Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, January 8, 2006

Case Law Development: Clergy Malpractice Case is Dismissed as in Substance Alienation of Affections Action

The Alabama Supreme Court has held that the legislature's abolition of heart balm torts required dismissal of a claim styled as negligence, but in substance, was an alienation of affections action.  The claim was by Husband against the minister who had provided marriage counseling for Husband and Wife, while at the same time having a sexual relationship with Wife.  When Husband discovered the affair, he divorced Wife and sued the minister for negligent counseling.  A jury awarded compensatory and punitive damages and the trial court denied minister's post judgment motion for judgment as a matter of law. 

The Supreme Court of Alabama reluctantly reversed, finding that the legislature had spoken clearly on the issue of heart balm torts and finding that all the factual allegations of Husband's claim were based on the damages caused by the minister's sexual relationship with Wife.  Noting that other states have taken a similar "substance over form" approach, the court held that the action must be dismissed. 

Concurring opinions provided commentary on the role of the judiciary in a case such as this: "Following a clear legislative command and adhering to the doctrine of stare decisis is not always a pleasant duty for a judge. 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.... I fully recognize that I am not employed by the people of this State to enforce through judicial fiat my personal views of sound legislative policy. If I thought otherwise, I would have voted to affirm the judgment in this case. However, I do take the title of "Justice" to be more than a platitude; I believe it reflects a responsibility to call attention to a situation deserving of further consideration when I deem myself required by my oath to reach a result that is personally offensive. Today is just such an occasion."

Bailey v. Faulkner, 2006 Ala. LEXIS 2 (January 6, 2006)(bgf)

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