Tuesday, May 20, 2003

An interesting story on a legal development in Missouri:
Days appear numbered for spurned spouses' legal recourse
The Kansas City Star

It might be the jilted spouse's ultimate revenge: suing the other woman.

But time could be running out in Missouri for the cause of action known as "alienation of affections" -- breaking up a marriage.

The Missouri Supreme Court is set to hear arguments today in the case of a Buchanan County woman, Katherine Helsel, who won $75,000 in damages from the other woman in her ex-husband's life: his chiropractor, Sivi Noellsch.

Noellsch, now Sivi Helsel, appealed the award, and in March the state's highest court made the rare move of taking over the case from the appeals court. That indicates to some observers that the court may be ready to abolish the alienation of affections tort, which exists in only eight other states.

"That is certainly the conventional wisdom," said Ken Jones, editor of Missouri Lawyers Weekly. "Especially the fact that there was no court of appeals opinion signals that the (Supreme) court wants to address the issue for the reason of changing the law."

* * *
"It is time for Missouri to end this affront to modern sensibilities and to join the overwhelming trend of modern case law in other jurisdictions," Noellsch's attorneys wrote.

But Katherine Helsel's attorneys think their client's award, and the tort itself, should stand.

The attorneys wrote that the tort "protects the marital relationship. It allows an injured plaintiff to recover from a third party who intentionally engages in wrongful actions. Additionally, it deters third persons from interfering" in a marriage.

A vestige of Anglo-Saxon property law, alienation of affections has been discarded since 1935 by courts or legislatures in 39 states, including Kansas, but none in the past 10 years. The states where it still is recognized include Illinois, Mississippi, Utah and North Carolina, where a jury in 1997 awarded $1 million to a woman whose husband left her for his secretary.
I'm not sure I completely understand the reasons behind this legal trend (other than the cynical, legal realist explanation that too many judges and politicians commit adultery these days, and abolished the cause of action so as to preclude any possibility that they themselves might become involved in such lawsuits).

Thing is, every state recognizes some form of a tort called "tortious interference with contract," whereby you have a right to sue for damages if someone else "intentionally and improperly interferes with [your] prospective contractual relations," to quote the Restatement of Torts Section 766B. So why should marriage be any different? Why should the contract made by marriage be treated as less worthy of state protection than a contract between two widget makers?

Here's what the attorneys argued in the Missouri case:
Arguing that the alienation of affections tort should be abolished, they say that divorce law already provides remedies for ex-spouses in the form of property and child support. In that light, they said, allowing a person to sue a third party is superfluous.

In abolishing the criminal conversation tort nearly 10 years ago, the court "recognized society's intent not to provide an additional cash reward for suffering from adultery," they said.

In the last lines of their brief, the attorneys wrote that the law sometimes cannot dictate matters of the heart.

"Experience teaches us that people are imperfect, can be fickle, may fall out of love, and may decide to get out of a marriage for reasons that others do not understand. They may go on to start new relationships," they wrote. "This is what happened in this case."
Yes, people's feelings sometimes change. But that's true in the business world as well -- a businessperson might get tired of working with a particular supplier, and might succumb to the desire to break the contract in order to reward another supplier with whom he is friendly. Yet the law allows the jilted supplier to sue in such situations, if the new supplier attempted to interfere with the preexisting contract.


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