The Long Arm's Inappropriate Embrace: Heart Balm Torts Test State Control of Family Law

In 1932, the jilted Knoxville, Tennessee, socialite Evelyn Hazen sued her former lover and fiance for the torts of seduction and breach of promise to marry. Fifty-six years later Memphis businessman Jerome Hanover sued the gynecologist with whom his wife of twenty-eight years was having an affair. The suit involved the torts of alienation of affections and criminal conversation. In 2011, the wife of professional golfer John Daly sued Anna Cladakis for alienating Daly’s marital affections by engaging in alleged sexual encounters in Daly’s tour bus while visiting the gambling town of Tunica, Mississippi. Such are the salacious fact patterns on which rest proof of a successful heart balm claim. The common law proffered a palliative remedy in tort for one’s love loss from another’s embrace of one’s lover. With time, however, the exclusive possession of one’s lover became an incorrect premise on which to base the so called “heart balm” torts. Once recognized in every state, the heart balm torts have lost their power to provide damages for the broken hearted. The gradual acceptance of gender equality and sexual freedom fostered a gradual rejection of possessory descriptions of the relationship between lovers; consequently, the heart balm torts were seen by most states as the very antithesis of the modern public policy underlying the state’s domestic relations laws. Assailed for equating the affections of a spouse to a quantifiable property interest, the heart balm torts have become judicially disfavored and statutorily barred in most jurisdictions. Seven states, however, cling to the antiquated tort of alienation of affections. In 1989 and 1990 the torts of alienation of affections and criminal conversation, respectively, were abolished by the legislature of the State of Tennessee. Both torts were found to be contrary to the public policy of the state of Tennessee. How then was Sherrie Miller Daly able to seek damages from Daly’s girlfriend for the breakdown of her Tennessee marriage? The answer lies in the questionable extension by the Mississippi Court of Appeals of the Mississippi tort of alienation of affections by a nonresident plaintiff against a nonresident defendant for harm to a non-Mississippi marriage. States are — and should be — the source of domestic relations laws consistent with that state’s public policy as expressed by the legislators and state court judges. But, the reach of one state’s domestic relations laws must end at the state line. In a recent decision by the Mississippi Court of Appeals, Miller v. Provident Advertising & Marketing, Inc. 155 So. 3d 181 (Miss. Ct App. 2014) (en banc), the court upheld Mississippi’s personal jurisdiction over a non-resident defendant in a suit by a non-resident plaintiff for damage to a non-resident marriage. The effect: the stated public policies of Tennessee and Florida residents within the embrace of its heart balm torts. A proper analysis of due process supports less intrusion by one state into the domestic relations laws of a sister state. This article articulates why Mississippi’s expansive view of its jurisdiction violates due process.