Fundermann v. Mickelson

304 N.W.2d 790
CourtSupreme Court of Iowa
DecidedMay 6, 1981
Docket65064
StatusPublished
Cited by65 cases

This text of 304 N.W.2d 790 (Fundermann v. Mickelson) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fundermann v. Mickelson, 304 N.W.2d 790 (iowa 1981).

Opinions

HARRIS, Justice.

We have become convinced that there is inherent and fatal contradiction in the term “alienation of affections.” The alienation belies the affection. Suits for alienation are useless as a means of preserving a family. They demean the parties and the courts. We abolish such a right of recovery and, hence, reverse and set aside the trial court’s judgment.

It is scarcely necessary to relate the facts. As is typical, there was ample defense evidence that the marriage between the plaintiff and his former wife, Susan, had deteriorated to a point of no return long prior to defendant’s involvement. Predictably, there was also the plaintiff’s evidence that the marriage was not unusually or hopelessly stormy until Susan’s amorous affair with defendant. There have been two marriage dissolutions and Susan is now married to defendant.

I. The trial court, as mandated, by our prior decisions, Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978), submitted these conflicting versions of the evidence for the jury’s resolution. In our past reviews of alienation awards we have dutifully acknowledged and yielded to the jury’s prerogative in establishing facts from conflicting evidence. Iowa R.App.P. 14(f)(1).

Our. system of establishing facts,. however, has a strong, sometimes it seems an irresistible, tendency to break down in alienation cases. This is because of the incendiary effect of the usual evidence in such cases. Under the established theory of recovery, the jury should first undertake to decide which came first, the marriage breakdown or the misconduct. But juries necessarily face that first determination after learning of conduct of which they strongly disapprove and which society condemns.

It is illogical to pretend that juries can dispassionately resolve the factual disputes in alienation suits in the same manner as in other cases. There is a strong indication the jury was unable to do so here because it apparently rejected the testimony of plaintiff’s and Susan’s own daughter, Kathleen Neumiller. She testified she left home in 1974, before her final year of high school. This was before plaintiff says Susan became involved with defendant. Kathleen said, “I didn’t feel there was any love in the family. I didn’t feel there was any love toward me or toward each other, my mother and father.”

But we certainly should not condemn juries for the impossible difficulty they face in sorting out the contested facts in alienation suits. It is the theory of recovery that is flawed. That theory was rooted in ideas we have long since renounced, involving wives as property. The action has survived in the hope that it affords some protection to existing family relationships. But this lofty hope has proven illusory. Human experience is that the affections of persons who are devoted and faithful are not susceptible to larceny — no matter how cunning or stealthful. And it is folly to hope any longer that a married person who has become inclined to philander can be preserved within an affectionate marriage by the threat of an alienation suit. If we did [792]*792pretend that a would-be paramour would be thereby dissuaded, a substitute is likely to be readily found.

Increasingly, the states reject and renounce the right of an alienation recovery because the existence of such a right is itself a slander on marriage. As pointed out in Bearbower, 266 N.W.2d at 137 (dissenting opinion):

Still another [reason for abolishing the suit] is the peculiar light which the whole proceeding throws on the nature of marriage, leaving one with the conviction that the successful plaintiff has engaged in something which looks very much like a sale of his wife’s affections. Most significantly of all, the action for alienation is based on psychological assumptions that are contrary to fact.

Quoting H. Clark, Law of Domestic Relations, § 10.2 at 267 (1968).

II. There is an unmistakable trend away from allowing alienation suits. While Bear-bower was under submission Minnesota, by statute, abolished the right. Since then Georgia has. Not mentioned in Bearbower is the fact that Rhode Island had joined the states which limit recoveries by short statutes of limitation. Washington has abolished the right by judicial pronouncement. So now, in eighteen states and the District of Columbia, alienation actions have been totally abolished by statutes. Ariz.Rev. Stat.Ann. § 25-341 (West Supp. 1980-81); Cal.Civ.Code § 43.5 (West 1954); Colo.Rev. Stat. § 13-20-202 (1973); Conn.Gen.Stat. Ann. § 52-572b (1977); D.C.Code Encycl. § 16-923 (West Supp. 1978-79); Del.Code Ann. tit. 10, § 3924 (1975); Ga. Code Ann. § 105-1203 (Harrison Supp. 1980); Ind.Stat. Ann. § 34-4-4-1 (Burns Supp. 1980); Me. Rev.Stat.Ann. tit. 19, § 167 (West Supp. 1980-81); Md.Ann.Code, Courts and Judicial Proceedings § 5-301(a) (1980); Mich. Stat.Ann. § 600.2901 (1968); Minn.Stat. Ann. § 553.01 (West Supp. 1980); Mont. Code Ann. § 27-1-601 (1979); Nev.Rev. Stat. § 41.380 (1979); Or.Rev.Stat. § 30.840 (1975); Va.Code § 8.01-220 (1977); W.Va. Code § 56-3-2a (Michie Supp. 1980); Wis. Stat.Ann. § 238.01 (West Supp. 1980-81); Wyo.Stat. § 1-23-101 (1977).

In Louisiana, the cause of action has never existed. Moulin v. Monteleone, 165 La. 169, 178, 115 So. 447, 451 (1927), accord, Ohlausen v. Brown, 372 So.2d 787, 788 (La.Ct.App.1979).

Recently, Washington became the first state to judicially abolish the action for alienation of a spouse’s affection. Wyman v. Wallace, 94 Wash.2d 99, 104, 615 P.2d 452, 455 (1980).

Six states deny the recovery of money damages in alienation actions. Ala.Code tit. 6, § 5-331 (1978) (abolishes recovery for female 19 years or older) (injunction still permitted), see Logan v. Davidson, 282 Ala. 327, 330, 211 So.2d 461, 463 (1968); Fla.Stat. Ann. § 771.01 (West 1964); N.J.Stat.Ann. § 2A:23-1 (West 1952); N.Y.Civ. Rights Law § 80-a (Lawyers Coop. 1974); Ohio Rev. Code Ann. § 2305.29 (Supp.1979); Vt. Stat.Ann. tit. 15, § 1001 (1976).

Three states, while retaining the suit, view it with some disfavor. Ferriter v. Daniel O’Connell’s Sons, Inc., - Mass. -, Mass.Adv.Sh. Sept. 19, 1980 at 2081-82, 413 N.E.2d 690 (alienation actions are disfavored); Dube v. Rochette, 110 N.H.

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Bluebook (online)
304 N.W.2d 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fundermann-v-mickelson-iowa-1981.