Butterworth v. Jackson: New Mexico Abolishes Alienation of Affections (and Rejects Prima Facie Tort as a Substitute)

I. Introduction

In Butterworth v. Jackson (N.M. Jan. 26, 2026), the Supreme Court of New Mexico addressed—on certification from the Court of Appeals—whether New Mexico should continue to recognize the common-law “heart balm” tort of alienation of affections. The parties were James F. Butterworth (Plaintiff-Appellee, “Ex-Husband”), Ethan Jackson (Defendant, “Boyfriend”), and Dr. Sarah Smith (Intervenor-Appellant, “Ex-Wife”).

The lawsuit arose during Colorado divorce proceedings. Ex-Husband sued Boyfriend in New Mexico alleging (1) alienation of affections and (2) prima facie tort, claiming Boyfriend maliciously initiated a relationship with Ex-Wife during the marriage and caused the divorce. Ex-Wife intervened, citing burdensome discovery and arguing Colorado law controlled and would bar the claim. The Court of Appeals reframed the certified issue and asked the Supreme Court to decide the central question: whether alienation of affections should be abolished in New Mexico.

II. Summary of the Opinion

The Court expressly abolished the tort of alienation of affections in New Mexico and overruled Birchfield v. Birchfield, 1923-NMSC-066. It also concluded Ex-Husband could not proceed under a theory of prima facie tort and instructed the district court to dismiss his claims against Boyfriend.

The Court grounded its decision in (1) the tort’s historically patriarchal, property-based origins; (2) New Mexico’s modern public policy—particularly no-fault divorce and avoidance of fault-based inquiry into marital breakdown; (3) the privacy-invasive nature of the litigation the tort demands; and (4) the incompatibility between alienation-of-affections theory and New Mexico’s evolved understanding of consortium as a relational (not legal/property) interest.

III. Analysis

A. Precedents Cited

1. New Mexico’s foundational alienation-of-affections cases

• Birchfield v. Birchfield, 1923-NMSC-066: The Court first recognized alienation of affections, describing the protected interest as loss of “society, companionship, fellowship, comfort, conjugal affections and support” caused by a third party “maliciously invading” the marriage. Butterworth overrules Birchfield outright, treating it as incompatible with modern doctrine and policy.
• Murray v. Murray, 1925-NMSC-029: The Court affirmed a judgment for a wife against her husband’s parents and clarified “consortium” as broader than sexual relations, including “affection, companionship, conjugal love, fellowship, and assistance.” Butterworth uses Murray primarily as historical evidence of the tort’s scope—and as a precursor to the later doctrinal shift that undermines the tort.

2. Court of Appeals cases laying the groundwork for abolition

• Thompson v. Chapman, 1979-NMCA-041 (disapproved the tort as contrary to modern public policy): Quoted via Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, the Court highlights the longstanding appellate view that alienation-of-affections litigation is degrading, difficult to monetize, and socially harmful—so harmful that Thompson said it would abolish the remedy if it had authority.
• Hakkila v. Hakkila, 1991-NMCA-029: Although not an alienation-of-affections case, Hakkila articulated a key policy principle: New Mexico seeks to avoid judicial inquiry into “what went wrong” in a marriage and to protect intramarital privacy from tort-driven disclosure. Butterworth adopts this as a central incompatibility between the tort and modern divorce policy.
• Padwa v. Hadley, 1999-NMCA-067: This is the Court’s closest doctrinal bridge to abolition. Padwa rejected attempts to plead around alienation-of-affections limits by styling claims as intentional infliction of emotional distress or prima facie tort where the theory functionally targeted consensual affairs. Butterworth embraces Padwa’s insight that recognizing such claims effectively creates a “legal right” to a spouse’s affection and trammels privacy and liberty interests.

3. New Mexico’s evolution of “consortium” doctrine

• Roseberry v. Starkovich, 1963-NMSC-201: Interpreted Birchfield and Murray as establishing an independent, intentional-interference-based consortium claim and limited recovery to intentional interference. Butterworth uses Roseberry to show that alienation of affections is conceptually tethered to a property-like “legal interest” in consortium—an understanding later abandoned.
• Romero v. Byers, 1994-NMSC-031: A pivotal doctrinal pivot. The Court defined loss of consortium as “simply the emotional distress” from losing a mate’s company due to tortious injury—moving away from consortium as a quasi-property entitlement. Butterworth treats Romero as evidence that New Mexico no longer recognizes the kind of “legal interest in affection” needed to support alienation-of-affections liability.
• Lozoya v. Sanchez, 2003-NMSC-009 (abrogated by Heath v. La Mariana Apartments, 2008-NMSC-017): Quoted for the proposition that consortium damages protect a “relational interest, not a legal interest.” Butterworth relies on that conceptual framing to conclude alienation of affections lacks a viable legal foundation in contemporary New Mexico doctrine.

4. Stare decisis framework used to justify overruling

• N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028: Cited for the value of stare decisis (stability, fairness, economy).
• Trujillo v. City of Albuquerque, 1998-NMSC-031: Cited for the requirement of “special justification” to overrule precedent.
• State v. Chavez, 2021-NMSC-017: Supplies the four-factor test for overruling precedent (unworkability, reliance, doctrinal development, factual/social change). The Court holds these factors favor overruling Birchfield.
• Boradiansky v. State Farm Mut. Auto. Ins. Co., 2007-NMSC-015: Cited for de novo review of questions of law.

5. Tortious-interference and comparative authority

• Fogelson v. Wallace, 2017-NMCA-089: Cited for elements of intentional interference with contractual relations; used to reject Ex-Husband’s attempt to reframe marital obligations as contract rights enforceable against third parties.
• Dupuis v. Hand, 814 S.W.2d 340 (Tenn. 1991): Used to trace the tort’s origin to loss-of-services remedies and the treatment of wives as servants/property—central to the Court’s conclusion that the tort is an anachronism.
• Hoye v. Hoye, 824 S.W.2d 422 (Ky. 1992) and Russo v. Sutton, 422 S.E.2d 750 (S.C. 1992): Used to explain how Married Women’s Property Acts undermined the original rationale and how later rationales (marriage preservation) do not cure the tort’s defects.
• Coulson v. Steiner, 390 P.3d 1139 (Alaska 2017) and Helsel v. Noellsch, 107 S.W.3d 231 (Mo. 2003) (en banc): Cited alongside historical sources to underscore modern judicial recognition of the tort’s patriarchal lineage.
• Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983) (Stewart, J., concurring and dissenting): Quoted for the common-sense critique that spouses have agency and do not lose affection as if “drawn” like inert metal to a magnet—supporting the Court’s rejection of the tort’s premise.
• Nonhuman Rts. Project, Inc. v. Breheny, 197 N.E.3d 921 (N.Y. 2022) (Wilson, J., dissenting): Cited not for animal-rights doctrine but for a succinct statement of coverture’s historical reality, reinforcing the Court’s view that the tort’s origins are fundamentally inequitable.

B. Legal Reasoning

1. The Court identifies alienation of affections as doctrinally incompatible with modern New Mexico law

The Court’s core move is conceptual: alienation of affections rests on the notion that spousal affection is a protectable legal entitlement—functionally property-like—capable of being “stolen” by a third party. Relying on Padwa v. Hadley, the Court rejects this premise: affection is not property, and the tort disregards the “volitional act” of the spouse whose affections changed.

2. “Special justification” exists to overrule Birchfield

Applying the State v. Chavez factors, the Court finds that doctrinal development and changed social facts have “robbed” the old rule of justification. The opinion emphasizes two intertwined developments:

• Doctrinal development: New Mexico’s post-Birchfield consortium law reframed loss of consortium as emotional distress tied to relational harm, not a legal right to another person’s affection (Romero v. Byers; Lozoya v. Sanchez).
• Social and policy change: New Mexico’s no-fault divorce regime (NMSA 1978, § 40-4-1 (1973)) reflects a policy of avoiding judicial inquiry into marital fault (Hakkila v. Hakkila), whereas alienation-of-affections claims demand precisely that inquiry, typically via intrusive discovery.

3. The Court forecloses substitute theories grounded in contract or statute

• Tortious interference with contract: The Court rejects the notion that alienation of affections can be recast as interference with a marital “contract.” Invoking Fogelson v. Wallace and Hoye v. Hoye, the Court notes a key asymmetry: ordinary contract law allows suit against the breaching party; alienation-of-affections logic targets only the third party while effectively immunizing the spouse from a contract-like “affection” duty—highlighting why most jurisdictions have eliminated such marital interference torts.
• NMSA 1978, § 40-2-1 (1907): The Court declines to interpret the “Mutual obligations” statute as creating an enforceable right to affection. It notes the statute has been interpreted in relation to alimony and material “support,” and it refuses to expand the statute to resurrect alienation of affections. To the extent statutory rights exist, the Legislature provided a remedy through divorce under § 40-4-1.

4. Prima facie tort cannot be used as an end-run

Although the opinion does not provide an extended element-by-element prima facie tort analysis, it squarely holds Ex-Husband cannot proceed under that theory on these facts and directs dismissal. Read with the Court’s reliance on Padwa v. Hadley, the message is functional: New Mexico courts will look to substance over labels where the pleaded theory would recreate a right to sue over consensual sexual/romantic choices and invite invasive marital discovery.

C. Impact

• Elimination of a cause of action: New Mexico litigants can no longer plead alienation of affections; trial courts should dismiss such claims as a matter of law.
• Limits on “repackaging” claims: By rejecting prima facie tort in this setting, the Court reduces incentives to plead around abolition by relabeling the same theory of liability.
• Privacy-protective litigation consequences: The opinion’s repeated emphasis on intrusive discovery signals heightened skepticism toward civil claims that would require courts to adjudicate intimate marital dynamics primarily to assign blame for relationship breakdown.
• Choice-of-law disputes become less salient in this niche: Because the claim is abolished, multi-state choice-of-law fights over alienation of affections in New Mexico courts will largely evaporate.
• Doctrinal coherence with no-fault divorce: The decision aligns tort law with the state’s family-law policy of avoiding fault-based adjudications of marital failure.

IV. Complex Concepts Simplified

• Alienation of affections: A “heart balm” tort allowing a spouse to sue a third party for allegedly causing the other spouse to lose affection and the marriage to fail.
• Loss of consortium: Damages for harm to a close relationship (traditionally between spouses), often described in New Mexico as emotional distress from loss of companionship due to tortious injury to the partner.
• Stare decisis / “special justification”: Courts generally follow prior decisions; to overrule precedent, the court must give strong reasons, such as later doctrinal development or social change making the older rule untenable.
• No-fault divorce: A divorce system that does not require proving wrongdoing (fault) like adultery; New Mexico permits divorce based on “incompatibility,” reflecting a policy against litigating blame for marital failure.
• Prima facie tort: A flexible tort theory sometimes invoked when conduct is intentional and harmful but does not fit a traditional tort; here, the Court disallowed its use to recreate alienation-of-affections liability.
• Certification/interlocutory review: A mechanism for appellate courts to seek an authoritative answer to a controlling legal question before the case proceeds to final judgment.

V. Conclusion

Butterworth v. Jackson modernizes New Mexico tort law by abolishing alienation of affections and overruling Birchfield v. Birchfield. The Court’s reasoning is both historical and doctrinal: the tort’s property-based origins and its implicit denial of personal agency are incompatible with contemporary understandings of marriage, privacy, and consortium, and with New Mexico’s no-fault divorce policy that avoids judicial assignment of blame for marital breakdown. The decision also signals that courts will not permit end-runs—such as prima facie tort—where the substance of the claim seeks to impose civil liability for consensual romantic relationships and requires invasive inquiry into the intimate causes of a marriage’s end.