Will the AshleyMadison.com data dump lead to divorces in Mississippi?

AshleyMadison.com is a website designed for married people to find a person with which to have an affair. Their slogan is “Life is short.  Have an affair.”  The bottom of their site contains what appear to be little awards claiming “Trusted Security Award” and “100% Discrete Service.”  Not so.

By now you have probably heard about the AshleyMadison.com (AM) data dump.  This story began back on July 15 when online security expert Brian Krebs reported that a group of hackers named the Impact Team had compromised the databases and proprietary electronic information of AM, its parent company Avid Life media and related sites Cougar Life and Established Men.

A little over a month later on August 18 the data dump started showing up around the web.  Various sites have popped up where you can search the database by email address including this one.  According to Joseph Cox at Motherboard, the Impact Group as now dumped another set of data that is roughly twice the size of the first dump.

The two AM data dumps come on the heals of yet another data dump at adult hookup site AdultFriendFinder.com a few months back.  Cheaters beware.

So how long will it be before the first client walks into a lawyer’s office in Mississippi asking for a divorce based on the AshleyMadison or AdultFriendFinder data dumps?  If it hasn’t already happened, it won’t be long.

3 years to file for alienation of affection in MS, but when does the 3 years start?

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.

Webcast link.

Brief of Shane Anderson

Response of James B. Ladner

Reply of Shane Anderson

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.

Making a federal case out of it?

Very few cases make it to the United States Supreme Court.  According to stats from the Court, they receive “approximately 10,000 petitions for a writ of certiorari each year.  The Court grants and hears oral argument in about 75-80 cases.”  Your ordinary car wreck case where both parties are residents of the same state generally doesn’t have any federal questions.  Appeals end at the highest appeals court for the state where the case was tried.

The alienation of affection case involving pro golfer John Daly that I previously discussed here is making a stop by the US Supreme Court due to the defendant filing a petition for writ of certiorari.  The basis of the petition boils down to claiming the Mississippi courts have no jurisdiction over the defendant where:

• The plaintiff and defendant are non-residents of Mississippi
• The defendants contacts with Mississippi are insufficient to confer jurisdiction
• Mississippi has “virtually no interest in entertaining this dispute between the Plaintiff and another nonresident to which no Mississippi substantive law is likely to apply”
• The states of residency for the parties have abolished the tort of alienation of affection therefor allowing Mississippi courts to exercise jurisdiction here would corrupt the doctrine of state sovereignty.

Interesting arguments that raise federal issues.

The original opinion from the Mississippi Court of Appeals states:

While the state’s interest is not as strong in this case as it was in Knight since the marriage at issue is not a Mississippi marriage, we still conclude that Mississippi has “an especial interest” in this case. The Legislature, in modifying our state’s long-arm statute in 1980, expressed the public policy of the state to provide a forum for nonresidents to pursue compensation for torts committed in whole or in part in this state. See Camp, 462 So. 2d at 727; 1980 Miss. Law, Ch. 437. ¶33. The trial court recognized Miller’s strong interest in obtaining effective relief for the alienation-of-affection tort she alleges occurred within our borders. Miller lacks a viable alternative forum to adjudicate that claim, since both Tennessee and Florida have abolished alienation-of-affection as a cause of action. This fact increases Mississippi’s interest in adjudicating this claim.

While I support Mississippi’s reluctance to abolish alienation of affection cases for the benefit of Mississippi residents, I fail to see what business Mississippi has in providing a forum for out of state litigants in these matters or why Mississippi’s interests are increased in the matter due to the litigants being residents of states that have abolished alienation of affection.

My take – the Court of Appeals got it wrong, but statistically I do not expect the US Supreme Court to fix it.  Petition for writ of certiorari will be denied.  The case will head toward trial in Mississippi and may very well end up before the Mississippi appellate courts once again.  For now, alienation of affection cases are viable in Mississippi where:

• the defendant is a Mississippi resident,
• a non-resident defendant engages in acts (romantic rendezvous) in furtherance of the alienation of affection while physically present in Mississippi, or
• a non-resident defendant directs contact (phone calls, gifts, emails, text messages, etc.) to a married person in Mississippi in furtherance of the alienation of affection.

Return to sender, reverse and render

Arguably the most famous person ever born in Tupelo, Mississippi had a little hit back in 1962 titled “Return to Sender”

I gave a letter to the postman,
He put it his sack.
Bright in early next morning,
He brought my letter back.

She wrote upon it:
Return to sender, address unknown.
No such number, no such zone.

Hopefully, Elvis wasn’t singing about sending love letters to a married person as was central to Nordness v. Faucheaux case handed down today by the Mississippi Supreme Court.

Phillip and Paige Faucheux were a military couple who moved frequently, but lived in Mississippi during the time relevant to the case.  While Phillip was a resident of Mississippi he began a relationship with Francesca Nordness, a resident of Louisiana.  According to the opinion:

Phillip and Francesca continued the affair while Phillip trained in south Louisiana. Phillip often would drive Francesca around in his Mazda pick-up truck with Louisiana license plates. Francesca never visited Phillip in Mississippi, and Phillip never told Francesca that he lived in Mississippi. Instead, he misled her into believing he actually lived in Memphis. His cell phone had a “901” area code—the area code for the Memphis area—and he sent her packages with a Memphis return address.

and

Francesca and Phillip continued to rendezvous at locations across the country, including Louisiana, Florida, North Carolina, Nevada, and Colorado—but never Mississippi. And although the two exchanged e-mails, phone calls, and text messages, Francesca never knowingly communicated with Phillip while he was in Mississippi. Phillip also sent Francesca several FedEx packages during this time, but according to Phillip’s uncontroverted testimony, he always used a Memphis return address.

Paige finally decided enough was enough and divorced Phillip.  Shortly thereafter, Paige brought suit in Mississippi against Francesca for alienation of affection and a number of related torts.  Francesca filed a motion to dismiss due to lack of personal jurisdiction claiming in essence “I wasn’t in Mississippi and didn’t do anything in Mississippi.”  The trial court denied the motion and the parties ended up before the Mississippi Supreme Court.

Several recent alienation of affection cases before the Court have centered on claims by defendants of insufficient contact with Mississippi to support personal jurisdiction.  To the best of my recollection, all of those challenges have failed until today.

In Miller v. Provident Adver. & Mktg., 2014 Miss. App. LEXIS 339, 24-25 (Miss. Ct. App. June 17, 2014) involving pro golfer John Daly, the Court of Appeals found:

[T]he alleged sexual activity between Cladakis and Daly within the state of Mississippi, which contributed to the breakup of Daly’s marriage with Miller, constituted a tort committed, at least in part, within this state. For whatever reason Cladakis and Daly chose Mississippi for the site of their liaisons, this Court finds that decision constituted a purposeful availment to activities within the state for purposes of personal jurisdiction.

In Knight v. Woodfield, 50 So. 3d 995 (Miss. 2011) the court found sufficient contacts where “Knight admitted he was aware that Dakka and Woodfield were married and that Dakka lived with Woodfield in Mississippi.”

In contrast to Miller and Knight, the Court in this case could find no purposeful contact by Francesca with the State of Mississippi.

The record includes no evidence that Francesca created sufficient purposeful minimum contacts with Mississippi by having an affair with a man she did not know lived in Mississippi. Her calls and text messages to Phillip’s Memphis telephone number do not establish minimum contacts in Mississippi. A nonresident defendant must knowingly and purposefully establish minimum contacts with the forum state—in this case, Mississippi—such that the nonresident reasonably can expect to be haled into court in that state.

Nordess, at paragraph 45.  The end result from the Court was to reverse and render.

*Short practice tip – If you plan on filing an alienation of affection case in Mississippi against a non-resident of Mississippi, find some knowing contact by the paramour with the State of Mississippi.  That contact could be:

• directing emails, letters, texts messages or gifts to the married person in the State of Mississippi
• knowledge by the paramour that the married person is a Mississippi resident
• presence of the non-resident paramour in the State of Mississippi to engage in a sexual act with the married person or further the illicit affair

If you can’t prove these minimum contacts your lawsuit, like the King’s letter, will be returned to sender.

New Year’s Resolutions

The New York Post relays some disturbing poll results released by AshleyMadison.  Apparently, the three biggest new year’s resolutions were:

1. Get fit;
2. Travel; and
3. Cheat on your partner.

Ashley Madison is a site dedicated to facilitating cheating.  Their slogan?  “Life is short.  Have an affair.”  97.324% of statistics are made up on the spot to support some point (including the 97.324% statistic).  My point though is that while Ashley Madison’s poll is hardly scientific, plenty of people will in fact cheat this year regardless of whether or not it was their new year’s resolution.

For those of you considering a fling, you might also want to consider limiting your sexting.  TDP reports those sexy pics you send your partner can end up on what are being termed “revenge porn” sites , “where spurned lovers post compromising photos of their exes.”  When I first started practicing law, divorce cases did not revolve around “social media.”  Facebook didn’t come along until 2004.  Now, there are very few divorces and no alienation of affection cases that don’t involve social medial and digital data to some degree.

Speaking of alienation of affection cases, Philip Thomas has a brief report of a recent $150,000.00 verdict in Rankin County, Mississippi.  I would concur with Philip that Rankin County has become a tough venue for these cases.  Given the trial record for the past couple of years, they appear to be tough everywhere in Mississippi and the verdicts can be substantial.

So much for the gloom and doom.  Now for my new year’s resolution———I will work to be a better husband, father and all around person.  Best of success to everyone (except the cheaters) in 2014!

Ask Randy v2

My second installment of Ask Randy.  Version 1 can be found here and as with v1, this is a combination of Dear Abby, ask a friend and general legal advice.  If you have a specific legal issue contact an attorney licensed in your state for your specific issue.  As always, keep this legal notice in mind.

These are actual search terms that someone sat down and typed into google.com or some other web search engine to arrive at my blog.

• how to ask your cheating wife for a divorce

“Honey, you have been a warm, caring and loving wife, but I am ready to move on.  Would you please sign these papers?”  Seriously, if she is cheating and you want a divorce, go see a lawyer and ask him to get the ball rolling.

• before divorce final can kids be around his new girlfriend

They CAN, but it is a really, really bad idea.

•  is it ok to take help from your mean ex husband

Sure, you can accept help from anyone.  Help is a gift.  Now if the ex husband is expecting something in return for the gift, you should probably reassess your options.

•  can you destroy your spouses personal property during a divorce

Sure.  However, the Court may require you to pay for the property you damage.  If you were under an order to produce the property, the Court may find that your actions were taken in contempt of court.  Just don’t do it.

•  is it aceptable to divorce if your spouce got someone pregnant

It is not only acceptable, it is generally encouraged.

•  can you give your spouse all of your retirement in a divorce

Sure.  There is noting prohibiting you from giving anyone anything.  In fact, you could even give your retirement to me so I could further my hunting and fishing activities if that is what you want to do.  Keep your retirement.  If you live long enough, you will need it.

•  can you make payments to your lawyer for a divorce case

Yes.  Lawyers, like most people that are owed money prefer timely payments.

• how to get everything in divorce if gambling addiction is found out

Invest in the casino?  If there is a serious gambling addiction, there isn’t going to be much to get.  Go see a lawyer and if the money wasted at the casino is significant, consider hiring a forensic accountant or CPA to track the wasted family assets.

• how to prove ur girlfriend that u r divorced

Show her your divorce documents.

• what happens when you give a divorce proposal to the attorney

Typically, he/she will draft a settlement proposal and send it to the attorney on the other side.   The attorney on the other side may or may not accurately relay the offer to the client.  At some point, the parties either reach agreement, go to trial or the divorce case is dismissed.

•  how to handle a cheating wife who hates you and wants a divorce

Give her the divorce.  No need to be miserable.

•  soon to be ex wife keeps threatening me with her lawyer

Take away the threat.  Consult with an attorney, make a reasonable offer to end the matter and be prepared to go to trial if she doesn’t accept.  Simple as that.

•  using fake cashiers checks to claim payment on child support

Excellent way to end up in jail.

•  when your ex doesn’t want to be friends and you have kids

You and your ex do not need to be friends.  You need to be parents.  There is no requirement that formerly married people remain friends and in many cases it simply isn’t possible.  Discuss your children, parenting, schooling and leave it at that.  It is time to move on.

•  do you have to talk to your ex husbands new wife cuz you have kids

It would certainly make life easier, but keep the conversations strictly limited to the kids.  Pick-up and drop off times, visitation schedules, medical care for the child, etc.  You don’t have to be friends (see above).

• can wife change facebook status to single before divorce is final

Yes.  In fact, she could change her facebook status prior to the divorce being final to reflect that she is in a complicated relationship with a turtle if she wanted to.  If if makes your soon to be ex spouse happy, let her go for it.  So long as she is happy, she isn’t focused on making you unhappy.

• what can i do if my divorce lawyer does not have my best interest in mind

Either trust your lawyer or find a new one you can trust.

• if you remarry your ex will you have to go through all the custody if you divorce again

Typically, yes.

• in a divorce which is worse adultery cases or irrational differences
  

I would guess that it depends on how irrational the differences are.  In Mississippi, being able to prove a basis for your divorce such as adultery simply entitles you to a divorce.  It doesn’t entitle you to all the assets or the kids.  The fault based grounds for divorce are not ranked.  Adulterers and drug addicts are both entitled to an equitable distribution of the marital estate during a divorce.

• defense alienation of affection mississippi

The absolute best defense is to be able to prove you didn’t do it.  Alienation of affection is still alive and well in Mississippi and can cost you more money than you want to pay out.  The elements of proof for an alienation of affection case 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, 1025-26 (¶36) (Miss. 2007).  Therefore, you had best be able to prevail on one of those three prongs.  As a practical matter, alienation of affection cases that go to trial often result in a jury verdict against the defendant.  As noted by Philip Thomas, plaintiffs in these cases had a 6-0 trial record in Mississippi over the previous two years.

Alienation of Affection Still Alive and Well in #Mississippi

Alienation of affection lawsuits are the subject of considerable debate in Mississippi.  Philip Thomas has blogged a number of times about the subject and advocates abolition of the tort.

SB2376 in the Mississippi Senate was proposed to do just that, but died in Committee this week.

Personally, I am in favor of allowing injured persons the right to hold those responsible for wrecking their marriage accountable.

The purpose of the tort of alienation of affections is the protection of the love, society, companionship, and comfort that form the foundation of marriage . . . . Permitting claims for alienation of affections protects the marriage relationship and provides a remedy to those who have suffered loss of consortium as a result of the conduct of others.

Knight v. Woodfield, 50 So. 3d 995 (Miss. 2011).

As noted by Philip Thomas, plaintiffs in these cases had a 6-0 trial record last year.  I was actually shocked to see that six cases went to trial because depending on the facts and the financial wealth of the defendant, the verdicts in these cases can be substantial.