Divorce often comes hand-in-hand with messy civil court wranglings — over property or child custody, for example.
But less frequently, spurned lovers in Utah go to court not against the ex-spouse but against the people they see as responsible for driving a wedge in their once-happy unions. For instance:
When Jason Miles Williams, a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, lost his wife to divorce, he sued the church's leaders, claiming they caused his marriage's breakup by telling his ex-wife she could not achieve salvation so long as she remained married to him. His $10 million lawsuit was dismissed in 2000.
Janice Peck sued the Utah Division of Wildlife and one of its female agents when her husband, a division agent, left her for the female agent. The two agents had posed as a married couple on a division assignment to catch moose and elk poachers.
And Utah radio personalities Erin Frasier and Todd L. Collard, of former station KISN-97's "Fisher, Todd and Erin Show," were sued by Collard's ex-wife, Suzanne Collard. She claimed Frasier stole Collard away by enlarging her breasts and changing her hair to look more like Suzanne Collard. (The two radio personalities were later married.) The case was settled in 1996.
Such cases rely on a civil tort known as "alienation of affections," and Utah is one of only seven states that still allow this kind of suit.
If your in-laws don't like you and say so to your spouse, you can sue them over any resulting divorce. If your spouse cheats and then leaves you, you can sue the other woman or man. Clergy, doctors, therapists and others also have been targets of alienation-of-affections suits, based on the advice they gave the unhappy partner.
In 1983 and again in 1991, the Utah Supreme Court upheld the right of residents to sue for alienation of affections. But Justice Christine Durham — the only current Utah justice who was on the court in 1991 — dissented in both opinions, calling the tort "an anachronistic holdover from a bygone era, which modern rationalizations have failed to justify" in her dissent in the 1983 case.
Originating in common law from the days of feudalism, the alienation-of-affections tort was first designed to protect a man's interest in protecting his wife as property and as a political or military asset. It was abolished in England in 1857 by the Matrimonial Causes Act, but it remained, at least for a while, in the United States. Only Louisiana never accepted it.
In 1898, the Married Woman's Act gave American women the ability to sue or be sued, and the act set in motion state-by-state changes in alienation-of-affections laws. Some state legislatures abolished the tort as a cause of action; in some, the judiciary did away with the provision. Other states expanded the tort to allow women to sue for alienation of their husbands, instead of granting the right only to husbands.
Modern use of the tort is based on the emotional and sexual elements of marriage instead of the financial elements. Still, much of the nation has found the tort to be antiquated and no longer useful.
"Although we speak of the marriage 'contract,' it has been centuries since marriage has involved true contract principles in Western cultures," Durham wrote in 1983. "The purposes of marriage are not pecuniary. In our society, it is now widely accepted that men and women enter marriage to seek personal fulfillment and happiness." Devotion and commitment, she wrote, "are personal and perhaps moral obligations but not legal obligations."
But supporters of such suits say they protect the sanctity of marriage.
"The gist of the tort is the protection of the love, society, companionship and comfort that form the foundation of a marriage and give rise to the unique bonding that occurs in a successful marriage," the Utah Supreme Court's majority wrote in its 1991 opinion.
Alienation-of-affections suits raise some difficult questions for judges and juries. One such problem, the 1991 opinion pointed out, is determining just how much money the pain and loss are worth. Additional punitive damages are also allowed in such cases.
Another difficult question is whether the defendant's actions were the primary cause of the death of a marriage. The Utah high court has said that an extramarital affair, clerical advice or other marital interference that simply coincides with other weaknesses in a faltering marriage are not cause enough to bring suit.
That wasn't always the case.
Until 1991, a similar but separate tort was available to heartbroken litigants. That cause of action, known as criminal conversation, specifically allowed suit over extramarital affairs. The court abolished criminal conversation suits in the same 1991 opinion in which it upheld alienation of affections, saying it is unfair to hold one person accountable in a tryst that involved two willing parties.
Hard data is not available because court administrators do not track causes of action in civil suits. But by all accounts, alienation-of-affections cases are very rare in Utah's courts. 1983 was the first time in about 50 years that the state's high court took up the issue, and it hasn't dealt with the issue as such since 1991.
However, a current case in the court system could bring the issue back to the forefront.
The Supreme Court on June 22 upheld an appeals court decision overturning the dismissal of an alienation-of-affections case based on statute-of-limitations questions. Suzanne Dowling sued Kathleen Bullen, a family therapist who had been counseling Dowling and her husband, James Hoagland Jr., until their divorce. The suit alleges Bullen and Hoagland began an intimate relationship during counseling.
The case has been sent back to the trial court, and Bullen's attorney, Phillip S. Ferguson, said that if Dowling is successful in her suit he expects that he will take up the issue with the Supreme Court.
"We're in the posture now of taking the matter to trial and putting the plaintiff to her proof. I frankly don't think she can prove her case," Ferguson said. "If she fails at trial, I suspect the case is over and everyone will go home and move on with their lives. If she succeeds in proving up alienation of affection, then we would be in a position to challenge whether it's a legitimate cause of action."
And Ferguson said he is somewhat optimistic that, in such a situation, he would succeed in seeing Utah's alienation-of-affections tort come to its end, especially since Durham is now chief justice and the only justice on the court left over from 1991.
"She's a fairly strong personality," he said of Durham. "She's made some good arguments for why it's a stupid claim. It's grounded in property rights: The man owns his wife. It's like stealing property, and that notion is not really a valid notion in society these days."
As an attorney who specializes in representing people in the mental health field, he said he has handled "a handful" of alienation-of-affections cases. His clients often deal with people whose marriages are already having "serious issues," he said — but it is still rare to see such suits. Those he has seen, he said, tended to revolve around marriages that could not easily have been saved in any case, so the argument that such suits protect the sanctity of marriage rings hollow to him.
"It has been my experience in handling some of these cases over the years that it's a very poor vehicle for preserving the institution of marriage. There are other ways that are more effective. It's a difficult cause of action to prove. It's kind of a distasteful approach," he said. "It's almost always the case that the spouse who gets alienated is in a weak or crumbling marriage to start with. You often have a relationship that is already so rocky or so damaged that there was almost no hope of saving it. It's essentially gone. An alienation-of-affections claim is sort of a last gasp for trying to say to the world, 'Well, there was hope for my marriage until so-and-so came along and interfered.' "
And unlike other civil actions, such as personal injury or breach of contract suits, alienation-of-affections suits do not serve the purpose of returning the wronged party to a better situation.
"It has a very strong flavor of vengeance," he said. "It doesn't preserve marriage. The most it can do is give money to the spouse that lost out."
E-mail: dsmeath@desnews.com