An ancient wrong and the Constitution
The age-old wrong of stealing another man’s wife — “alienation of affection” — is still recognized in six states, while being wholly or mostly abolished in 31 others. It traces its origins back at least to the Teutonic tribes of early Germany in the 10th Century. Now, a well-to-do businessman from Mississippi, facing a verdict of $754,500 for “alienating the affections” of the wife of a plumber, is asking the Supreme Court to impose a constitutional ban on such verdicts at least when they are used to punish the forbidden conduct. Asking for a stay of a Mississippi Supreme Court ruling upholding the full verdict, Jerry Fitch, Sr., of Holly Springs, Miss., plans to file his formal appeal this week. Although he tried to undo the entire damages award in state court, his appeal to the Supreme Court challenges only the $112,500 portion of the verdict that a jury awarded as “punitive damages.”
Fitch’s application for a stay is docketed as 07A324, Fitch v. Valentine. It is pending before Justice Antonin Scalia, as the Circuit Justice for emergency matters arising in Mississippi and other states of the Fifth Circuit. This case, it asserts, “presents an important question of Constitutional law.” The stay application can be downloaded here.
The claim is that the Constitution’s guarantee of due process forbids “state sanctioned punishment of extramarital conduct part and parcel to a loving relationship.” The punishment part of the verdict against him, the document contends, is an “arbitrary deprivation of property” because it is “based on a presumption of malice arising out of otherwise lawful conduct.”
The application stresses that Fitch is not claiming there is “a Constitutional right to adultery,” and that he “is not urging a prohibition on all attempts by the state to foster traditional forms of marital relationships.” It contends that “short term sexual liaisons, lacking the hallmarks of a deep intimate interpersonal component may be subject to state interference justified by less compelling reasons than should be manifest here.” Fitch noted that he married the woman involved, Sandra Day (formerly Sandra Valentine, now Sandra Fitch). While their relationship was “adulterous at the start,” the application says, “there was never any proof adduced that Mr. Fitch had no real affection and love for Sandra during the relationship.”
Sandra Day and Johnny Valentine, a plumber, had what apparently was a rocky marriage, with repeated complaints by her about gambling and drinking. They were still married when she went to work for Jerry Fitch, who has interests in the oil and real estate businesses in Marshall County and, according to the state Supreme Court, has a net worth of about $22 million. After Sandra became pregnant, Johnny Valentine grew suspicious, and when a daughter was born, had a test done that showed he was not the father.
He filed for divorce, and it was granted, on grounds of adultery. He sued Fitch in state court in December 1999, arguing that the marriage was normal until Sandra began working for Fitch. Fitch initially denied having sexual relations with Sandra, being the child’s father, or giving money to support the child. In later court filings, he admitted the relationship and his parentage. The jury in the case ruled for Valentine, and awarded $642,000 in compensatory damages and $112,500 in punitive damages. That is the amount Fitch now owes, plus 8 percent annual interest, if the verdict is not overturned.
In upholding the verdict in full, the Mississippi Supreme Court spent little effort on the constitutional due process claim. Initially, it said Fitch had not properly raised the issue, but it went ahead and considered it on the merits, and rejected the challenge. The procedural flaw “notwithstanding,” the state court said, “this Court has consistently recognized punitive damages as a legitimate form of relief in alienation of affections cases.” (Along the way, the state Supreme Court rejected a plea by Fitch, which he does not renew in his Supreme Court challenge, to abolish the common law tort of alienation of affections as outdated.) The Mississippi Supreme Court ruling on the dispute, which it called “a classic ‘he said’/’she said’/'the paramour said’ case,”, can be found here.
In his stay application, Fitch contends that the Supreme Court left open the punitive issue he is now raising when the Justices, in 2003, decided the case of Lawrence v. Texas, barring criminal prosecution for homosexual conduct between consenting adults in private. But the Court’s precedents, he argues, have “long recognized the personal liberty interests in jeopardy when a state actively interferes in the consensual adult sexual activity of its citizens.”
Whether any affection was actually alienated is a fact question, unless these facts are so obviously not alienation that no rational juror could find such. Still seems like a question of state law.
Comment by Jacques MacKenzie — October 23, 2007 @ 7:28 pm
If I understand the history of the case correctly, the jury decided that the woman in question was Valentine’s Day.
Comment by Peter Goldberger — October 24, 2007 @ 12:16 am
Intriguing case, from the facts of the case as presented in the Mississippi Supreme Court, I am surprised that the jurors concluded that it did.
As far as I can tell,the evidence that he lured her and caused her to alienate her affection for him is circumstantial at best.
But back to the constitutional issue, I guess it’s up to Justice Kennedy again, can states punish adultery? More over, can it punish one party of an adulterous affair and leave the other one alone?
Out of curiousity, what are the stats on cases like this in the 6 states that practice this law?
Because I can envision plenty of claims coming from the wife claiming that the “other” woman alienating affection of their husband by luring their husbands by being younger, more beautiful.
Comment by Chee Foong Chew — October 24, 2007 @ 4:56 am
There is absolutely no chance the Court will take the case. Prurient interest aside, the issue is not one of national importance, there is no split, and the federal constitutional question was barely raised and addressed below. Not to mention, this is not an issue of criminal law, as in Lawrence, but of state tort law. This is one of those silly cases that people get excited about because of the subject matter, but it’s clearly not certworthy. Look for a quick deny when it comes up on the docket, and certainly no stay from the Court in the meantime.
Comment by Sar Atchinson — October 24, 2007 @ 5:17 am
I seriously doubt that the enactors of the Due Process clause intended it to negate state laws re adultery, so IMO the court should not take this guy’s appeal. there’s no federal issue her.
Comment by Stephen Jaros — October 24, 2007 @ 8:32 am
This seems like more of a last-ditch appeal than a meritorious one. The facts are juicy, but in the end there is no constitutional law question here.
The “alienation of affection” claim seems ultimately like a “tortious interference with contractual relations” claim to me. Marriages are very contractual in nature — Jewish marriages are explicitly so. Seems like a straightforward state issue.
Comment by James N. Markels — October 24, 2007 @ 8:47 am
This is a trivial family-law case compared to the ones the Supreme Court rejects all the time.
For more weighty cases get turned away without explanation.
The court turned away a case involving a Texas man forced to pay child support for three children who weren’t biologically his (his wife cheated, but the kids were deemed his since they were conceived during the marriage), and yet denied any right to visit those children, effectively denying him his 14th Amendment parental rights while imposing on him parental obligations.
The federal courts also turn away cases involving men jailed for not paying child support that they cannot afford to pay, after hearings in which they were denied the right to counsel (never mind that criminal defendants facing jail are entitled to counsel under Gideon), misapplying abstention doctrines.
(For those who ask why someone would get a divorce if they can’t afford child support, I would point out that it is usually the custodial parent who seeks the divorce — wives initiate two-thirds of all divorces — and in many states, like Massachusetts, child support awards for middle-income families substantially exceed what such families actually spend on raising their children).
There’s a classic circuit split making a grant of certiorari appropriate, since the state appellate courts are split over whether or not civil contemnors like child support obligors are entitled to appointed counsel before being jailed. (See, e.g., the Washington State Supreme Court’s Tetro decision).
But the justices haven’t shown any interest in the past in resolving that split.
Nor have they shown any interest in enforcing their own 1979 decision in Orr v. Orr, that family law decisions such as awards of alimony are supposed to be gender neutral.
Family law is pervaded by gender bias against male litigants. Similarly situated litigants are not treated alike when they are of different genders. Romantic paternalism is the order of the day.
Consider a relatively mild example: the courts of the state where many of the justices live: Virginia, whose courts are no more biased than those of the average state.
In Virginia, the Court of Appeals ordered a man who made only one-fifth of what his wife made, and who was unemployed and the primary caregiver of the couple’s offspring, to pay his wife 40 percent of his meager disability pension, and denied him any spousal support (Asgari v. Asgari (2002)).
By contrast, men are routinely ordered to pay alimony to their ex-wives even when the ex-wife’s income is fairly similar to the husband’s, and even if the ex-wife is able-bodied and only “needs” alimony because her own salary, which is quite sufficient to support a middle-class lifestyle, is not sufficient to support the lavish lifestyle to which she is accustomed.
In an unpublished case, the court ordered a man to pay more than half his net income in alimony to his drunken wife, including money to pay for a car that she illegally drove after getting convicted for drunk driving and getting her license was suspended. (Judge Benton dissented).
And yet, in another case, it denied a man who a small fraction of what his wife made any alimony, citing his alcoholism.
Apparently, alcoholism is grounds for sympathy and an increase in alimony when the alimony-seeker is a wife, and grounds for denial of alimony when the alimony-seeker is a husband.
While drunkenness is apparently disqualifying for a man, greater sins are not disqualifying for a woman.
An adulterous woman received alimony in Calvin v. Calvin even though the court admitted her treatment of her blameless husband was “vindictive and cruel,” and even though Virginia law creates a strong presumption against alimony to adulterous spouses, statutorily banning alimony to an adulterous spouse unless it would be “manifestly unjust” to deny it in light of both comparative fault and economic factors.
Similarly, a woman who stabbed her truck-driver ex-husband received alimony.
(In case you are wondering, I am not divorced, don’t owe child support, and am happily married).
Comment by Hans Bader — October 24, 2007 @ 2:58 pm
My citation to the Asgari case in the comment above this one gave the wrong date. The case was decided in 2000, not 2002. The proper citation is Asgari v. Asgari, 33 Va.App. 393, 533 S.E.2d 643 (2000).
Comment by Hans Bader — October 24, 2007 @ 3:06 pm
Family law is pervaded by gender bias against male litigants. Similarly situated litigants are not treated alike when they are of different genders. Romantic paternalism is the order of the day.
Well, that’s an issue. But I don’t think an Equal Protection and/or Thirteenth Amendment (perpetual garnishment is slavery, slavery, I say!) argument was properly raised.
Comment by Jacques MacKenzie — October 24, 2007 @ 5:19 pm
I agree with Hans Bader’s points (and could give a dozen more examples). I think he’s just demonstrating that the Court has shown no interest in these types of cases, and it’s unlikely to do so now, even if there’s a colorable Federal issue.
Comment by Marc Shepherd — October 24, 2007 @ 6:07 pm
Marc and Hans,
Why in your opinion does the court not take these cases? If family law is gender bias, should it not be struck down as unconsitutional? I find it a tad bit ironic that a court that rountinely brings up racial bias cases refused to address any of these cases. Are some forms of discrimination more tolerable than some?
Comment by Chee Foong Chew — October 25, 2007 @ 4:24 am
[...] The request and the case waa discussed in this post. [...]
Pingback by “Alienation of affection” plea denied | SCOTUSblog — October 25, 2007 @ 2:26 pm
I’m in favor of a new law “unilateral consint” for divorce,not just for the sake of the well being of kids but for the entirety of family quality of life. There are broken contract laws for purchasing goods “wether homes,cars ect. There should be much stiffer penalty involved in breaking a covenant of marriage. The party that intentionaly comes between a marraige should be sued for causing malicious harm to a spouse. When they work with the adulterer and influence decisionsby allowing the spouse to move in with them before there was a binding legal seperation. There should be a law against the adulterer that is also married and they interfer in councelling sessions to pull the spouse further away from the marriage. The person which broke up my marriage by asking him to work in her home not long after she was employed on his daytime job. This person has cause nothing but pain and hardship for my well being. What steps do I take to get justice for the pain that the person caused me without any remorse.
Comment by Arnetia Lunkin — October 29, 2007 @ 2:46 pm
Can a lawsuit be brought against someone that interfers with your marriage in texas
Comment by alex gonzales — November 15, 2007 @ 3:57 pm
The comments here reflect an issue that to anyones logical mind should be considered by our Federal Supreme court. The wholesale discrimination of an entire gender, on its face warrants consideration.
I suspect that the billion dollar divorce industry that thrives on the the emotional carnage of relationships gone sour would take a huge hit if our laws worked to make our “dis-unions” more equitable.
I read recently that its unwritten knowledge between attorneys that there should be no mention of a settlement between parties until 40% of the assets are spent on legal fees. At those rates, the average middle class divorce can run up fee’s into the six figures. Imagine finding yourself in a bad marriage and realizing it’s going to cost you $100,000 or more to get out of it! And that’s the average. High profile divorces cost way more then that. David Hasselhoff (sp?) is reported to have spent over a million dollars on his still undone divorce. A million dollars? Just to get a divorce? I bet the settlement wont even be that high.
I met a divorce atty in the early 90’s. His annual REPORTED income: $750,000. We’ve got to do something about this, or no male in his right mind would say “I Do” ever again.
If we remember that the jurists who could ultimately fix this problem…are attorneys…whose friends are attorney’s… Why would they divest themselves of the potential to rake in that kind of money?
Comment by Michael Smith — December 20, 2007 @ 3:11 pm
Can a lawsuit be brought against someone that interfers with your marriage in texas
Alienation of Affection
Comment by Martha Salazar — March 11, 2008 @ 12:40 pm