Love Affairs and Long-Arm Statutes

On Jan. 6, 2011, the Supreme Court of Mississippi affirmed Knight v. Woodfield, an alienation of affection case involving an affair between a married woman in Mississippi and a man who lived in Louisiana. The lovers were never together in Mississippi, yet the supreme court affirmed a lower court's use of Mississippi's long-arm statute to reach the Louisiana defendant. So, beware the married beauties in Mississippi … and Hawaii, Illinois, North Carolina, New Mexico, South Dakota and Utah. The tentacles from the seven states recognizing the tort of alienation of affection continue their broad reach throughout the 50 states.

Background

In the July, 2007, edition of this newsletter, we presented an overview of the tort of alienation of affection. We focused on the dire consequences facing folks who engage in interstate romantic relationships with married people residing in one of the states where this tort is still actionable. The article illustrated that such an illicit relationship may be more than a secret romp in a far-flung place. It could result in a lawsuit under the harsh lights of a distant courthouse.

This article revisits that subject. Recent cases have not only followed precedent regarding personal jurisdiction, but have signaled that a plaintiff's burden of showing “minimum contacts” by the out-of-state defendant has become lighter. It seems the tentacles of this tort are getting longer. Two cases, one in Mississippi and one in North Carolina, are examples of the far-reaching, and perhaps expanding, sweep of long arm statutes. As we concluded in the earlier article, unsuspecting philandering spouses might be getting far more than they bargain for when they become involved with people in one of the seven “alienation” states. That is surely still the case.

Alienation of Affection

Alienation of affection is a cause of action based on the wrongful, malicious and willful interference by a person with another's marriage. As a result of this interference, one member of the married couple loses affection for the other spouse, thus destroying the marriage.

At the root of this tort is an application of dusty old property law: A man's wife is his property subject to being stolen. It is based on the old belief that wives were the chattel of their husbands. The New York State legislature codified the tort in 1864. Most states followed, creating a cause of action by statute or common law. Many states later equalized the status of women and started recognizing wives' suits against interfering women who had stolen the affections of their husbands.

However, times changed and society's tolerance levels shifted. State legislatures across the country abolished the cause of action by legislative action. Some states did it by judicial decree. Lawmakers and courts recognized that spousal love is not a property right. One court held, “suits for alienation of affection are useless as a means of preserving the family. They demean the parties and the courts. … [S]pousal love is not property which is subject to theft.” Another said, “to posit that one person possesses rights to the feelings of another is an anachronism.”

Currently, only the seven states listed above still allow such a suit. The prima facie case of alienation of affection differs slightly from state to state. The burdens of proof vary, but the legal exposure is real.

Long-Arm Statutes

Virtually every state in America has a long-arm statute, which often determines whether a state court can exercise personal jurisdiction over a non-resident defendant. In determining whether a non-resident can be forced to defend a lawsuit, the “minimum contact” test is applied. This test assesses the extent of the non-resident defendant's connection with the forum state. If the connection does not reach the “minimum” level, then the forum state cannot exercise personal jurisdiction over the non-resident defendant.

The long-arm statutes in the seven states in which alienation suits may be brought are particularly important. They act as tentacles reaching out and grabbing unsuspecting defendants from states that do not recognize the tort of alienation of affection ' even if the defendant has never set foot in the forum state.

In Knight v. Woodfield, 50 So. 3d 995 (Miss. 2011) (corrected Feb. 1, 2011), Eric Woodfield sued William Knight for alienation of affection. Eric, and his wife, Kristina Dokka, lived in Long Beach, MS. Kristina commuted on a daily basis from her Mississippi home to Louisiana, where William Knight, a Louisiana resident, was her co-worker.

The Woodfields' marriage changed. Eric became suspicious about his wife's activities, so he examined her cell phone. He found hundreds of text messages between Kristina and William. He later confirmed an affair between the two. After attempts at reconciliation, the Woodfields divorced. Shortly thereafter, Eric filed suit against William in Mississippi. William filed a motion to dismiss for lack of personal jurisdiction, claiming that he and Kristina were never physically together in Mississippi.

Eric argued, in opposition to the motion to dismiss, that the e-mail and telephone communications between William and his wife were sufficient contact. Since Kristina was physically present in Mississippi, and William was communicating with her while she was in that state, Eric's loss occurred in Mississippi, and the damage occurred in Mississippi. The trial court agreed and denied William's motion to dismiss, finding that the injury, if any, potentially occurred within Mississippi due to the communications between Kristina and William while she was located in that state.

On appeal filed by William, the Mississippi Supreme Court had to determine whether: 1) under the state's long-arm statute the non-resident defendant was amenable to suit in Mississippi; and 2) exercising personal jurisdiction would offend traditional notions of fair play and substantial justice.

Mississippi's long-arm statute states, in relevant part:

Any nonresident person ' who shall commit a tort in whole or in part in this state against a resident ' of this state ' shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

The court found that William's texting, calling and e-mailing Kristina while she was in Mississippi were the direct and proximate cause of the alienation of affection. Thus, these actions were sufficient to show that William committed the tort, “in whole or in part, in Mississippi,” as required by the statute. Apparently, it did not matter to the Mississippi supreme court that Kristina's cell phone was registered in Louisiana and had a Louisiana telephone number.

The court held that Knight's actions originated in Louisiana, but were sufficient minimum contact with Mississippi for the purpose of personal jurisdiction. The court held that “[William] 'purposefully directed' his actions at a resident of [Mississippi] ' and the current litigation results from the alleged injuries that 'arose out of or relate to' [William's] actions.” Simply put, William's e-mails, texts and calls were sufficient minimum contact with Mississippi.

The Exercise of Jurisdiction

With respect to whether the exercise of jurisdiction would offend the traditional notions of fair play and substantial justice, the court first noted that Mississippi has a strong interest in providing a forum for its residents, especially since Louisiana does not recognize alienation of affection as a cause of action. The court also held that Mississippi was a convenient forum for both parties.

The court also opined that “permitting claims for alienation of affection protects the marriage relationship and provides a remedy to those who have suffered loss of consortium as a result of the conduct of others.” In conclusion, the court found that the maintenance of the suit in Mississippi “will not offend traditional notions of fair play and substantial justice.”

North Carolina

A recent North Carolina case indicates that the courts in that state are going to use the state's long-arm statute in these suits to drag in defendants even if the defendant has never even set foot in that state. In Brown v. Ellis, 696 S.E. 2d 813 (N.C. Ct. App. 2010), the plaintiff filed a suit for alienation of affections and criminal conversation in North Carolina. The defendant lived in Orange County, CA, and had never visited North Carolina. The defendant and the plaintiff's wife were co-workers who communicated by telephone and e-mail. The plaintiff alleged that he lived in North Carolina with his wife, that the defendant made calls to his wife in his presence, and that evidence relating to the defendant's contacts with his wife could be found in North Carolina. The North Carolina Court of Appeals found that the plaintiff did not allege that his wife was physically present in the state of North Carolina at the time of the defendant's alleged solicitations. Therefore, the court of appeals concluded the state did not have personal jurisdiction over the defendant under its long-arm statute. Brown v. Ellis, 646 S.E. 2d 408 (N.C.Ct.App. 2007).

However, the Supreme Court of North Carolina reversed, finding that North Carolina did have personal jurisdiction under the state's long-arm statute. Brown v. Ellis, 678 S.E. 2d 222 (N.C. 2009). The supreme court reasoned: “Although the complaint does not specifically state that the plaintiff's wife was physically located in North Carolina during the telephonic and email [sic] communications, that fact is nevertheless apparent from the complaint.”

On remand, the court of appeals addressed the defendant's constitutional arguments and found that the plaintiff had alleged sufficient facts to satisfy minimum contacts and that traditional notions of fair play and substantial justice would not be offended by maintenance of the suit in North Carolina. Brown v. Ellis, 696 S.E. 2d 813 (N.C. Ct. App. 2010). The court of appeals based its decision on the supreme court's ruling that the defendant's phone calls and e-mails to plaintiff's wife in North Carolina were sufficient contacts to satisfy the state's long-arm statute, in combination with the following factors:

• With regard to the quantity of the contacts between defendant and the forum state, the plaintiff alleged “almost daily” contact with his wife in North Carolina;
• The quality and nature of the contacts involved the defendant's pursuit of a sexual relationship with the plaintiff's wife;
• The defendant's contacts directly related to the plaintiff's cause of action for alienation of affection;
• The interest of the forum state was great because alienation of affection and criminal conversation are torts that have been abolished in many states, including California; and
• Even though it was inconvenient for the defendant to attend litigation in North Carolina, the plaintiff had alleged evidence was located in that state.

Conclusion

In summary, we can safely say that, in Hawaii, Illinois, Mississippi, North Carolina, New Mexico, South Dakota and Utah, love affairs and long-arm statutes conspire to ensnare. The tentacles from these seven states continue their broad reach throughout the land. The ever-expanding communications technology and social networking will do nothing to slow this trend.

William R. Wright, a member of this newsletter's Board of Editors, is a Diplomate in the American College of Family Trial Lawyers, a Fellow in the American Academy of Matrimonial Lawyers and a member of the International Academy of Matrimonial Lawyers.

On Jan. 6, 2011, the Supreme Court of Mississippi affirmed Knight v. Woodfield, an alienation of affection case involving an affair between a married woman in Mississippi and a man who lived in Louisiana. The lovers were never together in Mississippi, yet the supreme court affirmed a lower court's use of Mississippi's long-arm statute to reach the Louisiana defendant. So, beware the married beauties in Mississippi … and Hawaii, Illinois, North Carolina, New Mexico, South Dakota and Utah. The tentacles from the seven states recognizing the tort of alienation of affection continue their broad reach throughout the 50 states.

Background

In the July, 2007, edition of this newsletter, we presented an overview of the tort of alienation of affection. We focused on the dire consequences facing folks who engage in interstate romantic relationships with married people residing in one of the states where this tort is still actionable. The article illustrated that such an illicit relationship may be more than a secret romp in a far-flung place. It could result in a lawsuit under the harsh lights of a distant courthouse.

This article revisits that subject. Recent cases have not only followed precedent regarding personal jurisdiction, but have signaled that a plaintiff's burden of showing “minimum contacts” by the out-of-state defendant has become lighter. It seems the tentacles of this tort are getting longer. Two cases, one in Mississippi and one in North Carolina, are examples of the far-reaching, and perhaps expanding, sweep of long arm statutes. As we concluded in the earlier article, unsuspecting philandering spouses might be getting far more than they bargain for when they become involved with people in one of the seven “alienation” states. That is surely still the case.

Alienation of Affection

Alienation of affection is a cause of action based on the wrongful, malicious and willful interference by a person with another's marriage. As a result of this interference, one member of the married couple loses affection for the other spouse, thus destroying the marriage.

At the root of this tort is an application of dusty old property law: A man's wife is his property subject to being stolen. It is based on the old belief that wives were the chattel of their husbands. The New York State legislature codified the tort in 1864. Most states followed, creating a cause of action by statute or common law. Many states later equalized the status of women and started recognizing wives' suits against interfering women who had stolen the affections of their husbands.

However, times changed and society's tolerance levels shifted. State legislatures across the country abolished the cause of action by legislative action. Some states did it by judicial decree. Lawmakers and courts recognized that spousal love is not a property right. One court held, “suits for alienation of affection are useless as a means of preserving the family. They demean the parties and the courts. … [S]pousal love is not property which is subject to theft.” Another said, “to posit that one person possesses rights to the feelings of another is an anachronism.”

Currently, only the seven states listed above still allow such a suit. The prima facie case of alienation of affection differs slightly from state to state. The burdens of proof vary, but the legal exposure is real.

Long-Arm Statutes

Virtually every state in America has a long-arm statute, which often determines whether a state court can exercise personal jurisdiction over a non-resident defendant. In determining whether a non-resident can be forced to defend a lawsuit, the “minimum contact” test is applied. This test assesses the extent of the non-resident defendant's connection with the forum state. If the connection does not reach the “minimum” level, then the forum state cannot exercise personal jurisdiction over the non-resident defendant.

The long-arm statutes in the seven states in which alienation suits may be brought are particularly important. They act as tentacles reaching out and grabbing unsuspecting defendants from states that do not recognize the tort of alienation of affection ' even if the defendant has never set foot in the forum state.

In Knight v. Woodfield , 50 So. 3d 995 (Miss. 2011) (corrected Feb. 1, 2011), Eric Woodfield sued William Knight for alienation of affection. Eric, and his wife, Kristina Dokka, lived in Long Beach, MS. Kristina commuted on a daily basis from her Mississippi home to Louisiana, where William Knight, a Louisiana resident, was her co-worker.

The Woodfields' marriage changed. Eric became suspicious about his wife's activities, so he examined her cell phone. He found hundreds of text messages between Kristina and William. He later confirmed an affair between the two. After attempts at reconciliation, the Woodfields divorced. Shortly thereafter, Eric filed suit against William in Mississippi. William filed a motion to dismiss for lack of personal jurisdiction, claiming that he and Kristina were never physically together in Mississippi.

Eric argued, in opposition to the motion to dismiss, that the e-mail and telephone communications between William and his wife were sufficient contact. Since Kristina was physically present in Mississippi, and William was communicating with her while she was in that state, Eric's loss occurred in Mississippi, and the damage occurred in Mississippi. The trial court agreed and denied William's motion to dismiss, finding that the injury, if any, potentially occurred within Mississippi due to the communications between Kristina and William while she was located in that state.

On appeal filed by William, the Mississippi Supreme Court had to determine whether: 1) under the state's long-arm statute the non-resident defendant was amenable to suit in Mississippi; and 2) exercising personal jurisdiction would offend traditional notions of fair play and substantial justice.

Mississippi's long-arm statute states, in relevant part:

Any nonresident person ' who shall commit a tort in whole or in part in this state against a resident ' of this state ' shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

The court found that William's texting, calling and e-mailing Kristina while she was in Mississippi were the direct and proximate cause of the alienation of affection. Thus, these actions were sufficient to show that William committed the tort, “in whole or in part, in Mississippi,” as required by the statute. Apparently, it did not matter to the Mississippi supreme court that Kristina's cell phone was registered in Louisiana and had a Louisiana telephone number.

The court held that Knight's actions originated in Louisiana, but were sufficient minimum contact with Mississippi for the purpose of personal jurisdiction. The court held that “[William] 'purposefully directed' his actions at a resident of [Mississippi] ' and the current litigation results from the alleged injuries that 'arose out of or relate to' [William's] actions.” Simply put, William's e-mails, texts and calls were sufficient minimum contact with Mississippi.

The Exercise of Jurisdiction

With respect to whether the exercise of jurisdiction would offend the traditional notions of fair play and substantial justice, the court first noted that Mississippi has a strong interest in providing a forum for its residents, especially since Louisiana does not recognize alienation of affection as a cause of action. The court also held that Mississippi was a convenient forum for both parties.

The court also opined that “permitting claims for alienation of affection protects the marriage relationship and provides a remedy to those who have suffered loss of consortium as a result of the conduct of others.” In conclusion, the court found that the maintenance of the suit in Mississippi “will not offend traditional notions of fair play and substantial justice.”

North Carolina

A recent North Carolina case indicates that the courts in that state are going to use the state's long-arm statute in these suits to drag in defendants even if the defendant has never even set foot in that state. In Brown v. Ellis , 696 S.E. 2d 813 (N.C. Ct. App. 2010), the plaintiff filed a suit for alienation of affections and criminal conversation in North Carolina. The defendant lived in Orange County, CA, and had never visited North Carolina. The defendant and the plaintiff's wife were co-workers who communicated by telephone and e-mail. The plaintiff alleged that he lived in North Carolina with his wife, that the defendant made calls to his wife in his presence, and that evidence relating to the defendant's contacts with his wife could be found in North Carolina. The North Carolina Court of Appeals found that the plaintiff did not allege that his wife was physically present in the state of North Carolina at the time of the defendant's alleged solicitations. Therefore, the court of appeals concluded the state did not have personal jurisdiction over the defendant under its long-arm statute. Brown v. Ellis , 646 S.E. 2d 408 (N.C.Ct.App. 2007).

However, the Supreme Court of North Carolina reversed, finding that North Carolina did have personal jurisdiction under the state's long-arm statute. Brown v. Ellis , 678 S.E. 2d 222 (N.C. 2009). The supreme court reasoned: “Although the complaint does not specifically state that the plaintiff's wife was physically located in North Carolina during the telephonic and email [sic] communications, that fact is nevertheless apparent from the complaint.”

On remand, the court of appeals addressed the defendant's constitutional arguments and found that the plaintiff had alleged sufficient facts to satisfy minimum contacts and that traditional notions of fair play and substantial justice would not be offended by maintenance of the suit in North Carolina. Brown v. Ellis , 696 S.E. 2d 813 (N.C. Ct. App. 2010). The court of appeals based its decision on the supreme court's ruling that the defendant's phone calls and e-mails to plaintiff's wife in North Carolina were sufficient contacts to satisfy the state's long-arm statute, in combination with the following factors:

• With regard to the quantity of the contacts between defendant and the forum state, the plaintiff alleged “almost daily” contact with his wife in North Carolina;
• The quality and nature of the contacts involved the defendant's pursuit of a sexual relationship with the plaintiff's wife;
• The defendant's contacts directly related to the plaintiff's cause of action for alienation of affection;
• The interest of the forum state was great because alienation of affection and criminal conversation are torts that have been abolished in many states, including California; and
• Even though it was inconvenient for the defendant to attend litigation in North Carolina, the plaintiff had alleged evidence was located in that state.

Conclusion

In summary, we can safely say that, in Hawaii, Illinois, Mississippi, North Carolina, New Mexico, South Dakota and Utah, love affairs and long-arm statutes conspire to ensnare. The tentacles from these seven states continue their broad reach throughout the land. The ever-expanding communications technology and social networking will do nothing to slow this trend.

William R. Wright, a member of this newsletter's Board of Editors, is a Diplomate in the American College of Family Trial Lawyers, a Fellow in the American Academy of Matrimonial Lawyers and a member of the International Academy of Matrimonial Lawyers.