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Alienation of affections tort mostly inapplicable in N.M.

By Alan M. Malott
For the Journal
          "He'll cheat without scruple Who can without fear."
        — Benjamin Franklin, 1743
        Q. I saw the news about a North Carolina jury award of $9 million against the girlfriend of a married man. Does New Mexico allow damage claims for interfering with a marriage ?
        A. You are referring to the Shackelford case decided last month. Cynthia Shackelford sued her husband's longtime girlfriend when the affair broke up their 33-year marriage. The husband was not a part of the suit or the award.
        Common Law, upon which most of American jurisprudence is based, recognized a cause of action for "alienation of affections." It was considered a "tort" or a civil wrongdoing for which the innocent party might seek monetary compensation. The act of alienation of affections was defined as " the wrongful or injurious act of interfering with an affectionate relationship so that one person loses affection for the other." Recognition of this damage claim arose from the concept that a wife was the property of her husband — I am just explaining the concept, not endorsing it — and, therefore, any action which drew the wife away from her husband was a taking of property for which damages could be recovered.
        Development of the law over the last 150 years or so has abandoned the concept that a wife is her husband's property, and the tort claim of alienation of affections fell into disfavor in the courts. Further legal evolution lead to recognition of claims for "intentional infliction of emotional distress" which might be applicable to adulterous behavior but which are based in the personal, emotional damage that may arise as opposed to the "spouse as property" concept.
        At this point, it appears that only about six states, North Carolina included, still recognize alienation of affections claims. News reports on the Shackelford case have indicated that New Mexico is one of the states which still recognizes "alienation of affection" but I think those reports are wrong.
        In 1999, the Court of Appeals of New Mexico addressed a case involving both emotional distress and alienation of affection claims by a husband against an old friend. It seems that Messrs. Padwa and Hadley were friends in the early 1970s, when Padwa confided that he was still very much attached to his ex-wife. Mr. Hadley then made a number of sexually provocative comments about the woman. Padwa ended the friendship promptly, though Hadley attempted to re-establish it from time to time without success.
        In 1994, Padwa relented and met with Hadley at his home. Here, Padwa told Hadley that he had initially moved on from his divorce over the years, even to the point of becoming engaged to someone else, but had ended the engagement and re-established his marriage in the year before the latest meeting with Hadley, though he had remained friends with his former fiancée. Shortly after this conversation, Hadley established a sexual relationship with both Padwa's wife and his ex-fiancée. Padwa learned of this and brought a lawsuit claiming that Hadley was a sexual predator who had caused him serious emotional damage.
        The court discussed Padwa's claims in context of the tort of intentional infliction of emotional distress, often also called the "tort of outrage." This tort applies where the defendant's conduct is "so extreme as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community."
        It was accepted that "a free and democratic society must tolerate certain offensive conduct as well as some obnoxious or morally deviant behavior" and that application of the tort of intentional infliction of emotional distress, or outrage, should be limited to only the most exceptional circumstances. Since Hadley and Padwa had only a casual friendship — although with a friend like Hadley, who needs enemies — the court found Hadley's conduct, balanced against issues of privacy, did not support Padwa's claim for damages. As a general rule, courts around the country have not applied outrage to consensual sexual relations amongst adults. Padwa's claim was dismissed.
        While the court's opinion focused on the tort of intentional infliction of emotional distress, or outrage, alienation of affections was not ignored. Instead, the Court of Appeals noted that our common law once recognized such a cause of action but it had been concluded, like many other states, the claim should be abolished. The court stated: "A spouse's love or a lover's companionship is not property that is subject to theft or trespass and plaintiffs in such suits do not deserve to recover for the loss of or injury to 'property' which they do not and cannot own."
        Under certain, very limited circumstances, it is possible that a claim by a cuckolded spouse may lead to a sustainable damage claim against either the spouse or the suitor under the tort of outrage, but it is hard to imagine a more clear statement that the old theory of "alienation of affections" itself will not be recognized as the basis of such a claim here in New Mexico. On the other hand, as a resident of North Carolina, perhaps former presidential candidate John Edwards has something to worry about.
        Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.

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