Destefano v. Grabrian

MULLARKEY, Justice,

specially concurring:

I agree with Justice Erickson’s opinion that both Destefanos should be permitted to try their claims for breach of fiduciary duty and that Edna should be permitted to try her claim for outrageous conduct. I write separately to express my views on the construction of the heart balm statute, now codified at sections 13-20-201 to -208, 6A C.R.S. (1987).

We construed the heart balm statute in two relatively recent cases: In re Marriage of Heinzman, 198 Colo. 36 , 596 P.2d 61 (1979) and Goldberg v. Musim, 162 Colo. 461 , 427 P.2d 698 (1967). In both cases, we emphasized the purposes of the heart balm statute and avoided the temptation to rely on a technical analysis of the elements of the abolished causes of action. The principal purpose of the heart balm statute, as expressed in section 13-20-201, is to eliminate meritless lawsuits brought by “unscrupulous persons for their unjust enrichment” after a failed romance or marriage. See also Note, Heartbalm Statutes and Deceit Actions, 83 Mich.L.Rev. 1770, 1776 n. 27 (1985). An equally important reason supporting the heart balm statute is “the increasing recognition that each spouse is an autonomous human being, that neither is the property of the’ other, and that a home so easily broken is not worth maintaining.” W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts § 124, at 930 (5th ed. 1984).

In Heinzman, we held that the heart balm statute does not bar a suit for return of an engagement gift after the engagement is broken. In the context of a broken engagement, we emphasized that the stat *291 ute only barred “actions for damages suffered from the breach of promise to marry and other direct consequences of the breach, such as humiliation.” 198 Colo, at 40, 596 P.2d at 64 .

In Goldberg , we held that the heart balm statute barred a lawsuit brought by a woman who claimed that her marriage had been destroyed by a woman whom she named as the defendant. We noted that the plaintiffs claim in Goldberg was not a claim for alienation of affections within the common law definition as used in Colorado because “a wife had no right of action for alienation of the affections of her husband.” 162 Colo, at 471, 427 P.2d at 703 . Nevertheless, we held that the allegations of the complaint fell “squarely within the abolished action [alienation of affections], for all that is alleged arises out of a relationship, i.e., an inducement to separate and resulting loss of society, loss of services, pain, suffering and humiliation.” Id. at 467 , 427 P.2d at 701 .

That is the approach we should apply to the case now before us. Attempting to establish the elements of the abolished causes of action can only lead to absurd results which have no application to contemporary society. Justice Erickson’s approach would require us to take a snapshot in time as of 1937 when the heart balm statute was enacted and define the elements of the torts abolished by that act. This is an impossible analytical task because, as Prosser states, “there is no good reason” for distinguishing among the four torts and the torts usually are lumped together “under the general name of ‘alienation of affections,’ without any attempt to distinguish the possible elements of the tort.” W. Prosser, Handbook of the Law of Torts § 124, at 876-77 (4th ed. 1971).

Justice Erickson at footnote 3, at 279, acknowledges the difficulty caused by attempting to analyze the elements of each tort, but states that we are compelled to do so because the heart balm statute lists four separate torts. In my opinion, the legislature listed the four torts (criminal, conversation, alienation of affections, seduction, and breach of promise to marry) to make plain the sweeping nature of the law it passed because those four constituted all of the recognized heart balm actions. See Note, Cannon v. Miller: The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina, 63 N.C. L.Rev. 1317, 1318 (1985). I would be more persuaded of the appropriateness of an element-by-element analysis if the Colorado legislature, like some of its contemporaries in other states, had selected only certain heart balm actions to abolish. See Note, Heartbalm Statutes and Deceit Actions, 83 Mich.L.Rev. at 1770-71. Since that is not the case, I would not adopt the form of analysis used by Justice Erickson.

Here, Justice Erickson concludes that Edna Destefano’s claim is not barred by the heart balm statute because she was married and a married woman could not bring a claim for seduction. At 282-283. To support that conclusion, he must reach back to a 1918 case, Weinlich v. Coffee, 67 Colo. 382 , 176 P. 210 (1918). The language of that case, embodying outmoded property and master/servant concepts in the context of marriage, has no relevance today. Weinlich should be allowed to rest in obscurity, not resurrected and given new currency in a modern opinion. The logical corollary of Justice Erickson’s approach is that if Edna Destefano had consulted a priest for premarital counseling and the same course of events had occurred, her claim against the priest would be barred because she was an unmarried woman who could have brought a seduction claim at common law. Such a distinction could not be upheld under the married women’s property act, section 14-2-202, 6B C.R.S. (1987), the equal protection guarantees of the state and federal constitutions, and the equal rights amendment of our state constitution. 1

*292 If we look to the purposes of the heart balm statute, it is clear that the statute was not intended to bar claims based on breach of fiduciary duty and outrageous conduct against a priest who counseled both parties to the marriage. When such a special relationship is present, I would hold that the heart balm statute does not apply. See Prosser and Keeton on the Law of Torts § 124, at 930 (suggesting that heart balm statute should not bar relief “when the interference with family relations is accomplished by means of some independent tort”). See also O’Neil v. Schuckardt, 112 Idaho 472 , 733 P.2d 693 (1986) (court judicially abolished cause of action for alienation of affections but held that plaintiff could bring invasion of privacy causes of action against church officials for allegedly inducing plaintiff’s wife and children to join religious cult).

I am authorized to state that Chief Justice QUINN, Justice LOHR and Justice KIRSHBAUM join in this special concurrence.

. On a similar basis, states which have retained the claims abolished by our heart balm law permit both men and women to bring the claims. Identical rules apply to both. W. Pros-ser, Handbook of the Law of Torts § 124 at 882. See abo 1 H. Clark, The Law of Domestic Relations in the United States § 12.2, at 653 (alien *292 ation of affections), § 12.3, at 662 (criminal conversation) (2d ed. 1987).