Roach v. Keane

• Decision Date: 30 June 1976
• Docket Number: No. 530,530
• Parties: Raymond C. ROACH, Respondent, v. Sean P. KEANE, Appellant. (1974).
• Court: Wisconsin Supreme Court

Page 508

243 N.W.2d 508

73 Wis.2d 524

Raymond C. ROACH, Respondent, v. Sean P. KEANE, Appellant.

No. 530 (1974).

Supreme Court of Wisconsin.

Submitted on Briefs May 5, 1976.

Decided June 30, 1976.

Lloyd A. Barbee, Milwaukee, for appellant.

Georgia A. Felger, Warren J. Klaus, John Sundquist and Walther & Halling, Milwaukee, for respondent.

DAY, Justice.

The judgment appealed from confirms a jury verdict finding that the defendant, Dr. Sean P. Keane, alienated the affections of Irene Roach, wife of plaintiff Raymond Roach, and engaged in criminal conversation with Irene Roach. ¹ For alienation of affection, compensatory damages of $7,500 and punitive damages of $2,500 were awarded; for criminal conversation, compensatory damages of $10,000 and punitive damages of $10,000 were awarded. The principal issues on appeal are whether there was sufficient evidence to sustain the jury's finding that criminal conversation actually occurred, and whether the damages awarded are excessive.

Over 40 years ago Professor Nathan P. Feinsinger in an article in 10 Wisconsin Law Review 417 (1935) pointed out the problems involved in the so-called 'heart balm' suits:

'For generations the public has objected to the injustices alleged to result from actions for breach of promise to marry, seduction, alienation of affections and criminal conversation. . . .

'The principal evils aimed at are coercive extra-judicial settlements, unfounded actions and excessive verdicts. The law of blackmail or extortion is ineffectual to remedy the first mentioned evil, since the dread of publicity which controls in the first instance prevents the issue from being raised later in any form. While the rules of pleading and proof are theoretically a sufficient safeguard against the evil of legally unfounded actions, public opinion, stressing the disproportionately few cases dismissed on the merits, holds otherwise.

'Excessive verdicts are a possible danger in any action in which the jury is permitted to compensate for wounded feelings or to award exemplary damages. But the actions in question are unique in their connotation of sexual misconduct, interference with familial relations, and disregard for accepted canons of social propriety. This factor aggravates the usual tendency of juries to overcompensate for injured feelings and leads them to express their emotional sympathy and moral indignation in the guise of exemplary damages. In this expression juries are encouraged rather than checked by trial and appellate courts. The opinions of the latter characterize these actions as involving typically a virtuous and outraged plaintiff and a malicious and dishonorable defendant, a picture which is often wholly discordant with the life pattern. . . .'

The facts in this case show neither a 'virtuous and outraged plaintiff' nor a 'malicious and dishonorable defendant.'

The trial testimony is in conflict over the two major factual questions: (1) the prior condition of the Roaches' marriage (which is relevant to the damage questions) and (2) the relationship between Mrs. Roach and Dr. Keane.

Raymond and Irene Roach were married on June 23, 1956, and divorced on January 25, 1971, and, according to defense witnesses, lived the intervening years in a state of chronic emotional turmoil and frequent separation. Irene testified that marital difficulties began during her first pregnancy, while they were living in Toledo, Ohio, when Raymond bought a part interest in an airplane while forcing her to continue her job in order to pay the bills. Raymond consorted with known gamblers, allegedly losing money, and entertained other women in the plane on many late evenings. When Irene complained, Raymond exhibited his 'violent temper' and struck her 'many times,' throwing her into a closet once when she was pregnant, and giving her two black eyes.

While Irene was pregnant with their second child, the most significant of their 'many arguments about other women' occurred, concerning a Ms. W. According to Irene, Raymond admitted his involvement with this woman (a university undergraduate) and moved out for three or four weeks. Irene discovered a cache of letters and photographs, one letter of which is part of the record. In the summer of 1964, Raymond told Irene he wanted to marry Ms. W., and took Irene to see a Catholic priest (to whom he and Ms. W. had been going for religious instruction), who told them that their marriage was religiously valid and that Raymond could not marry Ms. W. in a Catholic church. Raymond moved out again, for four or five months.

After this, there was a reconciliation and a move to Minneapolis in the fall of 1964, where Raymond took a new job, promising to mend his ways. His nighttime philandering and physical abuse of Irene continued, according to her testimony. There were phone calls from unidentified women, and foreign lipstick stains on his clothing. In the fall of 1965, Irene began divorce proceedings and returned to her parents' home in Providence, Rhode Island, with the children until the following June. Raymond provided no financial support, but did visit once--only to begin flirting with a girl he met there, Irene testified.

There was another reconciliation followed by brief stays in Fond du Lac, Green Bay, South Dakota, and Madison, as required by Raymond's job. There were frequent arguments concerning Raymond's relationships with other women. From mid-1967 until their divorce in 1971, the Roaches lived in the Milwaukee townhouse complex, scene of the events directly underlying this suit. According to Irene, Raymond swore at her in private and in public, and slapped her on at least one occasion in 1969.

Irene worked at various jobs throughout the marriage, for the purpose of accumulating money to buy a house; due to Raymond's profligacy, she testified, her wages always went to pay current expenses. At the time of their divorce, less than $1,000 had been saved.

The Roaches' 16-year-old daughter testified at length concerning her parents' stormy marriage, describing the arguments, her father's undesirable associates--particularly a violent alcoholic friend who had stayed with them in Madison--and the physical abuse of Irene by Raymond. The daughter corroborated Irene's testimony that they received many calls from unidentified women, and that her mother's earnings went to pay the bills.

Irene's sister, Joan Al'din, had been acquainted with Raymond since 1956, and had lived with the Roaches for a couple of months in 1958; she testified she left when Raymond made improper overtures toward her. Raymond denied this; Irene testified that he had laughed 'sadistically' when she confronted him with her sister's report. Ms. Al'din also testified to having seen Raymond holding hands with an unknown woman in a restaurant. Ms. Al'din went to Minneapolis in 1965 to help her sister during the divorce proceedings, and was visiting in Madison when some of the female telephone calls arrived. She saw Raymond strike Irene in Toledo, and again in Madison. She testified she was aware of Raymond's gambling habits from his conversation and the fact that money shortages were traceable to his losses.

Ernest Schluter was a business and social associate of Raymond while he was in Madison and Milwaukee, and testified to having overheard arguments between the Roaches, and Raymond's curses at Irene. On one occasion in 1967, he and Raymond had spent an evening with two Madison girls at a local bar; Raymond had later gone with one of them to an unknown destination. Schluter had heard Raymond use the alias 'Ray Holland,' and was told by Raymond not to mention it in front of Irene.

To rebut the defense testimony, Raymond relied entirely on his own testimony to establish his devotion as a husband and father prior to the move to Milwaukee in 1967. He did not recall ever having struck or physically abused Irene. He denied ever having loved another woman, having had a sexual relationship with another woman, or 'propositioning' other women during the marriage. He admitted 'courting' Ms. W., and receiving numerous letters from her during several months in 1964. He admitted having gone to Catholic instruction classes with Ms. W., but denied that these were marriage orientation sessions. He claimed to have spent less than $500 on the airplane in Toledo, and explained the 1965 separation as the result of financial difficulties. Telephone calls from women in Minneapolis were 'totally' related to his employment, he testified. Raymond testified that the years between 1965 and mid-1970 were the happiest of his life. He specifically recalled that there were no significant arguments during the first half of 1970; he stated that he and his family 'were always going someplace together', and that he consistently spent his evenings at home. He was finished with the period of assignments as 'area sales manager' for his company (which produced telephone directories), which had taken the family to North and South Dakota and to various cities in Wisconsin. They and 'gone through an awful lot together' and now he 'was to the point where I was making good money.'

Following his wife's alleged affair with Dr. Keane and the divorce, Raymond testified, he suffered a 'tremendous ache,' 'was constantly on tranquilizers,' and moved to Colorado 'to retain my sanity,' although it is notable that his income went up 20% after the move, and he alleged no specific monetary damage.

Raymond's supporting witnesses included the manager of the Milwaukee townhouse complex in which he and his wife had lived, Vernon Lenhart, and Lenhart's wife Genevieve. Their home was two doors away from the Roaches'; the testified that they had heard no arguments between Mr. and Mrs. Roach, and that they had seen Mr. Roach playing with his children. The Roaches' immediate neighbor, Frances Brown, testified that she had never heard any arguments emanating from the Roach home. Their neighbor on the other side, ...