly ordained minister, priest or rabbi shall be required, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline of his church or religious body. This prohibition shall not apply to cases where the party in whose favor it is made waives the rights conferred.

Under our statute, then, there are four conditions that must be established before the clergyman-penitent privilege applies. There must be (1) a confidential communication; (2) the confidential communication must be disclosed to a regular or duly ordained minister, priest, or rabbi; (3) the confidential communication must be entrusted to the clergyman in his professional capacity; and (4) the confidential communication must be one that is necessary and proper to enable the clergyman to discharge the functions of his office according to the usual course of practice or discipline of his church or religious body.

Like the attorney-client privilege [ State v. Love, 275 S.C. 55, 271 S.E.2d 110, cert. denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 131 (1980) ], the burden of showing the facts required to establish the clergyman-penitent privilege rests on the party objecting to the disclosure of the communication. Not every communication made to a clergyman is privileged, of course. In the Matter of Fuhrer, 100 Misc.2d 315, 419 N.Y.S.2d 426 (1979). The question of whether a communication is privileged is a question for the trial judge to decide, after making a preliminary inquiry into the surrounding facts and circumstances leading up to the making of the communication. In re Swenson, supra. The determination by the trial judge of the question of privilege is conclusive, in the absence of an abuse of discretion. State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976).

Other states have considered the question of whether communications made to a clergyman in the course of marriage counseling are privileged. They have reached different conclusions. See Annot., 71 A.L.R.3d 794 (1976).

Clearly, the first two elements required by Section 19-11-90 to assert the privilege successfully were established by the evidence. Dr. Carlson considered Helen's communications to him to be confidential, as do we. See Kruglikov v. Kruglikov, 29 Misc.2d 17, 217 N.Y.S.2d 845 (1961), appeal dismissed, 16 A.D.2d 735, 226 N.Y.S.2d 931 (1962) (disclosures by a husband and wife to a rabbi with a view to reconciling and restoring their marriage held privileged). And there is no question but that Dr. Carlson is, as he represented himself to be, a protestant minister. The more difficult question is whether the other two elements were also established.

Regarding the third element, we hold that the confidential communications made by Helen to Dr. Carlson during the course of marriage counseling were made to him in his professional capacity as a clergyman. Decisions that a husband or a wife makes concerning his or her marriage can, and often do, involve spiritual and moral considerations. It is presumably for this reason that the Trenholm Road United Methodist Church permitted Dr. Carlson, under its auspices, to provide marriage counseling services to those experiencing marital difficulties. See In re Verplank, 329 F.Supp. 433 (C.D.Cal.1971) (because draft registrants must make decisions involving spiritual and moral considerations, court held that draft counseling services rendered to them by a chaplain were performed in the course of the chaplain's function as a...