Wallace v. Wallace

• Decision Date: 14 December 1971
• Docket Number: No. 13061,13061
• Citation: 155 W.Va. 569,184 S.E.2d 327
• Parties: Sharon Kay WALLACE et al., etc., v. Mamie Shaffer WALLACE.
• Court: West Virginia Supreme Court

Page 327

184 S.E.2d 327

155 W.Va. 569

Sharon Kay WALLACE et al., etc., v. Mamie Shaffer WALLACE.

No. 13061.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1971.

Decided Nov. 2, 1971.

Rehearing Denied Dec. 14, 1971.

Syllabus by the Court

1. At common law there is no right or cause of action in favor of a minor child against a third person for causing the alienation of affections of his parent and, in the absence of a statute authorizing such action, no such cause of action exists in this jurisdiction. Such cause of action should be created, if at all, by statute and not by judicial decision.

2. 'The general powers of the legislature are almost plenary. It can legislate on every subject not interdicted by the constitution itself.' Point 2, Syllabus, The State Road Commission of West Virginia v. The County Court of Kanawha County, 112 W.Va. 98 (163 S.E. 815).

3. 'In considering constitutional restraint, the negation of legislative power must be manifest beyond reasonable doubt.' Point 3, Syllabus, The State Road Commission of West Virginia v. The County Court of Kanawha County, 112 W.Va. 98 (163 S.E. 815).

4. Section 2a, Article 3, Chapter 56, Code, 1931, as amended, which provides that no civil action shall lie or be maintained in this State for breach of promise to marry or for alienation of affections unless such action was instituted prior to the effective date of the statute, is constitutional and valid.

H. D. Rollins, Charleston, for appellants.

Neal A. Kinsolving, Charleston, for appellee.

HAYMOND, Judge.

This is a civil action instituted October 22, 1969 in the Court of Common Pleas of Kanawha County, West Virginia, in which the plaintiffs, Sharon Kay Wallace, Tamera Genife Wallace, Edwin Dwayn Wallace, Brice Lionel Wallace and Tabbie Renae Wallace, infants under the age of twenty-one years, who sue by their next friend and mother, Opal Wallace, seek a recovery from the defendant, Mamie Shaffer Wallace, in the sum of $25,000.00 for each plaintiff or the total amount of $125,000.00 for the loss of the love, affection, protection, support and care of their father, Brady Wallace, caused by the wrongful conduct of the defendant.

By order entered August 25, 1970 the Court of Common Pleas sustained the defendant's motion to dismiss and dismissed the action on the stated ground that the action for alienation of affections was abolished by Chapter 101, Acts of the Legislature, Regular Session, 1969, Section 2a, Article 3, Chapter 56, Code, 1931, as amended, effective March 6, 1969, and also denied the motion of the plaintiffs to set aside the judgment and to award the plaintiffs a new trial, and filed a written opinion which is made a part of the record.

Upon appeal to the Circuit Court of Kanawha County, by final judgment rendered December 11, 1970, that court sustained the foregoing statute, denied the relief prayed for by the plaintiffs and affirmed as plainly right the judgment of dismissal rendered by the Court of Common Pleas and also filed a written opinion which is made a part of the record.

Upon the application of the plaintiffs this Court granted this appeal February 15, 1971.

According to the allegations of the complaint, the parents of the plaintiffs, Brady Wallace and Opal Wallace, were married during the period 1947 to January 20, 1969 when the wife and their mother, Opal Wallace, obtained a divorce from their father, Brady Wallace, because of his association with the defendant. Prior to his association with the defendant, Brady Wallace was a good and dutiful father, provided the children with a good home, supported them adequately and gave them his love and affection. About three years before the institution of this proceeding the defendant became infatuated with their father, bestowed favors upon him, took him into her home and her business and caused him to abandon the plaintiffs and to fail and refuse to give them the care, attention, love and affection which he had formerly bestowed upon them. The wrongful conduct of the defendant continued until their mother obtained a divorce from their father after which the defendant married their father and is now living with him as his wife.

The legal questions to be determined upon this appeal are (1) whether, regardless of the foregoing statute, the plaintiffs as minor children have a cause of action against the defendant for the alienation of affections of their father; and (2) whether the statute, effective March 6, 1969, before the institution of this action on October 22, 1969, is a valid statute and operates to abolish an action for breach of promise to marry and an action for alienation of affections, and defeats the claim of the plaintiffs.

The statute, Section 2a, Article 3, Chapter 56, Code, 1931, as amended, effective March 6, 1969, provides that 'Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this State for breach of promise to marry or for alienation of affections, unless such civil action was instituted prior to the effective date of this section.' Neither of the foregoing questions has been previously decided by this Court and each of them is a question of first impression in this State.

In the jurisdictions in which the first question has been considered and determined there is a conflict in the decisions as to whether a minor child has a cause of action against a third person who causes the alienation of affections of his parent from him and causes the parent to desert the family or to neglect his family duties. In Illinois, Michigan, and Minnesota state or federal court decisions recognize and uphold a cause of action by an infant child for alienation of affections of the parent of such child by a third person and the decisions in those jurisdictions represent the minority rule. In at least thirteen jurisdictions, however, Arkansas, California, Colorado, Connecticut, District of Columbia, Kansas, Massachusetts, New Jersey, New York, North Carolina, Ohio, Texas and Wisconsin the court decisions refuse to recognize and uphold but instead deny the right to maintain an action by an infant child for alienation of affections of his parent by a third person.

In Daily v. Parker, 152 F.2d 174, (7th Cir.), 162 A.L.R. 819, the court gave recognition to certain family rights of children and reached the conclusion that a child has a right enforceable in a court of law against one who has invaded and taken from the child the support and maintenance of its father, as well as damages for the destruction of other rights which arise from the family relationship and which have been destroyed or defeated by a wrongdoing third person. In that case the court divided the rights of children into two groups: (1) the right to recover for injuries which arise from their right to support and maintenance from their parent which are financial in character; and (2) the right to recover for injuries to feelings and damages which arise from their rights to the comfort, the protection, and the society of their father. In the Daily case the plaintiffs were the four minor children of Olive Means Daily and Wilfred J. Daily who sued by their mother as next friend to recover from the defendant Marian Parker who enticed and lured their father from his home and induced him to live and cohabit with the defendant in Chicago and to refuse to contribute to their maintenance and support.

In Johnson v. Luhman, 330 Ill.App. 598, 71 N.E.2d 810, the plaintiffs were five minor children who sued by their mother Leone Johnson to recover from the defendant Lydia Luhman for alienating the affections of their father and depriving them of his support and society. It appeared that the defendant had induced and enticed the father to desert his wife and minor children and to breach his legal duties to his family. The appellate court of Illinois, Second District, citing and relying upon the prior decision in Daily v. Parker, 152 F.2d 174, (7th Cir.), 162 A.L.R. 819, held that the plaintiffs had a right to protect their relationship with their parents and were entitled to damages from one who had destroyed their family unit.

In Heck v. Schupp, 394 Ill. 296, 68 N.E.2d 464, 167 A.L.R. 232, the court held unconstitutional a state statute which abolished the cause of action for alienation of affections, criminal conversation or breach of contract to marry because of an insufficient title and as violative of Article II, Section 19 of the Illinois Constitution which provided that 'Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay.' The opinion states that criminal conversation and alienation of affections 'involve the rights which all members of the family have a right to protect. Not only does every member of the family have a right to protect the family relationship but the State likewise has an interest in the sacredness of the family relationship. Certainly to give a license to one who would disrupt that relationship by tying the hands of injured members of the family, is not only clearly in conflict with section 19 of article II of our State constitution, but appears to us to be contrary to all sense of justice.'

In Russick v. Hicks, (W.D. and S.D. Mich.) 85 F.Supp. 281, in which two infant children of Theodore L. Russick and Mabel Bailey Russick, by their father as next friend, sued the defendant, Hicks, to recover damages which they alleged resulted from his conduct in enticing and inducing their mother to leave and desert them and their family home, the United States District Court, citing the Daily and Johnson cases and Miller v. Monsen, 228 Minn. 400, 37 N.W.2d 543, held that a minor child has rights in maintenance of the family relationship...