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Adultery: Intentional Infliction Claims

When clients that have been cheated on come in, the first question any creative attorney asks is, “What can I do to gain an advantage and really give the other side something to lose?"


You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat. 


Common sense suggests that there must be a Tort that will work. There must be a way to sue the cheater, you think.  Maybe there is.


As recently as 2003, several states, including Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah, still recognized Alienation of Affections (“Alienation”).


In fact, on January 7, 2008, the U.S. Supreme Court refused to hear an Alienation case in which a Mississippi businessman suffered a judgment of $750,000.00 for having an affair with a married woman. The case was brought by the woman’s ex-husband, post-divorce, for the “loss of society, companionship, love and affection, and sexual relations” the innocent spouse had suffered because of his ex-wife’s paramour under Mississippi’s Alienation of Affection statute.


Although six-digit awards against individuals for intentional torts don’t raise many eyebrows in and of themselves, due to problems of enforceability and the “blood-from-a-turnip" principal, the Mississippi case is tantalizing enough to catch one’s attention.  There, the cheating defendant has been described as a "wealthy realtor and successful businessman," the Mississippi Supreme Court upheld the judgment, and as mentioned, the U.S. Supreme court denied cert., so the Mississippi plaintiff may get a nice payday.


That combination of factors leads the creative Texas practitioner to ask: Can that happen here?  Can I get that type of result for my client?  Since at least 1987, the answer most often given has been: probably not.  A careful analysis of Texas case law, including a 2004 Houston 14th District case, however, changes the answer to a strong maybe.




At one point or another, in most if not all jurisdictions, the “Heart Balm Torts” were available to allow the innocent, whose heart needed the balm of judicial relief, redress.  Those torts included Alienation of Affections, Criminal Conversation, Seduction, and Breach of Promise to Marry. None of the four still exist in Texas, at least not as conventionally thought of.  While Seduction and Breach of Promise are beyond the scope of this article, a discussion of Criminal Conversation and Alienation of Affections is useful in the examination of whether the payday discussed above is possible in Texas.


It’s unclear exactly when Alienation of Affections first appeared in Texas law, and it’s unclear whether it ever didn’t exist.  A look at its genesis leads to Germanic tribal law. There, men were entitled to payment from the wife's lover so that the husband could purchase a new spouse.   The theory was that this would “ensure pure bloodlines and discourage adultery.” Following the Germanic tradition, the Anglo-Saxons established a mechanism to allow compensation for “interference with the marital relationship” that had as its justification the fact that “wives were viewed as valuable servants to their husband.”


Early English common law carried on the tradition of compensation for the innocent males with causes of action for seduction and enticement, which were the progeny of the Germanic and Anglo-Saxon laws.  Those causes of action eventually appeared in the United States and became the torts known as Alienation of Affections and Criminal Conversation.


In 1840, the Congress of the Republic of Texas enacted a statute which read:  "The common law of England (so far as it is not inconsistent with the Constitution and laws of this State) shall, together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature." While that 1840 law may appear to be an unambiguous statement of Texas law, 73 years later, the Texas Supreme Court was still unclear, when it said, “We must first ascertain what the Congress of the Republic intended to designate by the language: ‘The common law of England.’" They concluded that "’the common law of England’ adopted by the Congress of the Republic was that which was declared by the courts of the different States of the United States.”


The circularity of that logic highlights the lack of clarity as to the origins of Alienation and Criminal Conversation in Texas.  One thing is for certain, however, Texans were suing each other under Heart Balm theories throughout the 19th and early 20th Century.


Alienation of Affections is one of those wonderful torts that make it easy for everyone because its name says it all.  Criminal Conversation, on the other hand, is the exact opposite.  It leaves most attorneys that passed the bar after the mid-1970's with the same question: Huh?  In short, Criminal Conversation is the tort that, pardon the pun, marries up with adultery.  Although Prosser and Keeton state that the “criminal” part of the name derives from the fact that adultery was an “ecclesiastical crime,” at one time in Texas it was also an actual crime.


The elements of Alienation of Affections were as follows: (1) that the defendant intentionally or purposely enticed away the spouse, (2) that there has been loss of affection or consortium, and (3) that defendant's conduct was the controlling cause of the loss.


The elements for criminal conversation were as follows: (1) An actual marriage between the spouses, and (2) Sexual intercourse between the defendant and the guilty spouse during the coverture [the inclusion of a woman in the legal person of her husband upon marriage under common law].”


In 1987, abrogating over 1000 years of law and tradition the Texas Legislature amended the Texas Family Code to abolish the tort of Alienation of Affections, having done the same to Criminal Conversation in 1975. Theoretically, at least, that would put an end to Heart Balm in the state of Texas.   As the old saying goes, however, “if at first you don't succeed, try, try again."  In the law, that can often be translated as: just because you can't sue someone one way, doesn't mean you can't sue them another.




The Texas Supreme Court specifically adopted the tort of Intentional Infliction of Emotional Distress a/k/a Intentional Infliction of Mental Anguish (“Intentional Infliction”) in the 1993 case of Twyman v. Twyman. Twyman was a divorce case in which the wife alleged that her husband “‘intentionally and cruelly’ attempted to engage her in ‘deviate sexual acts.’” Following a bench trial in which the court awarded Mrs. Twyman $15,000.00 plus interest on her “emotional distress” claim, the husband appealed.


Twyman was significant for both its specific adoption of the Intentional Infliction claim, and its added recognition that there was no prohibition on bringing it in a divorce action. Prior to Twyman, some Texas appellate courts had recognized Intentional Infliction in limited circumstances, but the Houston Fourteenth District had specifically barred its use in divorce cases.


For the first 140 years or so of Texas jurisprudence, the question of one spouse’s ability to sue the other for Intentional Infliction never came up.  As the Twyman court points out, it wasn’t until 1977 that the Texas Supreme Court did away with interspousal immunity for intentional torts. Ten years later, they did away with interspousal immunity completely.


With Twyman the law, the time was right for someone to bring a tort case against his or her spouse, and presumably the spouse’s paramour, for Intentional Infliction.  Now that it’s 2008, the time has been right for fifteen years.  So why do both a leading legal treatise and most recent paper on the topic presented as part of the “Family Law Torts” webcast, produced by the State Bar of Texas Continuing Legal Education department state, “Intentional infliction claims in which the outrageous behavior involved an adulterous liaison probably will not be permitted in Texas,” or words to that effect?


Given that both of those sources cite the same case as their only authority for that position, clearly, an examination of that case is in order.  The case upon which they rely is Truitt v. Carnley.


In Truitt, the Fort Worth Court of Appeals considered a case in which an aggrieved spouse sued the paramour of his adulterous spouse.  Mr. Truitt had apparently had an affair with Ms. Carnley.  Mrs. Truitt’s action alleged that Mrs. Carnley “either intentionally or negligently” caused her to “suffer mental anguish.” 


The plaintiff lost, both at the trial level and in the court of appeals.  The Truitt court held that “Truitt’s suit against Carnley was necessarily based upon either one or both” Alienation or Criminal Conversation.  Since those had both been abolished, the court reasoned, the plaintiff could not prevail.  That, however, was 1992, prior to Twyman, and in essence the court was simply refusing to adopt Intentional Infliction as an intermediate court.


Following Twyman, in 1994, the Fort Worth Court again examined a case in which adultery took center stage.[31]  Stites v. Gillum, was the appeal of a sanction that was imposed upon a Fort Worth attorney who represented the wife in a divorce. As a part of his counter-petition on behalf of his client, the attorney impled the alleged paramour of his client’s spouse.  His pleading was entitled “Suit Against Third Party Counter-Respondent for Impairment and Interference with Familial Relationship.”


The paramour moved for and was granted a summary judgment using the same argument as the Truitt defendant. She alleged that the claims against her were either Criminal Conversation or Alienation, and since both of those had been abolished, the pleading could not stand, as a matter of law.  Apparently unlike the Truitt defendant, however, she was not content to stop there.


Following her summary judgment victory, the paramour moved for Rule 13 sanctions against the attorney. The trial court found that the pleading was “an action for ‘alienation of affections’ couched in other terms” and that it was “not an action seeking damages for intentional infliction of emotional distress.” The court found further that the attorney’s filing was groundless and in bad faith, and imposed an $18,000.00 sanction against him.


In his defense, the sanctioned attorney argued, inter alia, that he was “modifying or extending existing law on the causes of action ‘Interference with Familial Relationship’ and ‘Intentional Infliction of Emotional Distress.’” The appellate court found that, although “intentional interference with the relationship of the parent and child is actionable,”  no tort of “Interference with Familial Relationship existed “as applied to the factual situation” they were considering. Accordingly, they dismissed Stites’ “modifying or extending” argument with respect to his “familial relationship” defense.


As for Intentional Infliction, the appellate court used a much more creative analysis.  They discussed the Twyman court’s recognition of the tort in 1993, but pointed out that since the attorney’s counter-petition was filed in 1990, that didn’t apply. They then moved on, however, to talk about how in 1990 there were “intermediate appellate opinions adopting in Texas the tort of intentional infliction of emotional distress in various fact situations.” The Court discussed the elements of Intentional Infliction, and determined that the sine qua non of the tort is “extreme and outrageous” conduct. Because they determined that the counter-petition contained no allegations of such conduct, they held that it could not be “reasonably inferred” that the attorney intended to plead such a tort.


In its discussion, however, it is important to note that the Fort Worth Court of Appeals stated that, “It is perhaps conceivable that, notwithstanding the prohibition of section 4.06 of the Family Code abolishing the cause of action of alienation of affections by one spouse against a third party, an argument could be made that the cause of action of intentional infliction of emotional distress was viable and should be extended to a situation involving a spouse bringing the cause of action against a third party for conduct involving the other spouse.” The court went on to say, that “we expressly do not decide the viability of such a cause of action in circumstances such as those in the case before us.”


The appellate court held that the attorney’s pleadings “purport to allege only a cause of action for interference with familial relationship, and do not allege a cause of action for” Intentional Infliction. The court upheld the $18,000.00 sanction and it was ten more years before another reported Texas case involved the pursuit of tort liability against a cheating spouse or paramour thereof.


In 2004, the Houston 14th District Court of Appeals considered a constitutional challenge under the Open Courts provision of the Texas Constitution to the Family Code provisions that abolished Alienation and Criminal Conversation. In Smith v. Smith, the plaintiff was presumably the former Mrs. Smith, and the defendant the latter.  The defendant was alleged to have had an affair with the husband of the plaintiff.


The court outlined the analysis to be used in an Open Courts challenge as follows: “Thus, a plaintiff must satisfy two criteria: first, a well-established common law cause of action must be restricted; and second, the restriction must be unreasonable or arbitrary when balanced against the purpose and basis of the statute.” With respect to the second prong, the court stated that it must “consider both the general purpose of the statute and the extent to which the litigant’s right of redress is affected.” In other words, did the legislature have a good enough reason and are there other judicial methods to right the wrong – so the two-prong test really has a third prong.


The Smith court held that both §§ 1.106 and 1.107 of the Texas Family Code were constitutional and therefore upheld the statutory abolition of Criminal Conversation and Alienation.  Despite the suspect reasoning of the court on two of the three prongs, the court’s commentary illuminates the path to redress for the next cheated-upon litigant.


In explaining its rationale with respect to Criminal Conversation, the court states that a cheated-upon spouse “may also be able to bring a cause of action for intentional infliction of emotional distress against the offending spouse and against a third party based on interference with the marriage relationship.” In analyzing Alienation, the court stated that the relief available to a cheated upon spouse includes “bringing a cause of action for intentional infliction of emotional distress.”




So how does the cheated-upon client get relief?  Plead for Intentional Infliction of Emotional Distress.  If the facts support it, implead the paramour, or consider filing a separate action against him or her.  As for the obstacles you’ll face, hurdle them one at a time.         


Hurdle 1: You can’t bring that based upon adultery


Any case prior to Twyman that suggests an inability to bring an Intentional Infliction action is suspect, at best.  Specifically, the Truitt analysis that suggests that any Intentional Infliction claim in a divorce is really Alienation or Criminal Conversation in disguise, is simply outdated and wrong.


Stites illustrates that the key to having your pleading recognized as an actual pleading for Intentional Infliction rather than an attempt to “plead around” Alienation is in the facts you allege and the characterization you make.  InTwyman, the “extreme and outrageous” conduct alleged by the plaintiff included a “continuing course of conduct” of “sadomasochistic bondage activities” which Mr. Twyman insisted Mrs. Twyman participate in, despite his knowledge that “she feared such activities because she had been raped at knife-point before their marriage.” Therefore, make sure your pleading alleges specifically that the conduct was “extreme and outrageous” and have facts to back it up.       


Hurdle 2: You can’t prove that the intent of the action was to cause the plaintiff distress


Twyman makes clear that the “factfinder should be permitted to consider whether [the defendant] knew with substantial certainty that [his/her] actions would probably cause [the plaintiff] emotional harm.” Additionally, the Court expressly approves the language of the Restatement to the effect that the tort “includes situations in which the actor recklessly inflicts emotional distress,” and describes that as being when the tortfeasor “knows or has reason to know . . . of facts which create a high degree of risk of . . . harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to that risk.” Therefore, include in your allegations that the emotional distress and mental anguish was inflicted recklessly.       


Hurdle 3: Some of the case law that suggests this as a viable cause of action speaks in terms of a claim that “may be” available


The Smith court recognized that an important element to consider in the constitutional analysis of a statute which eliminates an established cause of action is the availability of another method to right the wrong.  With respect to Criminal Conversation, the Court stated that Intentional Infliction may be available to protect the aggrieved; with respect to Alienation, the court removed the word “may.”  Therefore to take the position that that relief is not available is really to argue against the abolition of Criminal Conversation and Alienation of Affections.  Offering to plead those two old torts in the alternative to your Intentional Infliction claim and challenge the constitutionality of §§ 1.106 and 1.107, should go a long way in negotiating this hurdle.  It seems unlikely that any defendant would invite such a complication.       


Hurdle 4: One of the last lawyers that attempted to impose tort liability on a cheating spouse and paramour got sanctioned


Remember, the law available now was not on the books in 1990 when that lawyer filed his pleading, and his pleading did not allege the elements of Intentional Infliction.  If you have the facts specifically supporting a finding of “extreme and outrageous” conduct which “intentionally or recklessly” caused your client emotional distress, and plead them properly, you should be able to overcome this hurdle.


At the end of the day, all that’s standing between your cheated-upon client and a Mississippi-like payday may be a carefully crafted petition, and advocacy skills in explaining to a district judge how the law and your pleadings differ from those of the sanctioned attorney. 


So, there you have it. Now, when that cheated-upon client comes to you and asks, "Isn't there anything I can do to that woman?" You will at least be ready with a strong "Maybe!" And a "maybe" plus advocacy may just be enough.

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