3 years to file for alienation of affection in MS, but when does the 3 years start?
August 18, 2015 10 Comments
As the above letter from a reditt user shows, there are a number of ways to seek revenge with a cheating spouse. If you are in Mississippi, you can add the filing of an alienation of affection lawsuit against the paramour to the list.
Mississippi is one of only a handful of states that allows a legal claim for alienation of affection.To prevail, a plaintiff must show the legal elements for the claim which are wrongful conduct of the defendant, loss of affection or consortium and a causal connection between the conduct and the loss. Fitch v. Valentine, 959 So.2d 1012, 1015 (Miss. 2007). In addition, the plaintiff must file the lawsuit within the statute of limitations. “Thought alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations. Therefore, we apply the general three-year statute of limitation..” Fulkerson v. Odom, 53 So.3d 849, 851 (Miss. Ct. App. 2011).
Under Mississippi law, a claim of alienation of affection accrues when the alienation of affection or loss of affection is finally accomplished. The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated. The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.
Carter v. Reddix, et al, 115 So.3d 851, 857 (Miss. Ct. App. 2012)(internal citations omitted). The discovery rule does not toll the three year statute of limitations. Fulkerson v. Odom, 53 So.3d 849 (Miss. Ct. App. 2011).
With those general principles in mind, the Mississippi Court of Appeals is set to her oral argument in the case of Shane Anderson v. James B. Ladner in cause no. 2014-CA-00730 on Wednesday at 10:30 a.m.
Anderson brought claims against Ladner for alienation of affection (AA), reckless infliction of emotional distress and punitive damages. The statute of limitations for an intentional infliction of emotional distress claim is one year and a claim for punitive damages is not a stand alone claim, so lets focus on the AA claim.
At the trial court level, Ladner argued that the filing of the joint filed divorce triggered the running of the statute of limitations on the AA claim. The trial court agreed and dismissed the case.
On appeal, Anderson primarily argues for a bright line rule that accrual of an alienation of affection case begins at the finalization of the divorce and that such a rule “would be more consistent with the irreconcilable differences divorce statute because the statute itself provides for an opportunity for reconciliation.” Anderson’s Brief at p. 10.
Ladner counters that Anderson didn’t request a bright line rule before the trial court and that Anderson’s claim accrued at the time the complaint for divorce was filed. Ladner also argues that Anderson is prohibited from arguing a different accrual date due to res judicata and collateral estoppel.
So when exactly does the three years start? The positions advocated by both parties have positives and negative attributes. A bright line rule provides clarity. However, consider the situation where a married couple files for divorce, but subsequently reconcile in spite of an earlier alienation of affection by a third party. Anderson’s position would be that an AA claim never accrued because there was no divorce. Ladner’s position is in and of itself a form of bright line rule. Any time a divorce was filed (regardless of whether the parties completed the divorce), the statute of limitations would begin to run on an AA claim.
Tune in tomorrow at 10:30 for the argument.
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Can alienation of affection extend to grandchildren?
Not that I am aware of. “The purpose of a cause of action for alienation of affection is the ‘protection of the love, society, companionship, and comfort that form the foundation of a marriage…” Fitch v. Valentine, 959 So. 2d 1012, 1019, (Miss. 2007). When dealing with grandchildren, you have the competing interest of the grandparents’ relationship with the grandchildren vs. the parents’ desire to raise the child as they see fit. There are no such competing interests when a third party intrudes on a marriage.
So, if there’s no divorce, there’s no ground for an alienation of affection case?
To my knowledge, the issue hasn’t been squarely addressed. The Mississippi Supreme Court has stated that the elements of the tort of alienation of affection are: “(1) wrongful conduct of the defendant; (2) loss of affection or consortium;
and (3) causal connection between such conduct and loss.” Fitch v. Valentine, 959 So. 2d
1012, 1025 (¶36) (Miss. 2007).
It is arguable that there could be a loss of affection or consortium prior to entry of a judgment of divorce or even without entry of a judgment of divorce. As a practical matter, it would take a very unique set of facts for me to pursue an alienation of affection case if the parties to the marriage reconciled.
Personally, I feel that an Alienation of Affection case should be permitted even in the absence of a divorce. I say this because the defendant who actually committed a wrongful act has caused the wife to lose her husband’s affection by committing adultery. Ultimately, the defendant is breaking up a happy marriage. And this is unacceptable by God! Consequently, the defendant should be held liable for her actions.
Do I need to live in Mississippi to file this type of suit because it happened in Georgia mainly
Speak with an attorney in your area and explain all the facts of who, what and where the conduct occurred. Generally either the parties or the conduct of the parties must have some nexus to the state where you are bringing suit. For example, if the marriage was between residents of Florida, the third party interfering with the marriage lived in Georgia and all conduct between the third party and the married person occurred in Florida, you would probably not be able to bring the case in Mississippi. Every case is different and turns on the specific facts of the case coupled with the law of the states involved. Without knowing all the facts and parties involved, there is no way for me to tell you where you would need to file.
Can alienation of affection be filed against in-laws? My wife left me 4 months ago due to the influence of her parents. She has not yet filed for divorce but has moved in with her parents and is refusing to speak to me. Her parents are extremely homophobic and have been against our marriage from the beginning. I have nothing to cause this seperation yet she is refusing to come home and will not let me see my doughter.
I am not aware of any reported alienation of affection cases in Mississippi with a fact pattern similar to what you describe.
The recent Lyon v. McGee, 249 So. 3d 436, 441-442, 2018 Miss. App. LEXIS 33, *11-12, 2018 WL 507676 outlines the current status of alienation of affection law in Mississippi.
The elements of alienation of affection are: “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.” Fitch v. Valentine, 959 So. 2d 1012, 1025 (¶36) (Miss. 2007). “A claim for alienation of affection does not require that the plaintiff prove an adulterous relationship . . . .” Bland v. Hill, 735 So. 2d 414, 417 (¶13) (Miss. 1999) (citation omitted). “The ‘wrongful’ conduct necessary to maintain an action for alienation of affections is the direct and intentional interference with the marriage relationship by the defendant.” Children’s Med. Group P.A. v. Phillips, 940 So. 2d 931, 934 (¶9) (Miss. 2006). The plaintiff must establish that his spouse “was induced to abandon the [husband] by some active interference on the part of the defendant.” Id. (quoting Stanton v. Cox, 162 Miss. 438, 450, 139 So. 458, 460 (1932)).
I would suggest you consult with an attorney in your area that handles alienation of affection cases to discuss your specific issues.