Hell hath no fury: A brief history of the Alienation of Affection Tort in Iowa

Mary Zambreno Iowa Family Law Dickinson Law Des Moines Iowa

Posted on 05/14/2015 at 01:40 PM by Mary Zambreno

Professional golfer John Daly finalized his divorce from his fourth ex-wife, Sherrie Miller in 2010, but his legal battles continue. Miller recently filed an alienation of affection lawsuit against Daly's fiancée and caddie, Anna Cladakis, seeking damages for purportedly breaking up her marriage to Daly. Alienation of affection is a tort brought by a spouse against a third party typically the adulterous spouse's paramour  for interfering with and causing the breakdown of that spouse's marriage.

At common law, the scorned spouse has to show that love and affection existed between the married couple during the marriage, that the spousal love and affection was destroyed, and the paramour's malicious conduct contributed to the loss of affection. The plaintiff does not have to show that the defendant paramour actually intended to alienate the spouse's affection; rather, that his or her conduct tended to and did have the effect complained of. Only a handful of states today recognize alienation of affection. Daly's ex-wife filed her lawsuit in Mississippi which does recognize alienation of affection claiming that the affair took place there.

The tort of alienation of affection has been abolished in Iowa for almost 35 years. Prior to that, plaintiffs were prevailing in court for compensatory and punitive damages in alienation of affection lawsuits. The Iowa Supreme Court first addressed the viability of the alienation of affection tort in Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978). In Bearbower, the Court questioned whether an individual's relational interest is of sufficient magnitude to warrant judicial protection from those who intentionally interfere with it. Id. at 130. The Court then responded to the traditional criticisms of alienation of affection, one of them being that there should be no damages assessed against the defendant if the marriage was already irreparably unstable at the time of the affair.

The Court noted that mere loss of a spouse's affections does not render defendant liable unless the latter's misconduct was a substantial factor in causing such loss. Defendant is permitted to show a prior deteriorated marital situation in mitigation of damages. Id. at 128. Therefore, merely having the affair did not mean that the defendant was inevitably going to lose in court. Another common criticism at that time of alienation of affection was that the mere existence of such a tort would lead to the opportunity for blackmail; however, the Bearbower Court did not find this argument to be particularly persuasive because it noted that in this jurisdiction a large volume of these cases involve no alleged sexual misconduct.

They therefore present no risk to reputation,and consequently, no opportunity for blackmail. Id. at 133-134. The Court held that an action for alienation of affection is consistent with public policy. Three years later, amidst a growing number of jurisdictions abolishing the tort, the Iowa Supreme Court once again had the opportunity to address the alienation of affection tort in Funderman v. Mickelson, 304 N.W.2d 790 (Iowa 1981). The Court noted the predicament that juries find themselves when determining what came first  the marriage breakdown or the misconduct  and that juries might be unfairly influenced after learning of conduct of which they strongly disapprove and which society condemns. Id. at 791. Perhaps more importantly, however, the Court noted that the theory of recover is flawed because it is rooted in ideas we have long since renounced, involving wives as property. Id.

The purpose of alienation of affection torts to protect the spousal relationship from third party interference  is also what led to its demise in Funderman. The Court wrote that the alienation of affection 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 pretend that a would-be paramour would be thereby dissuaded, a substitute is likely to be readily found. Id. at 791-792. Ultimately, the Court chose to abolish the tort in Funderman because spousal love is not property which is subject to theft and plaintiffs in such suits do not deserve to recover for the loss of or injury to property which they do not, and cannot, own. Id. at 794.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.  

Categories: Mary Zambreno, Family Law


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