Remember the good ol’ days when a big political scandal was that John Edwards had fathered a daughter in adultery with a videographer on his 2008 presidential campaign while his wife suffered from cancer? We may not see such simple political times again anytime soon. Sigh. But we can still worry about whose fault it is when a marriage fails after a bout of adultery that leads to the conception of a child.
Then-wife of John Edwards, the late Elizabeth Edwards, told reporters that she might consider filing an alienation of affections lawsuit against her husband’s political aide, Andrew Young. The idea behind that lawsuit was her belief that Young was complicit in facilitating the affair—and it keeping it covered up sufficiently that it could go on unabated and lead to the birth of a child. This was never a strong potential case, but not because of any legal obstacle. North Carolina, like just a handful of other states, recognizes a cause of action for alienation of affections, which can be brought against any third party (paramour, stifling in-law, or other interloper) who causes marital estrangement. But it wasn’t clear whether Young’s behavior would meet that standard (he argued that his actions in concealing the affair were designed to protect Elizabeth and the Edwardses’ marriage). And certainly there were those who suggested Elizabeth should target the paramour directly, rather than a campaign aide who clearly did not have the same level of complicity, or her husband whose behavior was despicable at every turn. The suit was never filed. John and Elizabeth did separate, and she died in 2010.
Suits for the alienation of affections remain surprisingly common, even though only a few states allow them to proceed. Alaska has just joined the ranks of those that do not, ruling in Coulson v. Steiner, that a man could not sue his wife’s lover for alienation of affections. It left open, however, the possibility that he could sue the same man for other intentional torts relating to the same events.
An Affair to Remember
Juanita Omadlao and David Coulson were married in 2009. Four years later, she began a romantic relationship with another man, Aaron Steiner. Coulson filed for divorce about four months into this affair. Omadlao was pregnant at that time and sought interim spousal support from Coulson, representing in court papers that he was the father. She also claimed in those papers that she could not work due to pregnancy-related disability and that she would be left homeless without interim spousal support.
Shortly after Omadlao gave birth in February 2014, the trial court partially granted her request for support, ordering Coulson to pay $1,000 per month, as well as Omadlao’s birth-related medical expenses. He was also instructed to look into buying medical insurance for mother and child.
In March, Steiner and Omadlao ordered a paternity test for the child, which proved that Steiner was the biological father. The following month, Coulson requested a court-ordered paternity test, and the judge agreed that there was a “serious question about paternity of the child.” Neither Steiner nor Omadlao shared what they already knew—that Coulson was not the baby’s father. Coulson discovered that for himself after the new paternity test. The divorce proceedings continued, the interim support order was modified, and the parties reached a settlement. Shortly after the divorce became final, Omadlao and Steiner married.
The divorce decree was the end of the proceedings between Omadlao and Coulson, but the beginning of a new one between Coulson and Steiner—his ex-wife’s new husband. Coulson sued Steiner for alienation of affections—he stole Coulson’s wife away—and fraud/conspiracy/emotional distress for his role in concealing the child’s true paternity and helping Omadlao extract interim support from Coulson. An important question for the Alaska courts was whether the tort of alienation of affections is viable in the state. This is a fair question, given how obsolete the cause of action has become in most other places.
The History of Heart-Balm Laws
In earlier eras, most states recognized some or all of a collection of “heart balm” lawsuits, which provided remedies for the harm (and sometimes stigma) of a broken heart. For example, a woman could file a lawsuit for “breach of promise to marry,” if her fiancé called off an engagement. The harm that moved courts to recognize this cause of action was less her emotional damage, even if real, than her ruined chance at marriage. This was especially so if they had slept together or if she was pregnant, definitively ruining her reputation.
There were other causes of action that fell under the heart-balm umbrella. Wrongful seduction was a claim that could be made by a woman or father against a man who “seduced and debauched” her if she had been a virgin. The seduction was more or less presumed if she could prove chastity because such a woman would never have consented to be “ruined.” Criminal conversation is perhaps the oldest of the bunch, dating at least to seventeenth century England. The name is misleading, since the suit was about sex rather than conversation and was civil rather than criminal. It was a remedy for a man’s loss of his wife’s “consortium”—the sex and companionship she had provided before being seduced away. Intent and causation were irrelevant; proof of an extramarital affair was sufficient for the husband to be able to sue the paramour for damages.
Finally, alienation of affections was (and is) an action for interference with a marriage. It is broader than criminal conversation in that sex is not necessary to the claim. Anyone who destroyed the relationship between two spouses could be sued for “alienation of affections.” This claim, like criminal conversation, is made against the third party rather than the other spouse. This is the claim that Elizabeth Edwards had threatened against Andrew Young—and that Coulson brought against Steiner in the Alaska case.
The heart-balm actions flourished in the nineteenth and early twentieth centuries. Courtrooms were full of these cases, and juries often rewarded plaintiffs with handsome judgments—fueling even more claims. They always had critics, but they also supported and reinforced a system that tried hard to reinforce the necessity of good morals and the benefits of traditional marriage. They also protected women from the men who took advantage of them. In the end, though, the critics won out. Over the course of the twentieth century, states abolished heart-balm actions by statute. Images of women as weak, delicate, and in need of the law’s protection were supplanted by images of gold-diggers, blackmailers, and temptresses. Wily cads who seduced chaste women were replaced, in the public imagination, by gullible men with a lot of money.
By the end of the 1930s, nine states had abolished all heart-balm actions. Other states followed suit in the decades that followed, and courts began to abolish the doctrines as well. The social system that supported these laws crumbled; men and women cohabited, had sex, and even had babies before getting married. That precious margin around marriage lost its luster. But a handful of states clung to heart-balm. Alienation of affections has had the longest staying power, recognized today in five or six states. North Carolina seems to be the primary home for these lawsuits, with 200 or so filed a year. The legislature has made efforts to abolish it, but, instead, voted to keep it, albeit with some procedural restrictions. There have been several noteworthy verdicts in the 21st century from juries in North Carolina, with several damage awards over $1 million and one worth $9 million. The Supreme Court of Mississippi ruled in favor of retaining the cause of action for alienation of affections in 2007.
The Ruling in Coulson v. Steiner: Not This, But That
The trial court granted summary judgment to Steiner on the alienation of affections claim on the ground that such a claim is barred in Alaska on “public policy grounds.” The state’s supreme court agreed. Although I think the court’s description of the cause of action is not quite right—that it “originated from the common-law belief that wives were the chattel of their husbands”—they are probably right to reject the claim. The court noted that “changes in society’s conception of marriage, combined with attempts to limit damages and protect privacy,” explain the rush by sister states to abolish heart-balm actions, including this one.
Prior to this case, neither the Alaska legislature nor supreme court had expressly abolished alienation of affections. But the court had decided two cases that seemed to suggest that outcome. In one, Chizmar v. Mackie, a woman sued her doctor for the economic and emotional losses of a divorce after the doctor falsely told her husband that she had AIDS. The court held that losses “suffered as a result of a divorce are not recoverable.” The court recognized there that “divorce is never the direct result of actions by a third-party tortfeasor.” Indeed, the court continued, “it is the character of the spouses, and the character of the marriage itself, which determines whether a divorce will occur.” That reasoning can be applied without too much elastic to an alienation of affections claim. The essence of the claim is seeking a remedy for economic loss resulting from divorce, according to the court.
Alienation of affections is inconsistent with many family law developments of the last few decades. The very nature of the claim is that a third party had the power to kill a marriage—and exercised it. This is inconsistent with so many modern notions, but, particularly, one of the key ideas that led to no-fault divorce. Courts and legislatures thought it was artificial to blame one particular act of misconduct—say, one spouse’s adultery—as the cause of a marriage’s failure. Rather, the policymakers of the 1970s and 1980s recognized that marriages fail for a complex set of reasons. Sometimes adultery is the cause of the failure; sometimes it is a symptom. The same has to be said of the idea that an interloper was the cause of a spouse’s alienated affections. Perhaps the paramour entered the scene because the spouse had already withdrawn her affections from her spouse. Perhaps not. But is a judge or jury capable of figuring out the difference?
Although Coulson lost on his alienation of affections claim, the Alaska Supreme Court did not throw out his case entirely. Part of his claim was that Omadlao and Steiner conspired to make him believe that he was the father of Omadlao’s child and that Omadlao’s living conditions were such that she was in dire need of Coulson’s support while the divorce was pending. The court concluded that these claims did not allege harm arising from divorce, but rather from Steiner’s conduct during the divorce proceeding. Those claims of fraud, conspiracy, and intentional infliction of emotional distress survived summary judgment and were remanded for trial on the facts. He’ll have his day in court without resurrecting the ghost of heart-balms past.