Zimmer, Duncan & Cole

Breaking the Ties that Bind: Alienation of Affections

This week, a couple of readers asked me to write about "that one lawsuit you file when someone steals your spouse." The claim is called "alienation of affections". We trace its roots to ancient property law.
For countless generations, women and children were viewed as the "property" of a man. They were on par with horses, plows, furniture, and grain. When a neighbor or stranger interfered with them, he was liable for money damages. Thus, the law once stated that a wife's body belonged to the husband and anyone who trespassed upon the husband's property by seducing his wife was liable for damages.
Over the years, most states have abolished this type of lawsuit. Many believed this type of claim had outlived its usefulness, because women were no longer considered property.
A handful of states clung to the old law, but found a new rationale for supporting it. These nine states believe (sensibly, perhaps) that these suits help preserve marriages by deterring wrongdoers.
To illustrate how this type of lawsuit works, let's look at an example.

In Veeder v. Kennedy, a Watertown banker (Mr. Myles Kennedy) promoted one of his employees (Julie Veeder), who was happily married (to Michael Veeder)

Mr. Kennedy and Julie began working closely together and developed a friendship. After three years, this friendship evolved into an illicit, romantic relationship, which was soon followed by Mr. and Mrs. Veeder's divorce.

In return, Mr. Veeder sued Mr. Kennedy for alienating the affections of his wife.
The evidence at trial showed that Mr. and Mrs. Veeder had a loving marriage before Mr. Kennedy came along. Julie showed Mr. Veeder affection "all the time" and the last thing each would say to the other when retiring for the night was, "I love you."

This evidence matched testimony of family and friends. The evidence at trial also indicated that Mr. Kennedy's existing marriage was itself the product of a previous affair with a then-married employee. In other words, the jury could infer that Mr. Kennedy had similar motives here.

Based on all of this, the jury concluded that Mr. Kennedy had indeed alienated Julie's affections for her husband.
For the loss of those affections, the jury awarded Mr. Veeder $265,000.
South Dakota allows a similar lawsuit for interference in another important relationship: the bonds and affection between parent and child. Similarly, this law traces its roots to the days when children were viewed as property, and it has evolved to protect more "modern" goals. Although kids aren't property, the parent-child relationship itself is still worth protecting.
This type of case is even rarer than those involving the alienation of a spouse's affections. Very few states permit this claim, and I could find only one case of its kind from our own state supreme court.
In Hershey v. Hershey, a man sued his ex-wife for destroying the relationship he had with his son. Following their divorce, Mrs. Hershey disappeared, remarried, and registered the son for school using her new husband's last name. Mr. Hershey was unable to find his ex-wife and son for fourteen years. They had no contact until after his graduation from high school. Eventually, Mrs. Hershey reappeared: when she brought a lawsuit against her ex-husband for fourteen years of back child support!

The Court frowned on Mrs. Hershey's claims, but it said it would allow Mr. Hershey to bring a lawsuit against his ex-wife to recover damages for alienating his son's affections.

The facts in this case were extreme: sabotaging and eliminating all contact between father and son for over a decade. However, the Court indicated it would also allow damages in less severe situations, with the hope that these suits would serve as "a useful deterrent to lawless conduct."

The idea of "deterrence" is important in the law. There are some things that money can't buy, including a healthy marriage or a loving child. But as long as juries are standing by to award damages when we make mistakes, all of us have an incentive to do whatever we can to avoid making those mistakes in the first place.

Have a question about the law? In this column, I explain recent court cases and answer your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108. I will try to answer as many as I can with as little "legal-ese" as possible.
Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.