Theodore P. Funderman v. Gordon Mickelson, 304 N.W.2d 790 (Sup.Ct.Iowa 1981)

CASE: Man sue's ex-wife's lover for alienation of his wife's affection.

FACTS: A man sues his wife's lover for alienation of affection.

HOLDING: Alienation of affection is abolished as a cause of action in Iowa.

RATIONALE:

• Suits for alienation of affection are useless as a means of preserving a family and demean the parties and the courts.
• Juries cannot dispassionately wade through the evidence to determine whether the marriage breakdown or the misconduct came first.
• The theory of alienation of affection is rooted in the idea of wives as property.
• The affections of people who are devoted and faithful are not susceptible to larceny, no matter how cunning or stealthful.
• A married person who has become inclined to philander is not likely to be dissuaded by the threat of an alienation suit, nor is the marriage likely to be saved out of fear of such a suit.
• There is an unmistakable trend away from allowing alienation suits.
• It is the duty of the court to abandon antiquated doctrines and concepts, not the legislature.
• Abolishing the right of recovery under alienation of affection is not inconsistent with the affirmation of the right to recover for loss of consortium; the right to recover for loss of consortium is a factor in assessing damages when underlying liability has been established in a personal suit, while renunciation of the right to recover for alienation proceeds from the belief there is not basis for the underlying claim.

DISSENT: Juries are as capable of deciding alientation cases as any other type of case entrusted to them.

INTERESTING TO NOTE: According to the July 1999 issue of Trial magazine, 39 states have abolished alienation of affection as a cause of action, five judicially, including Washington in Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980), and that alientation of affection remains a legitimate cause of action in nine states (South Dakota, Illinois, Hawaii, Missouri, Mississippi, New Hampshire, New Mexico, North Carolina and Utah). Ohio has statutorily denied money damages for the cause of action, Louisiana has never accepted alienation of affections as a cause of action and Alaska does not have a statute or case law addressing the cause of action. It cited Veeder v. Kennedy, 589 N.W.2d 610, in which the Supreme Court of South Dakota upheld a $265,000 award to a husband against his wife's lover (including $200,000 in punitive damages).

THE SKINNY:

States (plus D.C.) which have statutorially abolished alienation of affection:
1. Alamaba
2. Arizona
3. Arkansas
4. California
5. Colorado
6. Connecticut
7. Delaware
8. District of Columbia
9. Florida
10. Georgia
11. Indiana
12. Kansas
13. Maine
14. Maryland
15. Massachusetts
16. Michigan
17. Minnesota
18. Montana
19. Nebraska
20. Nevada
21. New Jersey
22. New York
23. North Dakota
24. Oklahoma
25. Oregon
26. Pennsylvania
27. Rhode Island
28. Tennessee
29. Texas
30. Vermont
31. Virginia
32. West Virginia
33. Wisconsin
34. Wyoming

States which have judicially abolished alienation of affection:

1. Idaho (1986)
2. Iowa (1981)
3. Kentucky (1992)
4. South Carolina (1992)
5. Washington (1980)

States in which alienation of affection is a viable cause of action:

1. Hawaii
2. Illinois
3. Mississippi
4. Missouri
5. New Hampshire
6. New Mexico
7. North Carolina
8. South Dakota
9. Utah

Ohio does not permit monetary recovery for alientation of affection (by statute), Louisiana never recognized it as a cause of action and Alaska does not have case law or statutes which clearly address the issue.

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