Radecki v. Schuckardt
361 N.E.2d 543
Ohio Ct. App.
1976
Check Treatment
Brown, P. J.

The two plaintiffs, appellees herein, filed an action for the alienation of affections of1-their wives against defendants Bishop Francis K; Schuckardt and Christ the King Priory* Inc., in the LucaS Cotihty Court of Common: Pléás. A jury returned a verdict of. $33*000 Co'mpensatory and $15,000 punitive damages in- favor- of-the plaintiffs’;1 Fr'óiu that judgment the defendants appeal.

• • Bishop ’ Francis K. Schuckardt and1 'Christ the■' King Priory,. Inc., an Idaho non-profit corporation, profess to represent the true'Roman Catholic Church. Bishop Sehuckardt and the church he heads disagree with many of the *93 changes in the Catholic Church made after the Vatican, II Council. .Catherine and Emily Eadecld, wives of,plain-, tiffs Joseph apd Henry Eadecld, respectively; became interested in Bishop Schuckardt’s version of the ,Catholic, religion in 1963. Catherine and Emily encouraged. B-jshop Schuekardt to lecture in Toledo. This association with the. teachings of Bishop Schuekardt led to friction between the two marriage partners. Because of the concern of Catherine and Emily that their children receive proper religious training in the manner prescribed by Bishop Schuekardt; Emily and Catherine sent their youngest children to Bishop. Schuckardt’s school and religious center in Coe'ur d’Alene,. Idaho. Eigorous discipline, close supervision and extensive religious indoctrination of the children existed in this school. Joseph Eadecki flew to Coeur d’Alene, Idaho, in August, 1973, to bring the Eadecki children back, to Toledo.. The wives successfully hid the children from . Joseph Eadecki. , ...

The ten-day trial resulted in four volumes of testiinony and trial proceedings. Much of the evidence is irrelevant. It is unrelated to the issue pertaining to alienation of affections of plaintiffs’ wives. For example, there. is. a. seemingly endless array of witnesses and testimony pertaining to unrelated, incidents and dealings between defendants and third persons having no connection with plaintiffs’ claims, a detailed exposition of religious doctrine and teachings .by defendants, and a comparison- ;or, contrast, of defendants’ teachings with the doctrine of the established Catholic Church which recognizes the Pope, as its head. Volumes of testimony were elicited on a comparison of the school systems and the interpretation and thrust, of the Pauline Privilege and its misapplication. . ■ ,

Divorce actions are now pending between the Eadecki 3naniagepartners. •• .

The first four assignments of error in essence contend that the evidence is insufficient to. sustain .a-.yerdici for plaintiffs, thai the verdict for plaintiffs is...contrary , to law, and that, a directed verdict and judgment fc¡r, .defend-; ants notwithstanding the .verdict should have been -granted, *94 to défendants by the trial court. The thrust of defendants’ brief is that defendants are entitled to a final judgment and that the .Court of Appeals is empowered to render such'judgment on the record in this case; •

The requisite elements of alienation of affections are stated in Trainor v. Deters (1969), 22 Ohio App. 2d 135.

Paragraph one of the syllabus states:

- “Alienation of affections is the commission of a willful and malicious injury. And, in an action seeking recovery therefor, it is' necessary that plaintiff prove that defendant was the aggressor, or at the very least, aided or abetted the transfer or diversion of the affections of the errant spouse; that is, that defendant wrongfully, maliciously aind intentionally enticed; induced, persuaded and caused plaintiff’s spouse to lose affection for plaintiff and that defendant intended to bring about the alienation.” See also, Holtz v. Dick (1884), 42 Ohio St. 23; 28 Ohio Jurisprudence 2d 268, Husband and Wife, Section 143; Annotation 19 A. L. R. 2d 471, 472, 486, Sections 2 and 3; Prosser, Law of Torts (4th Ed. 1971), Section 124.

In the case at bar, the alleged misconduct by the defendants' is the disseininatión of the belief that a person should follow the Bishop Schuckardt approach to the Catholic faith and, if necessary, a person should leave a spouse who interferes with such, practice of religion. This kind of advocacy of a religious faith and tenets incident thereto is not illegal. Bradesku v. Antion (1969), 21 Ohio App. 2d 67. In Bradesku v. Antion, the plaintiff brought a:n action for alienation of affections against the Radio Church of Cod and its minister for explaining to his wife that marriage to a divorced man is an adulterous act and that a divorced man does not' have a right to reniairy. The court in Bradesku stated, at page 73:

“The right to advocate and to disseminat'e'-any religious faith, no matter how offensive or ridiculous to others, short of a faith dedicated to the overthrow of the government by force; is guaranteed by the Constitution of the-United States, arid is binding on the states. See: School District of Abington v. Schempp, 374 U.S. 203.”

*95 See also, Hughes v. Holman (1924), 110 Ore. 415, 223 P. 730; Wisconsin v. Yoder (1972), 406 U. S. 205, 214-215; Cantwell v. Conn. (1940), 310 U. S. 296, 310; Reynolds v. United States (1878), 98 U. S. 145 (prohibition of polygamy); Annotation 31 A. L. R. 1115; Carrieri v. Bush (1966), 69 Wash. 2d 536, 419 P. 2d 132, distinguishable.

In the ease sub judice, there is no evidence to raise a jury issue that the defendants intended to bring about the destruction of the marriages in question. The suggestion by defendant Schuckardt for a place to secrete the Eadeeki children so that plaintiffs could not reach them, when Catherine and Emily Eadeeki sought Schuekardt’s advice on keeping the children out of reach of plaintiffs, constituted no proof that defendants caused plaintiffs’ spouses to lose affection for plaintiffs under the standards prescribed by Trainor, supra. We are not concerned in this case with a claim by a parent against a third party who maliciously alienates the affections of a minor child. *

In the absence of improper motives, a religious sect has a lawful right to solicit members and to express views relevant thereto if there is nothing unlawful, improper, or immoral in such activity. Hughes v. Holman, supra; cf. 1 Harper & James, Torts (1956), Sections 8.3 and 8.4; Annotation 71 A. L. R. 3d 794.

Plaintiffs contend that the evidence is sufficient to show a right to recover for alienation of affections because the facts fall within the parameters of the principles evolved in shunning cases. Bear v. Reformed Mennonite Church (1975), 462 Penn. 330, 341 A. 2d 105.

In Bear, supra, shunning involved an order of the defendant church and bishops to all members of the *96 church, including plaintiff’s wife and children, to shun the plaintiff who had been excommunicated. As a consequence, plaintiff’s wife and children, under such order, did not have any social or physical contact with plaintiff. These shunning cases are distinguishable. In our case, defendant Schuckardt never issued a shunning order, nor did any affirmative act equivalent to a shunning order that plaintiffs’ wives should shun their husbands, the plaintiffs. Mohn v. Tingley (1923), 191 Cal. 470, 217 P. 733, cited by plaintiffs, is for other reasons distinguishable and not applicable.

The snake handling cases, and the power of the state to prohibit snake handling during religious worship services, Hill v. State (1956), 38 Ala. App. 404, 88 So. 2d 880, cert. den. 88 So. 2d 887; cases of prohibition of illegal drugs when such use is part of religious practices and the First Amendment is raised as a defense, Leary v. United States (C. A. 5, 1967), 383 F. 2d 851 and United States v. Kuch (D. C. D. C. 1968), 288 F. Supp. 439; cases of the absence of First Amendment protection to parents who refuse medical treatment for children for religious reasons, Raleigh Fitkin— Paul Morgan Mem. Hosp. v. Anderson (1964), 42 N. J. 421, 201 A. 2d 537, cert. den. 377 U. S. 985, State v. Perricone (1962), 37 N. J. 463, 181 A. 2d 751, cert. den. (1962), 371 U. S. 890, all are cases factually distinguishpable from the Radechi case and for that reason are inapplicable. The cited cases, upon which plaintiffs heavily rely, like the prohibition of polygamy case, Reynolds, supra, all present situations where a strong or compelling state interest to protect societal peace, safety, order and morals justified prohibition of the act involved, even though such prohibition seemingly restricted the First Amendment free exercise of religion rights of the persons Whose conduct was restricted. The conduct of the defendánts in the Radecki ease does not fall within the categories of conduct restricted in the eases cited.

Therefore, assignments of error 1 through 4, inclusive, are well taken.

The fifth assignment of error claims that the court admitted extraneous and prejudicial evidence. The testimony challenged is a conversation between Catherine *97 Radecki and Bishop Brown. R. C. 2317.02 reads, in pertinent part, as follows:

“The following persons shall not testify in certain respects : * * *
“(B) A clergyman or priest concerning a confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.”

The testimony challenged in this case was not privileged under R. C. 2317.02(B) because it did not refer.to a confession. In re Estate of Soeder (1966), 7 Ohio App. 2d 271. Therefore, the fifth assignment of error is not well taken.

Assignments of error 6 to 9, inclusive, all challenge the propriety, accuracy or completeness of various parts of the general instructions given to the jury at the elose of the case. With reference to the various parts of the jury instructions challenged in these last four assignments of error, the defense failed to object.to the jury instructions given to the jury before the jury retired to consider its verdict. Civ. R. 51 (A), provides, in part:

“* * * A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. * * *’’

The defendants did not comply with Civ. R. 51(A). Yungwirth v. McAvoy (1972), 32 Ohio St. 2d 285.

Therefore, the ’last four assignments of error aré not well taken.

The judgment of the Court of Common Pleas of Lucas County is reversed. Coming now to enter the judgment which the lower court should have rendered, a final judgment is hereby rendered in favor of the defendants and against the plaintiffs.

Judgment reversed.

Pottee and Stephenson, JJ., concur.

Stephenson, J., of the Fourth Appellate District, sitting by designation in the Sixth Appellate District.

Notes

*

Some jurisdictions allow a cause of action against a third party who maliciously alienates the. affections of a 'minor child. See Strode v. Gleason (1973), 9 Wash. App. 13, 510 P. 2d 250, but see McGrady v. Rosenbaum (1970), 62 Misc. 2d 182, 308 N. Y. S. 2d 181, aff’d 324 N. Y. S. 2d 876; cf. Rosefield v. Rosefield (1963), 221 C. A. 2d 431, 34 Cal. Rptr. 479 (conspiracy to conceal child); Brown v. Brown (1953), 338 Mich. 492, 61 N. W. 2d 656, cert. den. 348 U. S. 816; Clark v. Bayer (1877), 32 Ohio St. 299.