Hafner v. HafnerHafner v. Hafner
- Reporters:
- ,
- Before:
- King J.C.C.
Defendants move for summary judgment on the ground that this action is barred by New Jersey‘s Heart Balm Act,
The complaint, drawn in one count, alleges that plaintiff was married to Fred Hafner, now deceased, on December 30, 1966. Defendant Otto Hafner is Fred Hafner‘s son by a previous marriage, and defendant Jane Hafner is Otto Hafner‘s wife. While plaintiff was on a trip to California in June of 1971, her husband suffered a stroke and was removed to his son‘s residence. Plaintiff returned to New Jersey on June 27, 1971 and discovered her husband‘s whereabouts after some investigation, but was refused permission to visit him by defendants. Plaintiff alleges that her husband was being detained by defendants against his will and would have returned to his marital home if permitted to do so. A court order, rendered on October 1, 1972, permitted plaintiff to visit her husband at defendants’ residence and enjoined defendants from interfering in any way with the visits. Plaintiff alleges that during visitations pursuant to that order she was subjected to harassment and ridicule by defendants, and was interfered with in her attempted conversations with her husband. Ultimately, on February 23, 1972 defendants were ordered by the court to deliver Fred Hafner to the custody of plaintiff, which they did on February 24, 1972. Fred Hafner died on February 25, 1972.
Also set forth in the complaint is the allegation that plaintiff was deprived of support and maintenance for an eight-month period as a result of defendant Otto Hafner‘s intentional and wrongful acts. Defendant allegedly obtained a power of attorney in a fraudulent manner over the property
The cause of action for alienation of affections consists of wrongful conduct by a defendant which interferes with the marital relationship between spouses to the extent of causing a loss of consortium. Grobart v. Grobart, 5 N.J. 161 (1950); 42 C.J.S. Husband and Wife § 664 at 319; 41 Am. Jur.2d, Husband and Wife, § 466 at 393; see also, Prosser on Torts (3 Ed. 1964), § 118 at 895; Restatement, Torts, § 683 et seq. (1938). The gravamen of the action is the loss of consortium, that is, the loss of marital affections, comfort, society, assistance and services of a spouse who has been wrongfully enticed away. Grobart v. Grobart, supra; Devine v. Devine, 20 N.J. Super. 522 (Ch. Div. 1952).
Plaintiff admits that paragraphs 17 and 18 of the complaint1 arguably fall within the right of action abolished by
In most of these cases the courts have talked of a somewhat dubious “property right” to the body, usually in the next of kin, which did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that such “property” is something evolved out of thin air to meet the occasion, and that it is in reality the personal feelings of the survivors which are being protected, under a fiction likely to deceive no one but a lawyer.
Where the tort has been recognized it is generally agreed that the wrongful conduct must be so extreme and outrageous “as to go beyond all possible bounds of decency, and
The inquiry does not end here, however. Plaintiff alleges that defendant fraudulently obtained control over his father‘s finances and wrongfully deprived her of support for an eight-month period. The novel question presented is whether the Heart Balm Act bars recovery for wrongful interference with a wife‘s common law and statutory right to receive support from her husband.2 Some guidance may be found on this point in the Grobart decision, supra. Plaintiff there sued her brothers and sisters-in-law for maliciously conspiring to injure plaintiff in her marital relations with her husband. Plaintiff claimed they fraudulently and deceitfully reprived her of certain rights in her husband‘s real and personal property, prevented her from pursuing a suit for maintenance against her husband, forced her to compromise certain claims she had as her husband‘s spouse for less than their true value, and engaged in other actions which suggested elements
The intention of the lawmakers was to prevent extortion and blackmail that often accompanied the institution of the actions specifically outlawed by the statute, but it was not intended to reach further and prohibit all actions involving property and personal rights not subject to those abuses in which actions married people are concerned. [5 N.J. at 167]
In essence, the court held that where recovery is not sought for loss of the conjugal society and services of a spouse, the action is not barred. Similarly, in Morris v. MacNab, 25 N.J. 271 (1952), the Supreme Court, citing Feinsinger, “Legislative Attack on Heart Balm,” 33 Mich. L. Rev. 979, 1000 (1935), iterated its position with respect to the Heart Balm Act as follows:
* * * courts cannot escape the burden of construing legislation as sweeping as this, so as to eliminate the evils aimed at without destroying rights not considered by the legislative, whose continued existence may be important to society and to individuals. [at 276]
See also, Stickles v. Manss, 36 N.J. Super. 95 (1955) (valid claim of libel not barred where allegations might support action for alienation of affections); Devine v. Devine, supra (injunctive relief to restrain third person from alienating the affections of a spouse not barred by statute).
Of crucial significance here is the allegation that defendant, as agent and attorney in fact for plaintiff‘s husband, directly and personally interfered with the payment of support to plaintiff. It is well established that where an agent has full and exclusive control over the property involved, he is liable to third persons for his tortious acts, even where he received no benefit from his wrong. 3 C.J.S. Agency § 379 at 201-202. In the Devine case, supra, plaintiff brought suit against her mother-in-law alleging, in part, that
Authority from other jurisdictions on the question of whether allegations of wrongful interference with right to support make out a cause of action separate from alienation of affections is sparse. In Lavigne v. Lavigne, 80 N.H. 559, 119 A. 869 (Sup. Ct. 1923), it was held that “the gist of the action [for alienation of affections] is not the deprivation of support, but the loss of consortium of the husband, which includes his affection, conjugal society, aid and cooperation.” 119 A. at 871. See contra, Sebastion v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (Ct. App. 1969); Nelson v. Nelson, 296 F. 369 (2 Cir.1924); Restatement, Torts, § 690, Comment (b) at 487 (1938); 42 C.J.S. Husband and Wife § 665 at 319.
The court finds that plaintiff‘s allegation relating to defendant‘s wrongful deprivation of support payments constitutes a cause of action which is independent of the causes of action barred by
Defendants argue alternatively with regard to support that the issue was previously litigated and rejected by the court on February 23, 1971, when defendants were ordered to deliver Fred Hafner to plaintiff‘s custody. However, neither plaintiff‘s moving papers seeking the return of her husband nor the opinion of Judge Lowengrub indicate that the precise cause of action alleged here — defendant‘s tortious interference with plaintiff‘s legal right to obtain support — was in fact previously litigated. Judge Lowengrub merely ordered the payment of $100 a week for plaintiff‘s prospective maintenance and support. Accordingly, defendants’ motion for summary judgment on plaintiff‘s allegation relating to support payments is denied.
Notes
18. The acts of defendants, Otto Hafner and Jane Hafner, aforementioned were a substantial factor in causing plaintiff to lose the services, society, and conjugal affection of Fred Hafner.