A Claim By Any Other Name . . .

The Alabama legislature acted 70 years ago to abolish the claim of alienation of affection, in which the spouse of a person sues the third party who seduced that person. You can find the statute (at least as it refers to a claim for seduction of an adult woman) at Ala. Code § 6-5-331, which says this: “There shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over.” But what happens if the third party is in a position of trust with reference to both the man and the woman? Is there a higher duty imposed on this third party that transcends § 6-5-331? The Alabama Supreme Court’s answer in Bailey v. Faulkner, Case No. 1040880 (Ala. January 6, 2006) is “uh, no.”

You’d have to search to find facts more egregious than these. Floyd Bailey was the pastor of Dalraida Church of Christ in Montgomery, and the Faulkners were church members. In 1999 the church hired Ms. Faulkner to serve as church secretary. Less than a year later, when Bailey realized the Faulkners were in marriage counseling with a licensed counselor, Bailey persuaded them to discontinue their counseling and to allow Bailey to help them, promising them that he would spend more time with them than their private counselor and guaranteeing them that “he could fix [their] marriage.” THAT SAME MONTH, Bailey and Ms. Faulkner began a consensual, sexual relationship that lasted several months.

While counseling with the couple AND WHILE HAVING SEX WITH THE WIFE, Bailey learned that Mr. Faulkner had an opportunity to move to Baldwin Courty. Bailey urged Mr. Faulkner to turn down the move, saying it “could break [the Faulkners’] marriage.” Mr. Faulkner took Bailey’s advice and stayed put in Montgomery. Mr. Faulkner eventually discovered the affair and confronted his wife and Bailey. Bailey at first denied a sexual relationship with Ms. Faulkner, but he eventually admitted it and resigned from the church. The Faulkners divorced a year later.

At this point, you may be thinking what an evil person this wife must have been, but I regard her as a victim. If you don’t, please stop and read this.

Okay, that’s the human part; now here’s the legal part. Faulkner knew he couldn’t sue Bailey for alienation of affection, so he sued instead for negligent counseling. Bailey moved the trial court for a judgment as a matter of law, on the grounds that Faulkner’s complaint was simply a thinly-disguised claim for alienation of affection. The trial court denied the motion. The jury returned a (large) verdict for Faulkner, and Bailey appealed.

The Alabama Supreme Court reversed and remanded, instructing the trial court to enter a judgment in favor of Bailey. Here is some of what the supreme court said:

Since the abolition in Alabama of the heart-balm torts, this Court has refused to recognize “any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship.” D.D., 600 So. 2d at 223 n.5 (emphasis added). For example, in D.D., this Court affirmed a summary judgment for the paramour and against the husband in his action against his wife’s paramour for interfering with, and causing the dissolution of, his marriage. 600 So. 2d at 221.

. . . it is immaterial whether Faulkner purports to allege negligent ministerial counseling, i.e., clergy malpractice, as Bailey insists, or negligent marital counseling, as Faulkner characterizes his claim. Neither theory is valid under the facts of this case.

This is so, because, despite the allegation in the complaint that Bailey “negligently [and/or wantonly]” counseled “[Faulkner] and his wife … concerning their marriage,” Faulkner’s actual theory of the case is that Bailey’s illicit relationship with [Ms. Faulkner] destroyed his marriage. All the damages Faulkner seeks flow, not from alleged negligence or wantonness, but from Bailey’s intentional conduct.

. . . In short, this case is not about negligence or wantonness — it is about intentional conduct. The only claims stated by the allegations in this case assert the amatory torts abolished by § 6-5-331. Damages sought here are the species of damages recoverable for those torts.

In his special concurrence, joined by Nabers and Stuart, Justice See said that the appropriate place to seek a remedy for this kind of behavior is the legislature, not the courts.

In his special concurrence, Lyons was more outspoken: “To be quite blunt, in this case I am holding my nose. The very idea that a marriage counselor who owes a duty to a husband and wife can escape liability for the consequences of his extramarital affair with a party to the marriage is, I respectfully submit, absolutely horrid public policy.”

Lyons called for specific legislative action:

If I were a member of the Alabama Legislature, I would immediately amend § 6-5-331 so as to provide that nothing in the statute should preclude a civil cause of action when a person who has assumed a duty toward a husband and wife with respect to the status of their marital relationship thereafter has sexual contact, as defined in § 13A-6-60(3), Ala. Code 1975, with one of the parties to the marriage during the existence of the marital relationship. I would further provide that the act would apply to all civil actions commenced after it was signed into law and that any such action would be subject to a six-year statute of limitations, running from the latter of the last sexual contact during the marriage or the date of the divorce, so that Faulkner would have his day in court. But I am not a member of the legislature, and I must concur in reversing the judgment in favor of Faulkner. (footnotes omitted)