While the documents stated it in esoteric legalese, Karen, her boyfriend Bill's ex-wife (The names in this case have been changed), was suing her for breaking up her marriage. She was accusing her of being a home wrecker, a coquette, a paramour who had stolen her husband and wrecked her family. And Susan was going to have to pay for it.
"I don't feel I've done anything wrong," said Susan, who is still involved in the ongoing lawsuit and denies all its allegations. "For me to fight this is going to cost a lot of money. If I settle, I'll look like I'm guilty of something. I'll be forever labeled. There's no real out. I'm just shocked by this whole thing. I didn't even know that these kind of laws existed."
Few people do.
The laws are called alienation of affection and criminal conversation, and they're used in lawsuits in which a spouse sues a third party for monetary damages based on allegations that he or she caused a viable marriage to end. The laws came to America from English common law. In the 19th century, many states adopted them, but as times have changed and the modern world has shifted our perceptions of love and commitment, most states have since abolished alienation of affection as a cause of action. Missouri became the latest state to do so in June, when the Missouri Supreme Court struck down the state's alienation of affection law, saying it was an antiquated cause that has no place in a modern legal system. The court's 5-2 decision stemmed from a 2001 case in which a Missouri woman sued another woman for reportedly having an affair with her husband. The woman cited alienation of affection as the reason for her lawsuit, and a jury awarded her $75,000 in damages from the defendant. The justices struck down the law and overturned the lower court's judgment. While they vary in how they handle these kinds of cases, over 40 other states have done away with the alienation of affection law, while some have retained criminal conversation as a cause of action (which deals specifically with extramarital sex). All of this has significantly curtailed such claims.
Today, both alienation of affection and criminal conversation are recognized in just eight states: Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, South Dakota, Utah and, yes, North Carolina. As a matter of fact, North Carolina's not just on the backslope of progress on this issue, we actually seem to be on the cutting edge of the legal payback for becoming involved with a married person. Here in the 21st century, there are still more than 200 alienation actions filed in NC every year.
Broken Hearts and WalletsThere are two main schools of thought concerning alienation of affection and criminal conversation laws. Critics say they're obsolete and outdated methods for legislating morality, a legal remnant from a time when women were considered little more than the property of their husbands. On the other hand, defenders say these laws can reflect a growing societal disaffection with overly permissive sexual standards, and help uphold the sanctity of the marriage vows, protect families and deter extramarital affairs through a formal legal sanction.
"This cause of action is all about context," said a Charlotte domestic lawyer who is representing Susan in her case. "And as a domestic attorney, you can be on both sides. There are certain situations where this law is very well utilized. If a stranger walks up to you on the street and slaps your face, you can sue that person for assault. You've been damaged. Can't you be damaged if someone has sex with your spouse?"
However, the attorney also says the law is overused, oftentimes as leverage in domestic cases. "Sometimes it's used as a kind of extortion tool during a divorce," she said. "What inevitably ends up happening is that someone who really shouldn't be sued is forced to expend money to defend themselves, which could cost anywhere from $10,000 to $40,000. Then the issue becomes, "Well, should I just offer to pay $3,000 or $4,000 to settle?' You come out better that way, but it's still crazy. You're forced to respond."
Seeing as how all but eight states have repealed alienation of affection laws, it's obvious most lawmakers feel the laws are no longer valid. The North Carolina House, in fact, has approved a measure doing away with it, but the bill is bogged down in the Senate and isn't expected to pass anytime soon. This means that sizeable damage awards remain a real possibility in North Carolina. In fact, many relatively high-dollar alienation cases have occurred here.
As long ago as 1926, for instance, a jury in Macon County rendered a verdict in the amount of $12,000 against the lover of a plaintiff's wife. A Rowan County jury awarded $30,000 against a husband's girlfriend in 1969. In 1982, our Court of Appeals affirmed a jury verdict in the amount of $25,000 in compensatory damages and another $25,000 in punitive damages. A 1990 Forsyth County jury award of $300,000 in punitive damages for alienation was sustained on appeal, even though the court struck the compensatory award for $200,000.
And more recently, North Carolina juries have become even more generous. In 1997 alone, they handed down $1.2 million against a female paramour in Forsyth County and awarded another jilted wife $1 million in Alamance County and a deceived husband $243,000 in Wake County. In late 1999, a judge in Durham County valued compensatory damages in a case brought by a husband against his wife's lover at less than $3,000 in compensatory damages but the judge still awarded $40,000 in punitive damages on the criminal conversation claim.
Family Values or RevengeFormer Davidson College wrestling coach Tom Oddo is the plaintiff in one of the state's largest and most high-profile alienation of affection/criminal conversation cases. Oddo sued Dr. Jeffrey Presser of West Palm Beach, FL, for having an affair with his wife. Oddo and his wife, Debra, had been married about 10 years when Debra called her old high-school sweetheart Jeff Presser (who was married at the time) in February 1999. A flurry of romantic emails followed, and they began an affair in March. Debra told her husband on March 29 that she wanted a separation, but Oddo didn't learn about the affair until the next month. Both Debra and Presser have since divorced their spouses and gotten married.
Oddo sued Presser, and in May 2001 a Mecklenburg County Superior Court jury awarded him $1.4 million. The jury found the doctor guilty of alienation of affection and criminal conversation. Last month, the NC Court of Appeals sent back the portion of the verdict that awarded Oddo compensatory damages ($910,000) for a new trial, saying a component of the evidence was speculative, and shouldn't have been allowed. The court, however, upheld punitive damages of $500,000. Oddo says he plans to continue pursuing the case.
Oddo, who still lives in Davidson, says he's slowly getting his life back together, but it's been a struggle. In an exclusive interview, he talks about why he plans to continue to pursue his lawsuit against Presser, and why he feels that a law many consider antiquated should stay on the books.
"In North Carolina there is a 12-month period where separated couples try to reconcile," Oddo said. "We never had that opportunity. Without the intervention of Presser, there may have been a very real chance to keep this family together (Oddo and Debra have three kids together). This particular law gave me an avenue to hold him (Presser) accountable for what he was doing. The case is going on five years now. I'm at the point now where I can't turn back. I plan to pursue this for as long as it takes. There has to be some accountability."
Oddo says that he is alarmed by the fact that a bill has been introduced in the state legislature to abolish these laws, and that if the bill is approved, it will be a real disservice to the institution of marriage and the concept of family values.
"Some say the law is frivolous and a lot of people file suit just for revenge, and that may be true, but that's true with all kinds of lawsuits," Oddo said. "It's up to the court system to throw out those cases that have no merit, and pursue those that are valid. In my case, the jury decided that Debra and I had a very real, viable marriage. Otherwise they wouldn't have come up with such a huge judgment and penalty. So there are a percentage of cases out there that this law helps and protects.
"It's disheartening when you've got all these legislators touting family values but then they're legislating the exact opposite," Oddo continued. "I think we're headed in the wrong direction when we start trying to get rid of these laws that protect marriages and support families. There has to be some accountability and recourse."
Stanley Brown, who is representing Oddo in his lawsuit against Presser, says he believes the laws have both pros and cons.
"They help to protect marriages and families by providing for some type of relief or consequence when someone intentionally destroys a family," Brown said. "In that sense, these claims can be a force supportive of moral standards. They provide a consequence when you violate those moral standards."
Brown agrees that the laws are sometimes misused as a negotiation tool during domestic cases between spouses, but disagrees with the criticism that the law treats women like chattel.
"The claim goes both ways," Brown said. "A husband can file a lawsuit against someone who has had an affair with a wife, and a wife can file suit against someone for having an affair with her husband. It deals evenly with both sexes. I'm not aligned with one camp or another. It's a matter for the legislature. They must decide whether or not the existence of these claims causes harm and does not operate to provide some support for the family units in this state."
Tom Bush, who is representing Dr. Presser in the lawsuit, says that while the laws may provide some deterrent to extramarital affairs, they have many drawbacks.
"These laws have become a burden to the judicial system," Bush said. "Most of these cases are filed in NC's Superior Court, which is inundated with criminal prosecutions and people with substantial injuries. These alienation cases clog the court docket. Second, they tend to be used primarily as bargaining power in domestic relations cases. Third, this law evolved from the concept that a woman was no different than a mule or tractor -- just a piece of property. So it weighs against the current notion as to the ability of woman to fend for themselves. Fourth, when a marriage breaks up, it's generally pretty difficult to say it was because an interloper came in and seduced away a spouse. When you get that far down the road that's usually a symptom of the disease, not the disease itself."
Bush adds that domestic relations courts already have a remedy in place for adultery. "If, under NC law, one spouse commits adultery during the marriage and the other does not, there is an automatic mandate that the supporting spouse must pay alimony," Bush said. "If it is the dependent spouse -- usually the wife -- she is barred by law from receiving alimony. So we do have a remedy. There are already provisions."
Guilty of LoveKaren and Bill met at a party through a mutual friend. They dated for about a year before they got married. Shortly after their three-year anniversary, they started to grow apart. Bill eventually moved out and got his own apartment. Karen said she was heartbroken.
"I felt so vulnerable and dependent and scared," Karen said. "I had a baby due in a few months; I loved him. I believed in our marriage vows. I wanted it to work so bad."
While he was married, Bill had hired Susan to work in his office, and the two became friends. Once Bill separated from his wife in 2001, he said he and Susan grew closer, became romantically involved in early 2002, and eventually moved in together.
"Susan and I just started hanging out," Bill said. "The funny thing about separation is all your friends divide. Susan was one of the few people I knew who didn't have a relationship with my ex. It was nice to have support on my side."
Karen contends Bill's romantic relationship with Susan began before they separated, a contention both Bill and Susan deny. Karen said that as it became increasingly evident to her that Bill had engaged in this other relationship, her attorney asked if she'd like to sue Susan under the alienation of affection law. Karen said yes.
"I filed the lawsuit because I felt like I was being stepped all over and bulldozed," Karen said. "I know it isn't all her fault, but she had full knowledge we were married. She knew I had a young child, and that I was pregnant. There has to be some consequences for her actions -- actions that she knowingly and willfully committed against me and my family and the institution of marriage. You can't just go around and ruin families without some kind of consequence. This law allows me to say what you did was wrong, and you're going to have to pay for it."
When Susan was served with the papers back in May, both she and Bill say they were shocked.
"It's so farfetched," Bill said. "It's easy for someone on the outside to look at our situation and say, "Oh, I know what's going on here. This guy took off from his marriage and two kids for a younger woman. Even my family felt that way for awhile. But that's just not what happened. But what are you supposed to do? Explain your life story to everyone you meet?
"Alienation of affection is the only law where a third party is held responsible for the actions of someone else," Bill continued. "Why doesn't she (Karen) sue my parents? They obviously didn't do the right thing bringing me up. Where do you draw the line? The whole thing is unfortunate. It would be nice to be able to put it all behind you. This just prolongs it and potentially drives a wedge between everybody. In the end nothing good comes of this."
Folks reading this no doubt fall into two camps -- one that thinks Bill is a selfish jerk and Susan is a home-wrecking shrew, and one that thinks sometimes marriages just don't work out, and Karen needs to move on with her life.
The (ostensibly) objective and sensible set of principles, rules and regulations that make up our laws have always been at odds with affairs of the heart, which are anything but objective and sensible. Love, lust, marriages, divorce -- they can all be emotionally loaded, traumatic, messy affairs. Many have compared the ordeal of divorce to experiencing the death of a family member. Can an injured spouse really be compensated for a lost marriage -- as traumatic as it may be -- by suing a third party, even if that third party is responsible? Do these laws protect marriages, or do they champion a bizarre view of self-responsibility that holds external forces responsible for the philandering spouse? And are such affairs of the heart really a matter for the court system to handle at all? The answer is yes as far as the NC court system is concerned, at least for now. And for Karen, that's good enough.
"My ex kept saying, "Oh, I'm so sick of you playing the victim,'" Karen said. "Well I'm sick of being a victim. It's time I stand up for myself, and this is a way I can do it."
Contact Sam Boykin at sam.boykin@cln.com or 704-944-3623.
Thou Shalt Not, Etc.How "love laws" work
By Sam Boykin
While criminal conversation and alienation of affection are often used in conjunction with one another, there are important differences. Criminal conversation is based on the allegation of sexual intercourse between the defendant and the plaintiff's spouse. Alienation of affection does not require proof of extramarital sex. However, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) the defendant's malicious conduct contributed to or caused the loss of affection. Equally important in alienation of affection and criminal conversation cases is the date of separation. NC courts state that conduct that occurs before the date of separation is relevant to these types of actions. This is because a claim of alienation of affection must prove that, among other things, the defendant's malicious conduct contributed to or caused the loss of affection in the marriage. The parties to the marriage must still be together in order to prove this claim.
It's important to note, however, that in alienation cases, conduct that occurs after the date of separation may also be considered by a judge, if that conduct corroborates the conduct that occurred before the date of separation. In criminal conversation actions, by contrast, post-separation conduct is even more important. Conduct which occurs after the date of separation can be considered by a court to not only corroborate behavior that occurred before the date of separation, but is enough on its own to maintain an action for criminal conversation.