Helsel v. Noellsch Case Brief

Katherine and David Helsel divorced in January 2001. In March 2001, Helsel filed suit against Sivi Noellsch for alienation of affection, alleging that Noellsch intentionally interfered with the marriage and caused it to fail.1 A jury returned a verdict in favor of Helsel. Noellsch filed post-trial motions in the trial court to abolish the tort of alienation of affection. The trial court declined. The issue before this Court is whether the common law tort of alienation of affection remains a viable cause of action in Missouri. Because alienation of affection is premised upon antiquated concepts, faulty assumptions, and is inconsistent with precedent, the tort is abolished in Missouri. The judgment is reversed.

I. History of the Tort

In order to ensure pure bloodlines and discourage adultery, the early Germanic tribes provided that men were entitled to payment from the wife’s lover so that the husband could purchase a new spouse. Hoye v. Hoye, 824 S.W.2d 422, 423-424 (Ky.1992); Bruce V. Nguyen, Note, Hey, That’s My Wife! — The Tort of Alienation of Affection in Missouri, 68 Mo. L.Rev. 241, 243, 244 (2003). As successors to the Germanic tradition, the Anglo-Saxons also provided a cause of action for men to recover for another’s interference with the marital relationship. The basis for this cause of action was that wives were viewed as valuable servants to their husband. Id. Later, early English common law established two causes of action, enticement and seduction, which are the precursors to the modern day torts of alienation of affection \*232and criminal conversation. Id; W. Page Keeton, et al„ PROSSER and Keeton, The Law op ToRts, § 124, at 917-918 (5th ed.1984). The purpose underlying both causes of action was to vindicate the husband’s property rights in his wife. Pros-ser and Keeton, supra, at 917-918.

Beginning with New York in 1864, almost every state in this country eventually established a cause of action for alienation of affection in which men, but not women, could vindicate their rights in the marital relationship. Prosser and Keeton, supra, at 918. In the late nineteenth and early twentieth centuries, most states, including Missouri, acted to equalize the legal status of wives by allowing them to sue in their own names. Therefore, the original justification for the tort, that husbands had a property right in their wives, was undermined. Hoye, 824 S.W.2d at 424. Nonetheless, the tort persisted, but with a new rationale. Modern courts came to justify suits for alienation of affection as a means of preserving marriage and the family. See Norton v. Macfarlane, 818 p.2d 8, 12 (Utah 1991); Thomas v. Siddiqui, 869 S.W.2d 740, 743 (Mo. banc 1994) (Robertson, J., dissenting).

II. Abolition

There are many persuasive reasons for abolishing the tort of alienation of affection. The tort is grounded in antiquated concepts of property interests in a spouse, is presently based upon the faulty assumption that it preserves marriages, and is inconsistent with this Court’s decision in Thomas v. Siddiqui, wherein this Court abolished the closely related common law tort of criminal conversation.

A. Antiquated Property Concepts

The original justification for the tort of alienation of affection lies in the antiquated concept that husbands had a proprietary interest in the person and services of their wives. Although modern courts no longer justify the tort of alienation of affection in these terms, the tort has remained fundamentally unchanged since its establishment in Missouri. The elements are the same. The defenses are the same. Because there has been no structural change to alienation of affection claims since its inception, the tort remains grounded in the property concepts that originally justified it. Hoye, 824 S.W.2d at 425, quoting, H. Clark, The Law of Domestic Relations in the United States, § 4.2, p. 267 (1987).

This idea “is perhaps better suited to an era that regarded one spouse as the property of another.” Hoye, 824 S.W.2d at 425, quoting Prosser and Keeton, supra, at 917. It has no place in modern jurisprudence.2

B. Faulty Assumptions

Even though the original property concepts remain inextricably bound to the tort, some still argue that suits for alienation of affection must be retained as a useful means of preserving marriages and protecting families. See, Norton, 818 P.2d at 12 (Utah 1991); Thomas v. Siddiqui, 869 S.W.2d at 743 (Mo. banc 1994) (Robertson, J., dissenting). While these are laudable goals, it is unlikely that suits for alienation of affection actually serve this purpose. Thomas v. Siddiqui 869 S.W.2d at 742 (Price, J., concurring). To the contrary, the opposite is likely true. Fundermann v. Mickelson, 304 N.W.2d 790, 791 (Iowa 1981); Nguyen, supra, at 253.

\*233First, suits for alienation of affection are almost exclusively brought after the marriage is either legally dissolved or irretrievably broken. Revenge, not reconciliation, is the often the primary motive. O’Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693, 697-698 (1986); 54 Am.JuR. PROOF of Facts 3d Proof of Alienation of Affections, § 6 (1999).

Second, by filing suit, the plaintiff is publicly acknowledging the intimate details that led to the breakdown of the marriage. The necessarily adversarial positions taken in litigation over intensely personal and private matters does not serve as a useful means of preserving the marriage. See Fundermann, supra, at 791-792; Nguyen, supra, at 253.

C. Consistency

In Thomas v. Siddiqui, this Court abolished the closely related common law tort of criminal conversation. The only difference between alienation of affection and criminal conversation is that criminal conversation requires proof of an adulterous sexual relationship. However, this difference in the elements of the torts does not provide a good basis distinguishing alienation of affection from criminal conversation because both torts simply represent different ways of interfering with the same relational interests. Skaggs v. Stanton, 532 S.W.2d 442, 443 (Ky.1975); Prosser and Keeton, at 919. Moreover, in reality, criminal conversation and alienation of affection are typically alleged concurrently as the conduct at issue almost always involves adultery. Prosser and Keeton, supra, at 917-918. If a spouse cannot recover because of an adulterous affair under a criminal conversation theory, a spouse should likewise be barred from recovery by simply attaching the moniker of “alienation of affection” to the petition. Consistency demands that the tort of alienation of affection be abolished as was the tort of criminal conversation. See, Thomas, 869 S.W.2d at 742 (Price, J., concurring).

III. Conclusion

When the reason for a rule of law disappears, so to should the rule. Thomas, 869 S.W.2d at 741; State ex inf. Norman v. Ellis, 28 S.W.2d 363, 368 (Mo.1930). The tort of alienation of affection can no longer be adequately justified. The original property concepts justifying the tort are inconsistent with modern law. The modern justification that the tort preserves marriages is a fiction. This Court has abolished the closely related common law tort of criminal conversation. Thomas v. Siddiqui, 869 S.W.2d at 742. As the tort of alienation of affection was created by the courts, it is within the province of the courts to abolish it. See, Thomas v. Siddiqui, 869 S.W.2d 740, 741 (Mo. banc 1994); Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599, 605 (Mo.1969). The tort of alienation of affection is abolished in Missouri.3

The judgment is reversed.