The Volokh Conspiracy
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Alienation of Affections in Mississippi
From Davis v. Davis, decided yesterday by the Mississippi Supreme Court, in an opinion for the court by Justice Leslie King:
John and Sandra Davis, a then-married couple, had two children in the 1980s. In 2018, John discovered the possibility that the children were not biologically his, but that they may have been the biological result of Sandra's extramarital sexual relations with Porter Horgan. Almost immediately after discovering this possibility, John sued Sandra and Horgan for fraud, alienation of affection, and intentional infliction of emotional distress. A jury ultimately awarded John $700,000 in damages….
John and Sandra Davis were married in 1979. John had two children from a previous marriage and had had a vasectomy. John testified that he had his vasectomy reversed in 1985. Two children were born during their marriage, Jared in 1987 and Becky in 1989. Both children were born in Louisiana, where the parties lived.
In the late 1980s, Horgan pursued Sandra and they began having occasional unprotected sexual intercourse. Both testified that the relationship was sporadic and sexual, not emotional. At some point during the 1990s, Sandra began to work for Horgan, and did so at various intervals during the 1990s. Sandra estimated that the last time she and Horgan had sexual relations was in the late 1980s or early 1990s. Horgan testified that the affair had ended, at the latest, by 1997 or 1998, when he did not see her any longer in a business capacity.
Sandra testified that the marriage between her and John was never good. But John testified that, in the 1980s, he and Sandra were happily married. He testified that he had no reason to believe that Horgan was interfering with his marriage in the 1980s. He further testified that, in the early 1990s, his marriage was good and that he had no reason to believe Sandra was having an affair. He further stated that their sex life was fine and that Sandra never seemed emotionally detached. He testified that he was shocked when Sandra left the marital home in 1999.
In 1999, John and Sandra separated, and their divorce was finalized in 2001. For approximately one year prior to the divorce, the family lived in Mississippi. Sandra was granted custody of the children, and John was ordered to pay child support in the amount of $838 per month. The divorce was finalized by a Louisiana court, but a Mississippi court decided custody and property issues. Sandra had filed an affidavit in the court stating that she and John were the parents of their two children. Sandra testified that John did not actually pay his child support, but that she never pursued contempt because she could not afford an attorney. Additionally, the children had trusts, which John emptied by selling the underlying assets and keeping the proceeds for himself.
In July 2018, John learned that Jared and Becky were possibly not his biological children. John's older daughter told John that Jared did not match with their family on 23andMe. Then, Becky and John took DNA tests, which showed that they were not related.
In July 2018, John called Sandra to confront her and recorded the telephone conversation. During a heated conversation, John asked Sandra how she knew Horgan was the father, assuming in the question that she knew. She said that she did not know for a few years, and then she saw that Jared looked like Horgan. John asked her again how she knew the children were Horgan's. She replied that she did not really know, but she saw that they resembled Horgan physically, and she never checked their biological origin.
Replying to John's questions regarding why she did not tell him, she responded that she "buried her head in the sand" and was scared. In the same conversation, John asserted that Sandra denied him sexual intercourse when she was having sexual relations with Horgan. The recording also indicated that John was frequently out of town. John also asserted more than once that Horgan's ex-wife was the "most" important person in the entire situation and must be told of the situation.
On August 24, 2018, John filed a complaint against Sandra and Horgan. He alleged fraud against Sandra and alienation of affection against Horgan, and he also alleged that Sandra and Horgan were jointly and severally liable for fraud, alienation of affection, intentional infliction of emotional distress (IIED), and outrageous conduct. He asked for damages for alienation of affection, for allowing him to support Jared and Becky, and for "deceiving [him] into believing that those children were his own to where he developed a loving and bonding relationship with said children[.]"
The court threw out the alienation of affection claim on statute of limitations grounds:
The elements of the tort of alienation of affection are: "(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss." "The claim for this tort accrues when 'the alienation or loss of affection is finally accomplished.'" … The Court of Appeals has held that the discovery rule does not operate to toll the statute of limitations in an alienation of affection case. The discovery rule provides that in actions "which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury."
A latent injury is defined as one where the "plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question … [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act."
"For an injury to be latent it must be undiscoverable by reasonable methods." "Although a clandestine affair is a secretive wrongdoing, it is not unrealistic to expect a plaintiff to perceive, at the time of the affair, the resulting harm—the loss of consortium through alienation of the spouse's affection." The Court of Appeals emphasized that, unlike in the abolished tort of criminal conversion, "the affair itself is not the harm." "In contrast, alienation of affection requires loss of affection or consortium, an interest that 'is personal to the [husband] and arises out of the marriage relation.'" "Because the injury is the detrimental change in the marriage relationship, it is reasonable for a spouse to discover the change in the marriage as it occurs." Consequently, it is not unrealistic for a layman to perceive the injury at the time of the wrongful act. Indeed, a spouse must "exercise reasonable diligence concerning the state of his marriage …." The "discovery of the affair is irrelevant to the question of when [the] claim accrued …." …
John "did not notice any changes or loss in his marriage during the time of the affair." We adopt the reasoning of the Court of Appeals and hold that the discovery rule does not apply to the tort of alienation of affection….
And because John didn't "did not submit a proper damages instruction" as to fraud or intentional infliction of emotional distress, the court declined to address any claims about those torts.
Justice Robert Chamberlin, joined by Justice Kenneth Griffis, concurred, "to call for the abolition of the antiquated common law tort of alienation of affection":
The tort of alienation of affection has its roots in the belief that women were the property of their husbands and, as such, the husband had a common law right of action against the person who stole away his wife's affection. As public perception of the status of women changed, so did the underlying policy of the tort. Women gained property rights, the right to recover damages for their own personal injuries, and they were no longer viewed as legally inferior to the men in their lives. The tort could no longer market itself as a man's right to compensation for the loss of his property. So, the tort hired a PR firm and rebranded. Now, it served to maintain and protect the integrity of marriages from outside interference and could be utilized by both partners in the marriage.
The long sought after marital harmony was not achieved by the significant rebranding of the tort. Instead, courts and legislatures in other jurisdictions began to recognize the tort as vindictive and punitive, promoting large settlements outside of court to avoid public disgrace as well as leading to large jury verdicts due to juries' inability to "dispassionately resolve the factual disputes in alienation suits in the same manner as other cases." …
Further, even under current logic, the recognition of the theft of affection by a third party incorrectly implies that affection is the property of another. Also lost in this analysis is that, regardless of how it is categorized, nothing has been stolen. The affection has been consensually bestowed upon the third party. It seems axiomatic that, for a spouse so inclined, even if "a would-be paramour would be thereby dissuaded [by the threat of suit], a substitute is likely to be readily found." "Human experience is that the affections of persons who are devoted and faithful are not susceptible to larceny no matter how cunning or stealthful." Or, to put it more mundanely, it takes two to tango.
In response to the quickly dwindling number of states that allowed the cause of action to be brought, the Mississippi Supreme Court doubled down, stating "[w]e believe that the marital relationship is an important element in the foundation of our society. To abolish the tort of alienation of affections would, in essence, send the message that we are devaluing the marriage relationship."
But abolition of the alienation of affection tort would not send the message that this Court no longer adheres to the belief that the bonds of marriage are a sacred and societal good; rather, it would declare that this Court is ready and willing to step into the twenty-first century, to get aboard the runaway train and to recognize that the harm this tort inflicts on not only marital, but familial relationships, far outweighs any perceived good it could possibly accomplish. "Our courts should not be in the business of policing broken hearts."
