West Virginia High Court: Statutory Prohibition on Alienation of Affections Lawsuits Bars Adultery, Criminal Conversation Torts

The Wall Street Journal Law Blog reports on the case, Golden v. Kaufman:

The dispute before the West Virginia Supreme Court of Appeals centered around a cuckolded husband who accused an insurance salesman of having an affair with his wife to induce her into purchasing an annuity. He sought over $500,000 in damages. 

The issue before the justices had to do with the distinction between two types of matrimonial tort claims — criminal conversation and alienation of affections. Both are common-law causes of action that allow an aggrieved spouse to sue somebody for wrecking a marriage. 

But while criminal conversation involves claims of adultery, the latter one doesn’t necessarily entail extramarital sex. Claims of alienation of affections can be brought against anybody — including family members — who maliciously caused a happy marriage to unravel. 

. . . 

In a 4-1 ruling on Monday, which was reported by the Charleston Gazette, justices concluded that despite the law’s silence, the statute could still be interpreted as having abolished the adultery tort, leaving the plaintiff with no grounds to sue the man he blames for his divorce.

The majority opinion is available here, and the dissenting opinion is available here.

As I explain in much more detail here, torts of alienation of affections and torts for adultery and criminal conversation can be distinguished since alienation of affections actions does not necessarily need to involve sexual conduct between the defendant and the plaintiff's spouse. West Virginia's law of alienation of affections was no exception to the rule. The majority briefly describes the elements of the tort:

A cause of action for alienation of affections consists of three elements: wrongful conduct of defendant, plaintiff’s loss of affection or consortium with the other spouse, and causal connection between such conduct and loss. W.Va. Code, 56-3-2a, abolishes all such suits for alienation of affections.

As an aside, I am a bit hesitant to quote the Court's statement of the elements since the Court points out that it is quoting this selection from a syllabus note in an earlier decision. I have been told that one should never do this in writing a brief, and I thought that the same rule applied to opinion writing. And I'm not sure why the Court would quote a syllabus note rather than the portion of the earlier case that discusses the elements. But that's all beside the point.

The Court here holds that alienation of affections and criminal conversation and adultery actions are substantially similar, and that the statute prohibiting alienation of affections lawsuits should be read to cover criminal conversation and adultery. I take issue with this conclusion, since the torts do involve different elements. For example, a plaintiff can successfully sue for alienation of affections but not for criminal conversation if the defendant wrongfully caused the the plaintiff's spouse to leave, say through talking down the plaintiff or bribing the other spouse. A plaintiff could succeed in a criminal conversation action if the defendant had sex with the plaintiff's spouse, even if the plaintiff's spouse did not leave the plaintiff.

The Court argues that criminal conversation is "inexorably linked" to alienation of affections in this part of its analysis:

In support of his argument that criminal conversation and alienation of affections are not substantially similar and should be treated differently, Mr. Miller relies on this Court’s statement in Kuhn, supra, that there is a slight distinction between the two torts. The Court in Kuhn noted that criminal conversation requires adultery to be shown. 141 W.Va. at 42, 87 S.E.2d at 536. However, the Court also stated that “in an action for criminal conversation a physical debauchment of plaintiff’s spouse is a necessary element and the alienation of affections thereby resulting is merely a matter of aggravation.” Id. (emphasis added). Thus, the two torts are inexorably linked: a plaintiff attempting to prove criminal conversation is doing so to demonstrate the alienation of his/her spouse’s affections that resulted from the adulterous act.

Here, the Court mischaracterizes what it said in Kuhn v. Cooper, and it even quotes the passage from Kuhn that hints that its interpretation is a mischaracterization. Here the full selection from Kuhn which juxtaposes alienation of affections and criminal conversation:

Alienation of affections is distinguished from an action for criminal conversation. In an alienation of affections action, if only enticement or artifice is shown, malice must be proved to warrant a recovery. But, if adultery is proved, such proof dispenses with the necessity for proving malice. Alex v. Strickland, 111 Okl. 267, 239 P. 596. 

In an action for criminal conversation a physical debauchment of plaintiff's spouse is a necessary element, and the alienation of affections thereby resulting is merely a matter of aggravation. Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808.

By indicating that alienation of affections is "merely" a matter of aggravation, the Court is noting that criminal conversation only requires proof of sexual conduct, and that alienation of affections is not a necessary element of the tort. A plaintiff may well desire to prove alienation of affections, since this would probably help the plaintiff get more damages, but a plaintiff doesn't need to show alienation of affections in order to have a prima facie case for criminal conversation.

I think I have made it pretty clear in previous posts here and here, that I think that alienation of affections laws are archaic and harmful. I think that the Court does an admirable job of explaining this and detailing the gradual decline of the tort in most states. But while I agree with the result of the case, I think that the Court arrived at its conclusions through strained reasoning.