The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In today's Mandel v. Hafermann, Magistrate Judge Jacqueline Scott Corley (N.D. Cal.) dismissed the great bulk of the claims brought by Todd Mandel, Grey's ex-husband and ex-manager. (Grey is apparently a songwriter of considerable talents and success; she has cowritten with Eminem, and has written songs that were performed by Christina Aguilera, Celine Dion, Nick Jonas, and others. She has also performed guest vocals on songs by Dr. Dre, Nicki Minaj, and Macklemore.)
Mandel had sued for, among other things, defamation, based on statements made when Grey got a temporary restraining order against him, accusing him of "stalking her, hiding recording devices in her home, tracking her with a private investigator, and threatening her with violence." That case and many related ones were thrown out; but the court allowed the alienation of affections claim to proceed, applying the law of Utah, one of the few states that still recognizes the tort:
[Mandel alleges as follows:] Mr. Taylor met Ms. Hafermann [Skylar Grey is her professional name -EV] and Mr. Mandel in 2016, and the three developed a friendship. After meeting them, Mr. Taylor, a California resident, would visit Mr. Mandel and Ms. Hafermann in Utah. Sometime between late 2016 and mid-2017 Mr. Taylor and Ms. Hafermann began having an extramarital affair. In May 2017, Ms. Hafermann moved from the residence she shared with Mr. Mandel in Park City, Utah to St. Helena, California, where she began to live with Mr. Taylor. On June 12, 2017, Ms. Hafermann filed for divorce to end her marriage with Mr. Mandel….
Turning to the relevant choice-of-law factors, the injury occurred in Utah, where Mr. Mandel lived while Mr. Taylor and Ms. Hafermann conducted their extramarital affair and where Ms. Hafermann ultimately divorced Mr. Mandel. See Williams v. Jeffs (Utah 2002) (determining that under the "most significant relationship test" that Arizona was "situs of the marriage" and state where the plaintiff felt injury because it was where "he would have experienced the alienation of his wife's affections"). Regarding the conduct causing Mr. Mandel's injury, the [operative Complaint] alleges that Mr. Taylor had "conversations" with Ms. Hafermann in which he encouraged her to end her marriage, but … does not specify whether these conversations occurred during his trips to Utah, virtually over text message, or in Mr. Taylor's St. Helena, California recording studio. It is these conversations that Mr. Mandel alleges "poison[ed]" Ms. Hafermann's affections, as well as her extramarital affair whose place of occurrence the [Complaint] similarly fails to allege.
The [Complaint] makes general allegations that Mr. Taylor's Utah visits "started" his campaign to end Ms. Hafermann's marriage, but provide[s] no specific allegations regarding where any conduct that caused Mr. Mandel's injury occurred. Given the allegation as to the start of the campaign in Utah, the [Complaint] supports a slight inference that at least some of the complained-of conduct occurred in Utah…. Mr. Mandel and Ms. Hafferman were domiciled in Utah during Mr. Taylor's alleged misconduct. While Mr. Taylor resides in California, the formerly married couple's domicile "is the more relevant situs." Relatedly, Mr. Mandel and Ms. Hafferman's marital relationship was centered in Utah. Accordingly, Utah law applies to Mr. Mandel's alienation of affection claim….
To make out a claim for alienation of affection, a plaintiff must establish: "(a) the fact of marriage, (b) that the defendant willfully and intentionally, (c) alienated the wife's affections, (d) resulting in the loss of the comfort, society and consortium of the wife, and (e) (to justify punitive damages) a charge of malice." … [Mr. Taylor] argues that applying Utah law would violate the "fundamental principle of comity" because advancements in social acceptance of alternatives to traditional marriage "provide a substantial basis to conclude that Utah would no longer recognize the tort." Mr. Taylor, however, cites no case in support of this contention….
If Mr. Taylor's lament is that Mr. Mandel's complaint lacks sufficient factual allegations to plausibly support an inference that Mr. Taylor is liable, he should have made such argument in his 12(b)(6) motion. But he did not. The motion to dismiss the alienation of affections claim is therefore denied.
Alienation of affections used to be recognized throughout the U.S., but now appears to endure only in North Carolina (where it is thriving, with over 200 filings per year on average from 2000 to 2007) as well as in Mississippi, South Dakota, and Utah, where it appears to be litigated less often, and in Hawaii and New Mexico, where it appears to be very rare. (Illinois was also on this list until recently, but abolished the tort in 2016.) For a sample recent appellate case on the subject, see Cedar v. Johnson (S.D. 2018); for a leading modern opinion on whether the tort should be retained, see Fitch v. Valentine (Miss. 2007).
In principle, the tort could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions).
The related tort of "criminal conversation" (which is neither criminal nor involves conversation) basically consists of a defendant's having adulterous sex with plaintiff's spouse, though of course such conduct may also often lead to an alienation of affections claim. (The complaint's reference to Taylor's "conversations" with Hafermann/Grey apparently does not refer to the "criminal" variety.) The torts don't apply to "open marriages": consent of the plaintiff-spouse is a full defense.
Note that, where the tort is available, it is equally available to ex-wives as to ex-husbands; a brief review of recent North Carolina appellate cases shows plenty of cases brought by exes of both sexes (plus see these $5.8 million and $9 million verdicts in ex-wife vs. mistress cases, both from 2010).