FITCH v. VALENTINE

DICKINSON, Justice, Specially Concurring:

¶ 52. In my view, Mississippi should abandon the five other states which continue to fully recognize the antiquated common law tort of alienation of affections, and join the forty-two states who refuse to do so. As well said by the Iowa Supreme Court a quarter of a century ago, "[t]here is inherent and fatal contradiction in the term `alienation of affections.' The alienation belies the affection." Fundermann v. Mickelson, 304 N.W.2d 790, 791 (Iowa 1981). Nevertheless, I have been unsuccessful in persuading the benevolent majority which holds that the ancient and infirm cause of action shall continue to breathe in Mississippi. That said, I shall respect the majority's decision, and apply the law to alienation of affections cases which find their way here, including the case before us today. First, however, I shall state my case for abolition of the cause of action.

Evolution of the alienation of affections cause of action

¶ 53. The tort called alienation of affections originated in the English common law, when wives were considered their husbands' property. A third party who actively interfered with a marriage by persuading a wife to leave her husband was considered to have deprived the husband of his property. A brief overview of the development of common law alienation actions is in order to explain and provide an historical backdrop for the discussion to come.

¶ 54. In order to maintain pure bloodlines and discourage adultery, Teutonic tribes required a wife's lover to compensate the husband for his wife's infidelity, allowing the husband to buy a new wife and ensure the legitimacy of his offspring. Hoye v. Hoye, 824 S.W.2d 422, 423-24 (1992) (citing Lippman, The Breakdown of Consortium, 30 Colum. L.Rev. 651, 655 (1930)). The Anglo-Saxons later allowed actions for marital interference on the premise that wives were valuable servants to their husbands. Helsel v. Noellsch, 107 S.W.3d 231(Mo. 2003). The action was analogous to a master's claim "against one who enticed away his servant, in whose services the master held a quasi-property interest." O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693, 696 (1986). Thus, in keeping with this belief, a husband could "vindicate" his loss in the marital relationship through an action for alienation of affections, but a wife was not afforded the same right. Helsel, 107 S.W.3d at 232.

¶ 55. Two centuries ago, in Hutcheson v. Peck, 5 Johns. 196 (N.Y. 1809), the Supreme Court of Judicature of New York applied the common law tort to an action by a husband who sued his wife's father for attempting to alienate his wife's affection. Although at first agreeable to his daughter's marriage, the father-in-law began to question the Plaintiff's ability to provide for his daughter, and changed his mind. He threatened his daughter's husband, going so far as to "strike" him, and then took his daughter into his home and threatened that, if she returned to her husband, he would not support them. In analyzing the claim, the court stated that "[i]f it was the duty of the wife to return to her husband, the defendant did an unlawful act by persuading her to violate that duty. If the wife was unjustifiable in abandoning the plaintiff, the defendant is responsible for having enticed and persuaded her to abandon him." Id. at 205 (emphasis added.). The court went on to state that, had the defendant "not been instrumental in procuring his daughter to live apart from her husband, and had he gone no further than to receive and support her," the plaintiff would have no recovery. Id. at 206. The court then stated, "[v]ery different, however, will be the conclusion, when the parent unlawfully produces the separation by sowing the seeds of discord and hatred; thereby poisoning the sources of domestic harmony and enjoyment." Id.

¶ 56. In Wensmore v. Greenban, (Wiles 581) (Wiles' English King's Bench and Common Pleas Reports), the ancient English court declared, "[t]o be sure, it must be an unlawful procuring . . . and by means of [insinuations] the defendant [must have] persuaded the plaintiff's wife to do an unlawful act. . . ." (Emphasis added).

¶ 57. When Mississippi became one of the United States, it recognized and adopted most of the English common law. Thus, the civil cause of action for alienation of affections traveled with our ancestors from England to Mississippi. Over the past two hundred years, however, the cause of action has fallen into disfavor for several reasons. In the late nineteenth and early twentieth centuries, the Married Women's Property Acts were passed, giving women the same rights to own property as men. Hoye, 824 S.W.2d at 424 (citing Comment, Alienation of Affections: Flourishing Anachronism, 13 Wake Forest L.Rev. 585, 588 (1977)). This shift in the perception of a wife's role in the marriage forced the courts to consider the continued viability of alienations actions. Hoye, 824 S.W.2d at 424. But instead of allowing the tort — along with its wife-as-chattel premise — to fade away, some courts began to justify alienation of affection actions as a means to preserve marriages and discourage interference by third-parties. Id. See also O'Neil, 733 P.2d at 696. While the rationale for the action changed, the tort's elements (in most states) remained unaltered despite the new focus on marital harmony. Hoye, 824 S.W.2d at 425.

¶ 58. For example, consent was historically prohibited as a defense to alienation actions "based on the legal inferiority of the wife who was deemed incapable of consenting to the injury of her superior, her husband." Id. (citing H. Clark, The Law of Domestic Relations in the United States, § 4.2, p. 267 (1987)). And even though the cause of action has supposedly moved beyond those outdated roots, consent remains a prohibited defense today, id., as today's case demonstrates. As one commentator noted, "[t]he idea that one spouse can recover for an act the other spouse has willingly consented to is perhaps better suited to an era that regarded one spouse as the property of another." Prosser and Keeton, The Law of Torts, § 124 at 917 (5th ed. 1984).

¶ 59. The Kentucky Supreme Court, quoting Justice Holmes, described the unfortunate rise of the legal fiction buttressing the common law tort of alienation of affections:

[A] common phenomenon . . . familiar to the students of history, is this. The customs, beliefs or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity, disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things and then the rule adapts itself to the new reasons which have been found for it, and enters a new career. The old form receives a new content and in time even the form modifies itself to fit the meaning which it has received.

Right to abolish common law actions

¶ 60. Because I favor strict observance of the constitutional separation of powers, reserving unto the Legislature the prerogative to legislate, and claiming for this Court the power and duty to attend to all things judicial, I feel somewhat obligated to justify my preference that this Court, rather than the Legislature, abolish the tort.

¶ 61. It appears that this Court first recognized the tort of alienation of affections in Brister v. Dunaway, 149 Miss. 5, 115 So. 36 (1927). Notably, the Mississippi Legislature has never codified any of the so-called "heart balm torts," including alienation of affections, and the actions remain exclusively creatures of the common law.

¶ 62. In Saunders v. Alford, 607 So.2d 1214, 1219 (Miss. 1992), this Court, recognizing the obsolete nature of another of the common law "heart balm" torts, abolished criminal conversation. In explaining the constitutional power of the Court to abolish the cause of action, this Court stated that "the creation of common law is not a one-way street. . . . What the court gives it can take away. This Court faces no constitutional impediment to ceasing to recognize criminal conversation as a viable tort." Id. See also Fundermann, 304 N.W.2d at 793 ("Of course it is our duty to monitor and interpret the common law, and to abandon antiquated doctrines and concepts. The genius of the common law is its flexibility and capacity for growth and adaption." (Citations omitted)); Russo v. Sutton, 310 S.C. 200, 422 S.E.2d 750, 753 (1992) ("The common law changes when necessary to serve the needs of the people."). Thus, because the common law is a creature of the courts, English and American, this Court and other courts are free to change it at will, recognizing that the legislative bodies of the various states are also free to enact into statutory law any provision of the common law they think appropriate.

¶ 63. A woman is not property, and her decision to engage in and consent to extra-marital affairs — although abhorrent to the majority (and to me) — should not be relegated to the musings of an inferior spouse, incapable of making such decisions.

Spousal affection is incapable of theft

¶ 64. The alienation of affections cause of action has never sufficiently separated from its property-based origins, and the tort is continued because "spousal affection" is characterized as "property" capable of theft. Fundermann, 304 N.W.2d at 794. However, that premise is simply illogical. "To posit that one person possesses rights to the feelings of another is an anachronism." Hoye, 824 S.W.2d at 426. Even though courts today do not call the alienated affection "property" or "a possession," that is how it is treated, just as it was when courts created the cause of action to compensate husbands for the loss of their wives' "services." In the end, the successful plaintiff engages in what is essentially a "sale" of his or her spouse's affections. Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452, 455 (1980).

¶ 65. Additionally, "theft" implies the taking of property from an unwilling owner by an outsider. However, the fact is that actions for alienation of affections arise from the willing participation of one spouse. While the tort purportedly exists to discourage third-parties from disturbing the martial relation, in reality the marriage is unlikely to weaken without one spouse actively consenting to the "wrongful interference." O'Neil, 733 P.2d at 698. "Human experience is that the affections of persons who are devoted and faithful are not susceptible to larceny no matter how cunning or stealthful." Fundermann, 304 N.W.2d at 791. See also Russo, 422 S.E.2d at 752; Wyman, 615 P.2d at 455.

¶ 66. Importantly, I do not advocate for the abolition of this tort because I feel defendants in such suits deserve protection, or because I view promiscuity as harmless. I merely find the foundation for such suits — that someone should recover for an injury to "property" which they cannot own — completely erroneous. See Fundermann, 304 N.W.2d at 794.

No evidence the tort deters wrongful interference with or preserves marriage

¶ 67. As the Washington Supreme Court noted when abolishing the tort of alienation of affections, "[t]he underlying assumption of preserving marital harmony is erroneous." Wyman, 615 P.2d at 455. The tort is inherently unplanned, especially where sexual activity is involved, so the idea that the parties would contemplate the possibility of a lawsuit and be deterred is unrealistic. O'Neil, 733 P.2d at 698 The truth remains that a spouse inclined to engage in an extramarital affair will do so, and even if "a would-be paramour would be thereby dissuaded [by the threat of suit], a substitute is likely to be readily found." Fundermann, 304 N.W.2d at 792.

¶ 68. The theory that alienation actions must be retained as a means of preserving marriages and protecting families must fail for lack of support. While an admirable sentiment, these suits inevitably do more to hurt families than to help them. In my view, when a marriage has crashed and burned, the law should not provide an imprimatur to fan the coals of anger and resentment, extending further into the future the time when healing can begin. This is particularly true where children are involved. Enough difficulty exists already in the development of a civil relationship among divorced parents and the children of the marriage.

Cause of action is primarily punitive and brought to gain revenge

¶ 69. Despite the fact that an action for alienation of affections is a civil suit and theoretically compensatory, the true nature of the claim is punitive. "The third party is seen as a malicious seducer wreaking havoc upon the harmonious marital couple. These common law actions thus reason that the third-party must be punished for his [or her] misdeeds by payment to the aggrieved spouse." Hoye, 824 S.W.2d at 425.

¶ 70. Undeniably, the primary motives in bringing an action for alienation of affections are to gain revenge on the unfaithful spouse and the defendant and to force outrageous settlements. O'Neil, 733 P.2d at 698. Alienation of affection claims have become prime tools for extortion or blackmail. Russo, 422 S.E.2d at 753; Wyman, 615 P.2d at 455. Such vexatious lawsuits can make contentious divorce proceedings even more bilious. O'Neil, 733 P.2d at 698. The action can also rearrange the marital assets, making it difficult for a court to properly assess the needs and abilities of the individual spouses. Id. at 697. These suits are never used to achieve reconciliation or preserve the marriage; rather, they are fueled by vindictiveness and a desire to destroy reputations and relationships. Helsel, 107 S.W.3d at 233.

Injuries to parties' reputations and dignity

¶ 71. No party involved in an action for alienation of affections emerges unscathed. While the harm to the defendant and unfaithful spouse is clear, "the action [also] diminishes the plaintiff's dignity and injuries his [or her] own reputation through the process of seeking money damages." O'Neil, 733 P.2d at 697. The intimate details of the marriage, and its breakdown, are revealed for all to see as the parties attempt to assassinate the character of their adversaries. Helsel, 107 S.W.3d at 233; Russo, 422 S.E.2d at 753.

¶ 72. Often lost in this bitter fight is the effect the suit can have on children of the marriage. Even beyond the mere exposure to the airing of their parents' dirty laundry, children can be required to testify for one parent or another in open court. O'Neil, 733 P.2d at 698. See also Fundermann, 304 N.W.2d at 791 (detailing such testimony). Clearly, any injuries that might have been caused by the wrongful conduct are exacerbated by alienation of affections actions.

Difficulty of juries to properly evaluate alienation actions

¶ 73. Alienation of affections cases present a particularly difficult challenge for juries. As the Iowa Supreme Court observed,

[o]ur system of establishing facts, however, has a strong, sometimes it seems an irresistible, tendency to break down in alienation cases. This is because of the incendiary effect of the usual evidence in such cases. Under the established theory of recovery, the jury should first undertake to decide which came first, the marriage breakdown or the misconduct. But juries necessarily face the first determination after learning of conduct of which they strongly disapprove and which society condemns.

¶ 74. The element of "inducement" often proves perplexing, as the factfinder must determine whether the defendant or the alienated spouse was primarily responsible for the other spouse straying. The Idaho Supreme Court cited a case to illustrate the dilemma where the plaintiff and spouse were separated, the spouse willingly engaged in an affair, and yet the jury still found for the plaintiff. O'Neil, 733 P.2d at 698 (citing Sebastian v. Kluttz, 6 N.C.App. 201, 170 S.E.2d 104 (1969)). The jury in this case fell into the same trap. The majority accurately points out that there was no evidence that Fitch "induced" Valentine's estranged wife to engage in an illicit affair with him. Nevertheless, the jury awarded Valentine $754,500, plus interest, for his alleged loss.

¶ 75. The awarding of damages presents another distinct problem in these actions, as no clear standards for compensating the plaintiff exist. Wyman, 615 P.2d at 455. This opens the door for quasi-punitive damage awards, disguised as actual damages, which are usually tainted by passion and prejudice. O'Neil, 733 P.2d at 698. Of course, I can hardly blame jurors for struggling with this cause of action. The theory of recovery, itself, is flawed. Fundermann, 304 N.W.2d at 791.

Abolition will have no effect on right to recover for loss of consortium

¶ 76. Abolition of the common law tort of alienation of affections will in no way restrict the right to recover for loss of consortium. "The right to recover for loss of consortium is a factor in assessing damages when the underlying liability has been established in a personal injury suit. Renunciation of the right to recover for alienation proceeds from the belief there is no basis for the underlying liability." Id. at 794. Given the specific attributes of an alienation action and the right to recover for loss of consortium, it is not inconsistent to abolish the former and continue to recognize the latter. Id. Comparison with actions for tortious interference with a contractual relationship is misplaced

¶ 77. A claim of tortious interference with a contractual relationship is not comparable to a claim of alienation of affections. In contract suits, the aggrieved party can sue both the interferer and the other party to the contract. However, in alienation actions, the "other party" to the "contract" is the spouse (whose affection was allegedly alienated from the plaintiff) who is not subject to suit, as in true contract cases. Hoye, 824 S.W.2d at 426. As the Kentucky Supreme Court pointed out, "[t]his logical asymmetry has prompted the majority of jurisdictions to eliminate these marital torts." Id. A majority of states have abolished the common-law action

¶ 78. Despite the majority's assertions to the contrary, there is simply no evidence that the alienation of affections cause of action protects marriages. O'Neil 733 P.2d at 698. "In fact, once suit has been brought, it notifies the public that the marriage is unstable, embarrasses the spouses and their children, and adds more tension to the family relationship." Id. The majority of states have discarded this fictional rationale for preserving the common law tort of alienation of affections, and we should follow suit.

¶ 79. The following twenty-five states and the District of Columbia have legislatively abolished the common law tort of alienation of affections: Alabama, Ala. Code § 6-5-331 (1975); Arizona, Ariz.Rev. Stat. § 25-341 (1956); Arkansas, Ark. Code Ann. § 16-118-106 (1989); California, Cal. Civ. Code § 43.5 (1982); Colorado, Colo.Rev.Stat. § 13-20-202 (1973); Connecticut, Conn. Gen.Stat. Ann. § 52-572b (1984); District of Columbia, D.C. Code Ann. § 16-923 (1981); Georgia, Ga. Code Ann. § 51-1-17 (1979); Indiana, Ind. Code Ann. § 34-12-2-1 (1998); Kansas, Kan. Stat. Ann. § 23-208 (1982); Maine, Me.Rev.Stat. Ann. tit. 14, § 301 (1995); Maryland, Md. Code Ann., Fam. Law § 3-103 (1984); Massachusetts, Mass. Gen. Laws Ann. ch. 207, § 47B (1985); Michigan, Mich. Comp. Laws Ann. § 600.2901 (1961); Minnesota, Minn.Stat. Ann. § 553.01 (1978); Montana, Mont. Code Ann. § 27-1-601 (1983); Nebraska, Neb.Rev.Stat. § 25-21, 188 (1986); Nevada, Nev.Rev.Stat. 41.380 (1979); North Dakota, N.D. Cent. Code § 14-02-06 (1983); Oregon, Or.Rev.Stat. § 31.980 (2004); Rhode Island R.I. Gen. Laws § 9-1-42 (1997); Tennessee, Tenn. Code Ann. § 36-3-701 (1989); Texas, Tex. Fam. Code Ann. § 1.107 (1997); Virginia, Va. Code Ann. § 8.01-220 (1977); West Virginia, W. Va. Code § 56-3-2a (1969); and Wisconsin, Wis. Stat. Ann. § 768.01 (1979).

¶ 80. The following six states have judicially abolished the common law tort: Idaho, in O'Neil, 733 P.2d at 698; Iowa, in Fundermann, 304 N.W.2d at 791; Kentucky, in Hoye, 824 S.W.2d at 423; Missouri, in Helsel, 107 S.W.3d at 233; South Carolina, in Russo, 422 S.E.2d at 753; and Washington, in Wyman, 615 P.2d at 455.

¶ 81. Thus, thirty-one states have completely abolished the common law tort of alienation of affections. But it doesn't stop there. The following eight states have legislatively abolished all alienation of affections suits for money damages: Delaware, Del. Code Ann. tit. 10, § 3924 (1974); Florida, Fla. Stat. Ann. § 771.01 (1964); New Hampshire, N.H.Rev.Stat. Ann. § 460:2 (1981); New Jersey, N.J. Stat. Ann. § 2A:23-1 (1935); New York, N.Y. Civ. Rights Law § 80-a (1965); Ohio, Ohio Rev. Code Ann. § 2305.29 (1990); Vermont, Vt. Stat. Ann. tit. 15, § 1001 (1973); and Wyoming, Wyo. Stat. Ann. § 1-23-101 (1977).

¶ 82. Oklahoma has abolished the tort when a spouse of sound mind/legal age is involved. Okla. Stat. tit. 76, § 8.1 (1976) Pennsylvania has abolished the tort except in those cases where the defendant is the parent or sibling of the plaintiff's spouse Pa. Stat. Ann. tit. 23, § 1901 (1990). Illinois only permits actual damages to be recovered in alienation of affection actions 740 Ill. Comp. Stat. Ann. 5/2 (1990). Alaska and Louisiana have never even recognized the tort. See Moulin v. Monteleone, 165 La. 169, 115 So. 447, 451 (1927), overruled in part on other grounds by 9 to 5 Fashions v. Spurney, 538 So.2d 228, 234 (La. 1989).

¶ 83. Only six states continue to fully recognize the common law tort of alienation of affections: Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. It is, in my view, time that Mississippi's name be removed from this ever-dwindling list and recognize what so many other jurisdictions have long since realized: alienation of affections suits have outlived any relevance or usefulness they may have once possessed. The Court recognized this truth with respect to the tort of criminal conversation, and we abolished that cause of action accordingly. Saunders, 607 So.2d at 1219. The same course of action should be followed here, and this Court should likewise abolish the common law cause of action for alienation of affections.

¶ 84. Having failed to gain agreement from a majority of Justices on elimination of the cause of action, I must now analyze the case before us. Despite my view that the cause of action for alienation of affections should be eliminated in Mississippi, a majority of this Court wishes it to remain viable. Since my oath of office requires me to follow the law as it exists, not as I think it should be, I cannot deprive the plaintiff of my vote simply because my personal view is that the law should be changed. A vote to dissent would be justified in this case only if I conclude that the existing law has been improperly applied. In my view, Justice Randolph's analysis of the law and his application of the law to this case is exactly correct. Indeed, I am grateful that Justice Randolph has taken this opportunity to clarify an area of the law which, because of previous cases handed down by this Court, has become muddled. The majority clearly sets forth the requirement that alienation of affections claims may be maintained only where the defendant can be shown to have committed a wrongful act which served to induce or entice a spouse to abandon the marriage relationship. For these reasons, with respect to the majority's disposition of this case under our current law, I concur.

¶ 85. I commend the majority for clarification of this issue.

GRAVES, J., joins this opinion in part.

EASLEY, Justice, Dissenting:

¶ 86. On appeal, Jerry Fitch, Jr. (Fitch) raised numerous assignments of error: (1) whether the tort of alienation of affections should be abolished; (2) whether the trial court erred in allowing Johnny Valentine (Valentine) to use unsworn pleadings to impeachment Fitch; (3) whether the trial court erred in granting Valentine's jury instructions, P-5 and P-8; (4) whether the trial court erred in denying Fitch's jury instruction, D-8; (5) whether the compensatory award in this case was contrary to the weight of the evidence; (6) whether the compensatory award in the case was contrary to the weight of credible evidence and the product of bias, passion, and prejudice; (7) whether the punitive damage award in this case violates due process; and (8) whether the trial court erred in denying a substantial remittitur.

¶ 87. While the Valentines' marriage was unquestionably not a "shining example" of marriage, and divorce is unfortunately increasingly prevalent in our society, I agree that the Court should decline the invitation to abolish the tort of alienation of affections. Alienation of affections is the only avenue available to provide redress for a spouse who has suffered loss and injury to his or her marital relationship against the third party who induced the husband or wife to abandon the marriage and/or affections due to his or her active, direct, and intentional interference with the marriage.

¶ 88. In Camp v. Roberts, 462 So.2d 726, 727 (Miss. 1985), this Court held:

[W]here a husband [wife] is wrongfully deprived of his rights to the "services and companionship and consortium of his [her] wife [husband]," he [she] has a cause of action "against one who has interfered with his [her] domestic relations."

¶ 89. Chief Justice Smith, then Justice Smith, authored an excellent special concurring opinion in Bland, which clearly explained the justification and need to continue to recognize alienation of affections as a viable tort, stating:

[W]here the proof is so great in support of an action for alienation of affections, we must ask the following questions. Should an individual be allowed to intrude upon a marriage to such an extent as to cause it to come to an end? Does a spouse have a valuable interest in a marriage that is worthy of protection from the intruding third party? In my view, the answer to both questions is in the affirmative. The traditional family is under such attack both locally and nationally these days that this Court should not retreat now from the sound view of the tort of alienation of affections espoused by this Court in Saunders as entitling a spouse to "protection of the love, society, companionship, and comfort that form the foundation of a marriage. " Saunders v. Alford, 607 So.2d 1214, 1215 (Miss. 1992) (quoting Norton v. Macfarlane, 818 P.2d 8, 12 (Utah 1991)); see also Horner v. Byrnett, [ 132 N.C.App. 323,] 511 S.E.2d 342 (N.C.Ct.App. 1999). I do not believe that under the compelling facts of this particular case this Court should hold that the doctrine of alienation of affections has outlived its usefulness as a deterrent protecting the martial [sic] relationship of a husband and wife in cases where the facts clearly warrant. 607 So.2d at 1219.

¶ 90. The required elements of an alienation of affections lawsuit include: (1) wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) a causal connection between the conduct and the loss. Bland v. Hill, 735 So.2d 414, 417 (Miss. 1999) (emphasis added). In Bland, this Court held that "the purpose of a cause of action for alienation of affections is the `protection of the love, society, companionship, and comfort that form the foundation of a marriage . . .'" Bland, 735 So.2d at 417 (quoting Saunders, 607 So.2d at 1215).

¶ 91. The "wrongful conduct" required to maintain an action for the tort of alienation of affections is the direct and intentional interference `with the marriage relationship by the defendant and an inducement to abandon the spouse by some active interference by the defendant. See Children's Medical Group v. Phillips, 940 So.2d 931, 934 (Miss. 2006); Stanton v. Cox, 162 Miss. 438, 450, 139 So. 458, 460 (1932). In Stanton, 139 So. at 460, this Court held:

"In order to sustain an action for the alienation of the husband's [wife's] affections it must appear, in addition to the fact of alienation or the fact of the husband's [wife's] infatuation for the defendant, that there had been a direct interference on the defendant's part, sufficient to satisfy the jury that the alienation was caused by the defendant , and the burden of proof is on the plaintiff to show such interference." 15 Am. Eng. Ency. of Law, p. 865. Again, on page 866, it is said: "But to maintain this action it must be established that the husband [wife] was induced to abandon the wife [husband] by some active interference on the part of the defendant." In 3 Elliott on Evidence, section 1643, it is said: "To entitle the plaintiff to recover in an action for alienating affections, the burden of proof is upon the plaintiff, and the plaintiff must show that there was a direct interference upon the part of the defendant that not only was there infatuation of the husband or wife for the defendant, but that the defendant by wrongful act was the cause of it."

(Emphasis added). See also Kirk, 607 So.2d at 1223; Martin v. Ill. Cent. R.R. Co., 246 Miss. 102, 110-11, 149 So.2d 344, 348 (1963). In Kirk, this Court stated that the defendant must "directly and intentionally [interfere] with" plaintiff's marriage, thereby inducing the alienation of affections of the plaintiff's spouse. Kirk, 607 So.2d at 1223 (emphasis added).

¶ 92. The majority correctly recognizes that inducement is a specifically required element to establish alienation of affections, rather than alienation of affections being established solely from the fact that an affair or sexual relationship occurred. However, the majority's reasoning remains fatally flawed. The majority focuses its reasoning to establish inducement from the undisputed fact that Fitch is a wealthy man, and Sandra could not resist his money. The majority misses the point that there must be established some "wrongful conduct" on the part of Fitch that amounted to the direct and intentional interference with the marriage relationship and resulted in the inducement of Sandra to abandon Valentine by some active interference on the part of Fitch. Sandra testified that Fitch did not ask her to leave Valentine, and she was the initiator of the eventual relationship.

¶ 93. Here, the majority bases the inducement on Sandra's alleged inability to resist Fitch's money and the fact that Sandra had a lot of money in cash when she worked for Fitch. However, both Sandra and Fitch testified that Fitch did not give Sandra any money above and beyond what she earned in her salary from working for Fitch Oil Company and in commissions from the sale of real estate for Fitch Realty. According to the record, Sandra began working at Fitch Oil Company sometime in 1997. Sandra testified that her relationship with Fitch did not start until sometime in the spring of 1998. She testified that she believed that she had worked there approximately sixteen months before she initiated flirtation and the affair with Fitch. Fleming, who worked as the bookkeeper for Fitch Oil Company testified as to how Sandra was paid her salary. Fleming verified that Fitch paid all his employees in cash.

¶ 94. Fitch testified regarding the money he gave to Sandra before they were married. He stated that Sandra worked out of Fitch Oil Company, but she also worked in Fitch Realty as a realtor. Fitch stated that Sandra, like all of his employees, was paid in cash for her weekly salary plus commissions on what she sold. According to Fitch's testimony, he never gave Sandra any extravagant gifts nor took any trips with her. He further denied that he ever gave Sandra $8,000 in cash to purchase a Jeep Cherokee. Fitch testified that he did not recall giving Sandra any money over and above her salary and commissions.

¶ 95. Further, Sandra and Fitch both denied that Fitch had ever made any threats against Sandra that he would take her child away from her. Sandra also denied any physical threats from Fitch. Sandra testified that Fitch never asked her to leave Valentine. Sandra subsequently married Fitch after she divorced Valentine, and she was still married to Fitch at the time of the trial. Further, Sandra met Valentine under similar circumstances.

¶ 96. Prior to trial, Valentine filed a motion in limine to prevent Fitch from introducing any evidence that Valentine and his former wife, Sandra, engaged in and participated in a lengthy adulterous relationship prior to their marriage while Sandra was still married to a prior husband, Tracey Hughey. After Sandra's divorce from her husband, Hughey, she married Valentine. The trial court granted the motion in limine to exclude the testimony regarding Valentine's adulterous affair with Sandra.

¶ 97. As will be discussed in greater detail below, Sandra testified that she was the initiator of the relationship with Fitch. This fact is completely ignored in its reasoning by the majority which acknowledges that the spouse must have been induced to abandon the marriage. It is hard to imagine how Sandra was the one induced when she testified that she pursued Fitch, who was married at the time, and she was the initiator of their eventual relationship.

¶ 98. Fitch made a post-trial motion for JNOV. In Fitch's reply memorandum, Fitch contended that "[the] plaintiff was unable to show that [the] defendant's direct interference with the marital relationship caused the alienation of the plaintiff's affections." Fitch stated that "the plaintiff's theory of the case" was that "Sandra [Valentine Fitch] was attracted to [the] defendant's money." Fitch further noted that the evidence of adultery satisfied the first prong of the inquiry, however, "the plaintiff was unable to prove loss of affection as a result of that conduct." The trial court subsequently entered its order denying Fitch's motion for JNOV.

¶ 99. Pursuant to M.R.C.P. 50(b), "a party may file a motion to have the verdict and any judgment entered thereon set aside," no "later than ten days after entry of judgment in accordance with a verdict." M.R.C.P. 50(b). A motion for JNOV challenges the legal sufficiency of the evidence. McFarland v. Entergy Miss., Inc., 919 So.2d 894, 904 (Miss. 2005); McClain v. State, 625 So.2d 774, 778 (Miss. 1993). "[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court." McClain, 625 So.2d at 778. Here, this occurred when the trial court denied Fitch's motion for JNOV. In White v. Stewman, 932 So.2d 27, 32-33 (Miss. 2006), this Court recently provided an excellent analysis of what occurs when a motion for JNOV is made pursuant to M.R.C.P. 50(b), stating:

Rule 50(b) allows the court to reserve the decision on this critical question of law until after the case has been submitted to the jury and the jury has reached a verdict or has informed the judge of its inability to agree on a verdict. Wright Miller, Federal Practice and Procedure: Civil 2d § 2521, p. 241. "If the court decides that the initial motion for judgment as a matter of law should have been granted, it may set aside the verdict of the jury and enter a judgment as a matter of law. . . . Thus the rule gives the trial court a last chance to order the judgment that the law requires." Id., pp. 241-12.

When a proper post-verdict motion for a JNOV has been made, the court has three options:

First, of course, it may deny the motion and enter judgment on the verdict. Alternatively, it may grant the motion and order judgment for the moving party. Either of these actions results in a final appealable judgment. Third, the court may think the motion well taken but the defect in the proof possibly remediable and thus order a new trial rather than judgment as a matter of law. An order granting a new trial is interlocutory in nature and generally not appealable.

Wright Miller, Federal Practice and Procedure: Civil 2d § 2540, p. 366-67. (See also Miss. R. Civ. P. 50, cmt).

The standard of review for the denial of a motion for JNOV is well settled:

A motion for a JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss. 1994). It asks the court to hold, as a matter of law, that the verdict may not stand. Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss. 1989) (citing Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss. 1984)). When a motion for JNOV is made, the trial court must consider all of the evidence-not just evidence which supports the non-movant's case-in the light most favorable to the party opposed to the motion. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict, granting the motion is required. Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 54 (Miss. 2004).

¶ 100. Sandra testified that she met Valentine in 1989 when she was married to someone else. They were married years later in 1993. Sandra went to work for Fitch Oil Company sometime in 1997. According to Sandra's testimony, she was the initiator of the relationship with Fitch. She testified that she was the one who pursued Fitch and flirted with him. She testified that she was attracted to Fitch and fell in love with him. Eventually, Sandra and Fitch began a relationship sometime in 1998 that eventually became sexual.

¶ 101. Sandra testified that her marriage to Valentine was already over before the relationship began. According to Sandra's testimony, her marriage to Valentine was over in her mind in 1996, before she ever met Fitch in 1997. She testified that Valentine spent his money and time gambling and hanging out with his buddies rather than spending any time with her. She stated that Valentine routinely came home drunk, and they had no communication with each other. Sandra testified that after she stopped hanging out with Valentine at his buddy's house sometime in 1995 or 1996, she rarely saw him. Sandra testified that she would go to Valentine's buddy's house or the casinos and try to get him to come home. Sandra testified that at times, Valentine would not come home for days, with the longest period being three days.

¶ 102. She stated she "would scream, cry, holler," but "nothing helped." In January of 1996, she went to the casino and told him that if he did not leave the casino then the marriage was over. They talked outside and ended up in a fight. She stated that Valentine walked back inside the casino instead of coming home with her. Sandra testified that was the moment that the marriage was over in her mind. According to Sandra, she was married to "someone that didn't show . . . affection."

¶ 103. Sandra testified that she had come to resent having to have sex with Valentine because he had "turned . . . [her] against him." Sandra stated that Valentine "never spoke to her." She testified that "[h]e never had anything to say, and then he would expect me to just want to touch . . . he just wanted to have sex with me." When Valentine wanted to have sex, she considered the act of sex "just something to get him . . . to get the job done and get through." Sandra alleged that Valentine had failed to provide financial support for their son, J.V., since the divorce and that Fitch was having to support him.

¶ 104. Fitch testified that at the time the relationship began he knew Sandra was married, but Sandra told him that she "did not have a marriage any more." However, by the time that the relationship became sexual, Fitch testified that he did concern himself about Sandra's marriage. Fleming testified that Sandra had confided in her regarding the problems in her marriage to Valentine.

¶ 105. Sandra testified that Fitch did nothing to threaten her into the relationship or to remain in a relationship. Further, Fitch never threatened to take K.V. away from her if she did not continue working for him or the relationship. When Valentine insisted that Sandra quit working for Fitch, she refused and testified that she had no intention of ever quitting. Sandra testified that the cash she had came from her salary and commission. Fitch did not give her money in exchange for sexual relations or to entice her into the relationship or to remain in the relationship. Fitch testified that he never gave Sandra any extravagant gifts and did not recall giving her any money except for her salary and commissions paid in cash like all his employees. Fleming testified that Fitch paid all his employees in cash.

¶ 106. Valentine confronted Sandra regarding whether she was having an affair. Sandra denied the accusation. Later, Valentine confronted Fitch and Sandra, inquiring if they were having an affair. Both denied the accusation. Valentine was aware that K.V., born in 1999, was not his child. The paternity test showed that Valentine had no chance of being the father.

¶ 107. Valentine presented no evidence that Sandra was not the initiator of the relationship with Fitch. Valentine made unsupported accusations that Fitch was giving Sandra money to have a relationship with him and that he had threatened to use his money to take K.V. away from Sandra if she ended the relationship. Sandra and Fitch both denied the allegations. Valentine alleged that Sandra sought to "trade up" by becoming involved with Fitch, and he testified as to the change in Sandra's lifestyle since she married Fitch. Years after Sandra and Valentine were divorced, Sandra and Fitch were married and were married at the time of trial.

¶ 108. This Court has established the required elements of an action for alienation of affections: (1) wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) a causal connection between the conduct and the loss. Bland, 735 So.2d at 417. However, in order to maintain an action for alienation of affections, "it must be established that the husband [wife, Sandra,] was induced to abandon the wife [husband, Valentine,] by some active interference on the part of the defendant [Fitch]." Stanton, 139 So. at 460. In Kirk, this Court again stated that the defendant must "directly and intentionally [interfere] with" plaintiff's marriage, thereby inducing the alienation of affections of the plaintiff's spouse. Kirk, 607 So.2d at 1223.

¶ 109. Here, according the record, the Valentines' marriage had deteriorated before Sandra began a relationship with Fitch. Nothing contradicted Sandra's assertion that she was the initiator of the relationship with Fitch. She testified that she had no affection left for Valentine for Fitch to have alienated. There is a lack of evidence that Fitch directly and intentionally interfered the Valentines' marriage by inducing Sandra's affections. While Fitch's and Sandra's conduct is clearly not admirable, the evidence fails to support a claim of alienation of affections.

¶ 110. Further, Valentine failed to present sufficient evidence of any economic loss to support the award of damages he received. Valentine's failure to present any evidence that he suffered financially from the alleged alienation of affections results in our inability to determine that he is entitled to an award of damages. The only argument advanced by Valentine was that he lost his house and physical custody of his son, J.V.

¶ 111. However, the record provides that Valentine voluntarily surrendered possession of the marital home to Sandra in the property settlement agreement signed by the parties. Sandra agreed to pay Valentine $32,500 for his interest in the house within 30 days of the agreement. Valentine also was granted a divorce on the grounds of adultery as part of the terms of the property settlement agreement.

¶ 112. In fact, the parties' property agreement specifically provided that Sandra would admit that Valentine was entitled to a divorce on the ground of adultery as a condition of the property settlement. Therefore, from the language of the settlement agreement, it is apparent that Valentine exchanged the possession and use of the marital home and received $32,500 for his interest in the house in return for Sandra's admission of adultery.

¶ 113. According to Sandra's testimony, Valentine never sought custody of J.V. Likewise, in the child custody agreement signed by the parties, Valentine allowed Sandra to have the "paramount permanent physical custody of the minor child," J.V., subject to his visitation rights. Sandra testified that Valentine was not paying his child support for J.V. as agreed in the divorce settlement. Valentine admitted that he exchanged the house and custody of J.V. for Sandra's admission of adultery. The record provides:

Q: Now, in the — what you ended up giving up, basically, is the house and the child, but what you got was an admission of adultery, didn't you?

A: Yes, sir.

Q: And that was very important to you, wasn't it?

A: At the time, yes, sir.

Q: Because you needed that admission of adultery to get here today, didn't you?

A: Yes, sir, I believe I did.

¶ 114. As shown above, Valentine testified that he exchanged possession of the house and physical custody of J.V. for the purposes of developing an alienation of affections lawsuit. However, Valentine later explained that his decision to agree to Sandra receiving physical custody of J.V. was also influenced by his desire to not separate J.V. from his sister, K.V.

¶ 115. Moreover, Valentine introduced no medical bills in support of any alleged damages he suffered. Valentine testified that he had gone to the hospital once for anxiety and was prescribed the medication, Paxil, by Dr. Ross Collins. He stated that he took the Paxil for only "a couple of months at the very most." However, no medical records were introduced and no medical charges were introduced by Valentine. Valentine testified that it was hard to focus on his business during the time following the divorce. However, he did not testify that he lost any business during that time. Likewise, Valentine did not testify that he lost any income as a result of the alleged alienation of affections.

¶ 116. Therefore, I find that the trial court erred in denying Fitch's motion for JNOV. Based on the record, the jury's verdict was incorrect and not based upon legally sufficient evidence to prove a claim of alienation of affections. I would reverse the judgment of the Circuit Court of Marshall County in the amount of $642,000 in actual damages and $112,500 in punitive damages, for a total of $754,500, in favor of Valentine and render judgment in favor of Fitch. As my decision to reverse and render judgment regarding the issue of JNOV, this assignment of error raised by Fitch is dispositive of the other issues he raised on appeal.