Can't Sue In-Laws for "Undermining" Marriage and Thus Tortiously Inducing Breach of Marriage Contract

This used to be possible under the old "alienation of affections" tort, but all but a handful of states have abolished it, and the tortious inducement of breach of contract tort can't fill that gap.

So holds the Ohio Court of Appeals in S.E. v. Edelstein, in an opinion by Judge Stephen Powell, joined by Judges Michael Powell and Matthew Byrne. An excerpt from the factual allegations, in the lawsuit brought by ex-wife Kimberly (also representing her and ex-husband Elliott's daughter) against ex-father-in-law Max:

In the complaint, it was alleged that Max had intentionally interfered with the ketubah, the supposed [Jewish marriage] "contract" at issue in this case, by engaging in a continuous "campaign to undermine" Kimberly and Eliott's contractual relationship (i.e., their marriage) for nearly 20 years. The complaint alleged that this included Max being "emotionally abusive" towards Kimberly, as well as Max making "negative and derogatory statements" about Kimberly. This, according to the complaint, included Max criticizing Kimberly's "status as a convert to Judaism" and by frequently stating that Kimberly's and Eliott's children "were not Jewish." The complaint also alleged that Max, "with the intent to destroy the contractual relationship between" Kimberly and Eliott, routinely disparaged Kimberly to "persuade" Eliott to "terminate his contractual relationship with [her]."

The court concluded that, given the Ohio Legislature's abolition of the alienation of affections tort, "neither Max, nor any other person, could be held liable in civil damages to either Kimberly or S.E. for any breach of a promise to marry or alienation of affection," which is what the allegations amounted to.

The ex-wife is apparently a former magistrate and judicial staff attorney; as one might gather, this seems to be a high-conflict divorce that has led to a good deal of litigation (see, e.g., this federal court case).

Note that the high-profile alienation of affections cases have generally involved a lawsuit by an ex-spouse against the other ex-spouse's lover, and alleged adulterous sex—which could also be the basis for the misleadingly named "criminal conversation" tort—or at least romantic seduction. Indeed, such cases are still fairly common in North Carolina, and occasionally litigated in a few other states, such as Utah and Mississippi.

But the gist of the tort was improper interference with a marriage, and it wasn't limited to interference by other sexual or romantic partners. Interference by in-laws could indeed lead to liability in jurisdictions where the alienation tort was recognized, though courts then of course had to decide what was improper and what wasn't. Here's the most recent case I could find along those lines, Poulos v. Poulos (Mass. 1967) (Massachusetts didn't abolish the alienation of affections tort until 1985):

The plaintiff first met Peter Poulos, the defendants' son, in September, 1956. Peter told her that he was twenty-eight years old. The plaintiff, a divorcee and the mother of two children, was then aged thirty-one. Peter at that time was a student and shared an apartment in Boston with three other men. The plaintiff also lived in an apartment in Boston which she shared with another woman. In January, 1957, the plaintiff and Peter began 'going steady.' While the plaintiff was in Florida in early March, Peter sent her many letters expressing his love for her. They made plans to get married in May and Peter told the plaintiff that he would like to adopt her four year old daughter. On one occasion in the latter part of March the plaintiff and Peter had sexual relations.

On April 26, 1957, the couple applied for a marriage license in Hyannis, stating, which was not the fact, that they resided there. On May 2, they returned to Hyannis. On the following day, because the plaintiff believed she was pregnant, she and Peter consulted a physician, who confirmed her belief. Later that day they were married. They remained in Hyannis until Sunday, May 5, when they returned to an apartment in Boston which they had rented.

In the early afternoon of May 5, two days after the marriage, Peter stated that he was going to visit his parents and would return at 3:30 P.M. He left the apartment but did not return. After numerous calls to the defendants' home in Belmont, the plaintiff reached Peter by telephone at nine thirty that evening. During the conversation, which was admitted in evidence only to show Peter's state of mind, Peter said to the plaintiff, 'Kay, I'm never going to see you again. My family will not put up with this marriage, and you do as they have told you. You'll have to call dad's lawyer.'

Peter never lived again with the plaintiff, although he did make sporadic support payments to her. The plaintiff gave birth to a daughter, Mary Ann, in December, 1957. The first time Peter saw Mary Ann was in June, 1961, and he continued to see the child weekly until August, 1962. Shortly thereafter, in a conversation admitted only to show Peter's state of mind, Peter told the plaintiff that 'he was sorry, but … he was not going to see … (the plaintiff or Mary Ann) any more, that his father found out that he had been coming down to see Mary Ann and that he was wild about it … (Peter) was sorry and he said … '(T)hat's the way it's got to be, Kay."

[1.] We deal first with the count against Georgia Poulos, Peter's mother. The evidence against Georgia is as follows: On Saturday, May 4, 1957, the day after the marriage, the plaintiff and Peter were on the beach near the cottage where they were staying. Georgia appeared on the beach and said to the plaintiff, 'This marriage is a disgrace. We will let it ride and see what we can do about it.' She then said to her son, 'You must come home now. Your father wants to see you. You've got to come home.' After the plaintiff and Peter had returned to the cottage, Georgia again appeared and said to Peter, 'You must come home to see your father. He sent me down here to get you. You've got to come home.' Peter said, 'We'll come home when our honeymoon is over,' and Georgia left. She returned to the cottage seven times, however, to implore that Peter listen to her and go home to his father.

Later that day, Georgia called the plaintiff and asked her to promise that they 'would leave the next morning and have Peter come home to his father.' The next evening, when the plaintiff was trying to reach Peter by telephone at his parents' home, Georgia answered and told her not to call again and not to come to their home, and that Peter was going away with his father for a few days. 'You call our lawyer. This marriage is not going to be.' After that time, Georgia made no attempt to see or speak with either the plaintiff or Mary Ann. Georgia contends that this evidence was insufficient to show that her actions were motivated by anything more than a natural parental duty, or that her actions caused Peter to separate from the plaintiff.

In an action of this kind, it must be shown that the defendant intended to cause a separation between the plaintiff and the plaintiff's spouse. Proof that the defendant only gave honest advice is not enough. And because the rights and the corresponding duties of a parent are much greater than those of a stranger, stronger evidence is required to maintain an action against a parent…. 'It is proper for … (a parent) to give to his … (child) such advice and to bring such motives of persuasion or inducement to bear upon … (him) as he fairly and honestly considers to be called for by … (the child's) best interests.' Thus a parent in situations of this sort has a privilege.

But … 'The privilege is a qualified or limited one, similar to that found in cases of defamation, and it is forfeited when the primary purpose of the defendant is something other than the benefit of the … (child) such as ill will toward the plaintiff … or where the interference is reckless, without proper investigation, or 'from an ill regulated mind not sufficiently cautious before it occasions the injury.' In short the parents, while they are not required to be pleasant to … (their child's spouse), and are aided by a strong inference of proper motives, are privileged to interfere only to the extent that a reasonable man would do … under the circumstances.' And the burden of proving that the defendant acted from improper motives is upon the plaintiff….

The distinction between what a parent may do and say for what he believes to be for his child's best interest, on the one hand, and conduct that may be unreasonable or actuated by improper motives, on the other, is easier to state than apply. Often the good and improper motives of a parent may be closely related and both may be operative in inducing the separation.

What Georgia said and did may have been actuated by a desire to protect Peter from the consequences of a hasty and ill considered marriage. But her characterization of the marriage as 'a disgrace,' her repeated attempts (nine all told) to induce Peter to return home, and her activities in keeping Peter away from the plaintiff after he had left her, are evidence tending to show that she may have done more than was reasonable in the circumstances. A finding was warranted that Georgia acted with such aggressiveness and vehemence as to constitute an abuse of the privilege….

[As to George, t]here was testimony admitted without objection or limitation, that George sent Georgia to Hyannis on May 4, 1957, the day after the marriage, and that Georgia said to Peter on that occasion 'You must come home now. Your father wants to see you.' George testified that he had 'sent … (his) wife to the Cape for … (his) son.' And two days after the marriage Peter went to George's house and never returned to live with the plaintiff. There was also evidence that in the Barnstable Court House in June, 1958, George said to the plaintiff, 'Peter is not paying you any of this money …. You'll never get in our family and you'll never get any of our money or his money.'

The foregoing evidence shows that George was far from happy about Peter's marriage and sought to influence him to leave the plaintiff. And Peter's evidence as to his state of mind indicates that he was influenced by the attitude of both George and Georgia. Still, in the case of George, we are of opinion that his conduct was not such as to constitute such a serious abuse of the parental privilege as to destroy it….

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer to the Ohio case.