Law Leaves Jilted Lovers Out in the Cold

We just celebrated Valentine’s Day, always one of my favorite "holidays."

Between my wife, my daughters, my mother, my mother-in-law, my sister, my nieces and a host of other valentines, there is a lot of affection to go around.

But this column is about those who are still reeling from "post-mortem" Valentine’s Days, those who are suffering from alienation of affection after they get dumped. The legal concept has been in the news lately with former partner of Ellen DeGeneres threatening a lawsuit against the woman who stole the talk show host’s heart. In Illinois, fallout from tangled relationships made headlines when former Congressman Mel Reynolds filed a lawsuit against his estranged wife’s lover. The case was later dismissed at Reynolds’ request.

Last November, a lawsuit was filed in Cook County Circuit Court by a Chicago man who alleged that he would have a happy marriage today had not a fire department lieutenant, thrice divorced, "set out to destroy the marital relationship by seducing the Plaintiff’s wife." He suffers "great mental suffering and anguish," depression, "devastation and suffering." Cyl v. Ballman, 2004 L 012118 (2004). The court is considering a motion to dismiss.

Illinois is one of the few states that still recognizes the tort, but it really is one without any teeth. 740 ILCS 5 (1990). In order to recover, one must prove actual damages, but the statute and case law have virtually wiped out the meaning of any money damages. The statute states the following elements shall not be considered: mental anguish, injury to feelings, shame, humiliation, sorrow, mortification, defamation, injury to the good name and character of the plaintiff or dishonor to the plaintiff’s family as a result of the alienation of affection.

What does that leave? Virtually nothing, according to Bernard Rinella, the dean of family law, having practiced for more than 40 years in Chicago. He has not brought an alienation of affection lawsuit in decades, he said. Although many jilted spouses and lovers want to recover for their loss of affection because a third person comes in an spoils a happy home, Rinella tells them the statute is one that needs changing.

Granted, in the past, the statute may have been invoked unscrupulously at times by the vengeful, but public policy promoting morality and a strong family unit also needs to be considered. Should there not be consequences for ruining a good marriage? I think so, and nine states also think so.

Two North Carolina juries thought so in separate cases where seven-figure judgments were awarded. The press speculated that husbands would be coming home from work on time after a jury awarded a wife and mother $1 million after recently divorced secretary stole her husband of 17 years. Hutelmyer v. Cox, 96 CVD 464 (N.C.Ct.App.1999).

In another case, a college wrestling coach in North Carolina was awarded $1.4 million after he proved that his health and career were harmed because of his wife’s rekindled romance with her junior high school sweetheart. The case went to the Supreme Court of North Carolina, which affirmed monetary damages, including recovering the minor children’s college tuition benefits. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004).

But for years, Illinois courts have consistently denied monetary damages under the statute. Kniznik v. Quick, 130 Ill.App.2d 273, 264 N.E.2d 707(1st Dist.1970). Even loss of consortium damages have been excluded for lack of definitiveness. Id., at 280. Granted, it is a difficult issue to consider: "We must determine whether [the spouse’s love and affection for the plaintiff] just drifted away, whether [the spouse] voluntarily floated them away or whether the defendant pirated them away. The liability of the defendant must rest on the last of the three alternatives." Farrier v. Farrier, 46 Ill.App.2d 471, 197 N.E.2d 163 (4^th Dist.1964).

Instead, what may be an alternative solution – until the legislature solves this dilemma – is to bring a claim for intentional infliction of emotional distress. In Illinois, three necessary elements must be fulfilled to be successful. First, the conduct must be truly extreme and outrageous. Second, the actor must have either intended that the conduct would inflect severe emotional distress. Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities do not qualify as outrageous conduct. Feltmeier v. Feltmeier, 207 Ill.2d 263, 798 N.E.2d 75 (2003).

In Feltmeier, the Illinois Supreme Court held that an ex-wife was allowed to bring an action for intentional inflection of emotional distress against her husband for spousal abuse. To promote marital harmony and peace, the court recognized that certain behavior should not be protected. It held that, "The nature of the defendant’s conduct must be so extreme as to go beyond all possible bounds of decency and to be regarded as intolerable in a civilized community." Id., at 270. Monetary damages were ruled to be allowable.

I am not endorsing that intentional inflection of emotional distress become the standard bearer of the "First Wives Club," the movie about middle-aged women who try to get even with their ex-husbands when they are dumped for younger women. But what is our society saying when a cause of action exists against an interloper who takes a swing at someone, even if he misses, yet little to no recourse is available if that same person destroys a marriage?

Alienation of affection statutes can work to preserve the family, discourage adultery and help put greater value on a marriage.