Rotwein v. Gersten

• Decision Date: 30 July 1948
• Citation: 160 Fla. 736,36 So.2d 419
• Parties: ROTWEIN v. GERSTEN et al.
• Court: Florida Supreme Court

36 So.2d 419

160 Fla. 736

ROTWEIN v. GERSTEN et al.

Florida Supreme Court

July 30, 1948

Appeal from Circuit Court, Dade County; Stanley Milledge, judge.

John L Nixon and Montague Rosenberg, both of Miami, for appellant.

James J Marshall, of Miami, for appellees.

TERRELL, Justice.

The legislature of 1945 enacted Chapter 23138, Laws of Florida, F.S.A.§ 771.01 et seq., abolishing the 'right of action heretofore existing to recover sums of money as damages for the alienation of affections, criminal conversation, seduction or breach of contract to marry.' In October 1946, Noah Rotwein as plaintiff, filed his declaration seeking to recover damages against appellees for alienating the affections of his wife, Janet Gersten Rotwein. A demurrer to the declaration was sustained, the result of which was to uphold the validity of the act. The plaintiff appealed.

The sole question with which we are concerned is the constitutional validity of Chapter 23138, Acts of 1945.

Appellant contends that Chapter 23138 is void and unconstitutional because of the guaranties in Sections 1, 4 and 12, Declaration of Rights, Constitution of Florida, and Section 1, Fourteenth Amendment to the Federal Constitution. These provisions of the State and Federal Constitution have to do with the preservation of life, liberty and property and have little if any influence on actions to recover money for alienation of affections.

Appellant also relies on Daily v. Parker, D.C., 61 F.Supp. 701 and Heck v. Schupp, 394 Ill. 296, 68 N.E.2d 464, 167 A.L.R. 232, to support his contention. These cases treat and hold void an Illinois statute which apparently did not directly abolish the cause of action drawn in question, but made it unlawful for anyone to file a suit for alienation of affections. The Illinois Supreme Court struck the act down because its purpose was not briefly expressed in the title (Section 13, Article IV, Illinois Constitution, Smith-Hurd Stats.) and because, in the manner cast, it placed a premium on the violation of moral law by exempting those who do so from punishment. (Section 19, Article II, Illinois Constitution).

The Florida Statute is prefaced by a declaration of policy in which it is stated that actions for alienation of affections, criminal conversation, seduction and breach of contract to marry have been subject to grave abuses, causing extreme annoyance embarrassment, humiliation and pecuniary damages to many persons wholly innocent and free from wrongdoing, that they have been exercised by the unscrupulous for their own enrichment and that the best interests of the people of Florida will be served by the abolition of such remedies.

Under a democratic society, the legislature is the policy making authority and the courts are expected to heed a declaration like this unless clearly shown to have been promulgated without power to do so. It is true that the Florida Statute carries a penal section but it initially abolishes the remedy and puts the world on notice that 'heart balm' is no longer a specific for alienation of affections or any of the other remedies cataloged in the act. It appears that similar acts in Indiana, New York, New Jersey and Alabama have been upheld. Young v. Young, 236 Ala. 627, 184 So. 187; Hanfgarn v. Mark, 274 N.Y. 22, 8 N.E.2d 47; Bunten v. Bunten, 192 A. 727, 15 N.J.Misc. 532; Pennington v. Stewart, 212 Ind. 553, 10 N.E.2d 619; Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654.

These cases proceed on the theory that while marriage is a contract, it is not such a contract as is protected from impairment by the State and Federal constitutions. The acts condemned by Chapter 23138, grow out of the marriage relation and since the legislature has plenary power to regulate the marriage status, it...