The price of illicit love

One recent March morning, Jack Altamont told a judge how his children’s athletic coach had seduced his wife and wrecked his family’s life. For that, the Buncombe County man claimed he was entitled to cold, hard cash.

Superior Court Judge Zoro Guice agreed, and ordered the coach to pay Altamont half-a-million dollars.

“It could’ve been $5 and I’d have been happy,” said Altamont after the hearing. (Although the local case is a matter of public record on file at the Buncombe County Courthouse, “Jack Altamont” requested that his real name not be used in print, and Xpress agreed.)

The case is one of a handful of what are called “alienation-of-affection” lawsuits filed in Buncombe County over the past couple of years. In these suits, a spouse can sue the “other woman” or “other man” for monetary damages when a love affair breaks up a marriage.

North Carolina is one of about a dozen states that still allow alienation-of-affection lawsuits to be filed. The General Assembly considered banning this type of litigation last April, but in the end, the state House of Representatives decided, in a close vote, to continue allowing them. Just last June, the N.C. Court of Appeals upheld a $1 million judgment against a Burlington woman who had an affair with her boss; he later left his wife and married his mistress.

Not everyone approves of these lawsuits. Opponents consider them to be relics from another time, even likening them to legalized extortion. Supporters, however, say the suits can serve to help protect the institution of marriage.

Steaming up Buncombe County

Four years ago, Altamont thought he had a happy marriage. The Buncombe County man and his wife had been married for 16 years and had never spent a night apart because of bad feelings, he testified in the non-jury trial on March 13 in Buncombe County Superior Court.

“When I got married, I thought we were going to be married for life,” says Altamont, a salesman with salt-and-pepper hair.

Married when he was 22 and she was 19, the couple went on to produce three children, whose sunny faces peer out from a 1992 photo — which he displayed in court — of what appears to be an all-American family on vacation.

“I thought we had a real good marriage,” Altamont told the judge wistfully.

But in the fall of 1996, Altamont’s wife began spending more and more time with her children’s coach. In the spring of 1997, according to documents filed in the case, she and the coach spent a weekend together in Pigeon Forge, Tenn. By May of that year, Altamont’s wife had taken the kids and moved into a motel.

In an effort to save his marriage, Altamont called the coach to tell him to stay away from his wife. Two weeks later, Altamont testified, his wife moved in with the coach, taking the couple’s children with her.

“Criminal conversation”

After the split, Altamont filed papers to divide the couple’s property, then withdrew those papers in hopes of reconciling. He has since re-filed for that property division, and indicated after the hearing that he intends to file for divorce.

A little more than a year ago, Altamont filed the lawsuit against the coach, claiming alienation of affection and “criminal conversation” (legal-speak for sexual intercourse). Although he’d never heard of the alienation-of-affection legal phenomenon before, Altamont was convinced by his lawyer that he had a good case.

In documents filed in the lawsuit, Altamont claimed that the coach had tried to “willfully alienate the affections” of his spouse and “proceeded to intentionally destroy the love and affection” his wife had for him. The lawsuit portrays the other man as a marital intruder who had sex with Altamont’s wife and destroyed the happy family — a typical, even necessary, claim in such cases.

In a handwritten answer to the lawsuit, the coach — who represented himself in earlier court proceedings, and did not show up for the final hearing — denied those allegations.

However, during their depositions, both Altamont’s wife and the coach refused to answer questions about whether they’d had sexual intercourse, citing their Fifth Amendment rights not to incriminate themselves. But they did admit to having shared a bedroom and a bed, according to court documents. Their statements (or lack of them) were enough for a judge to rule in Altamont’s favor on the criminal-conversation issue. While alienation-of-affection and criminal-conversation allegations usually go hand in hand, the claims can also be filed separately.

Altamont’s wife lobbed a couple barbs herself during her deposition, accusing her husband of drinking, using pornography and going fishing. Altamont denied drinking excessively and using pornography — but didn’t dispute the fishing charge.

Counting the costs

In the March hearing, Altamont told the judge that he felt humiliated in the community by the whole affair, especially since he’s forced to see the coach at his children’s ball games. He reported that he has cried and lost sleep over the matter — but revealed that he didn’t seek professional counseling, because he couldn’t afford it.

“It’s not something I grew up thinking is supposed to happen,” Altamont testified.

Pursuing the case has cost Altamont $7,700 in attorney’s fees; he’s also assumed assorted marital debts, including mortgage payments, totaling about $16,000. At the same time, he no longer has the benefit of his wife’s $40,000 salary as an office manager.

His attorney, Diane K. McDonald, told the judge that her client had suffered greatly — and pointed out the difficulty of translating that emotional turmoil into a dollar figure.

“When you say goodbye to a marriage, it’s like a death,” McDonald stated.

Pressed by the judge to come up with a monetary figure nonetheless, McDonald calculated $10,000 — on each count — for her client’s loss of his relationship with his wife, humiliation, mental anguish, loss of the sexual relationship and loss of the children. The total came to $50,000.

“I have no problem doing what they did in [the Burlington case] — a million dollars,” Judge Guice said, prompting hesitant laughter in the courtroom. “But you may want to do something practical. … I think I’d at least go to $500,000 — at least that.”

Altamont says he was surprised at the amount of the award, and certainly doubts he’ll ever see a dime of the half-million dollars.

“I’m not getting a penny of this. It’s not like he’s a doctor — he doesn’t even have a car,” Altamont reveals.

Still, he does take some satisfaction in knowing that his former rival’s credit rating will suffer, due to the judgment that will inevitably be entered against him if he doesn’t pay up.

And Altamont says money was never the motivating factor: He filed the case to prove a point.

“They’ve never admitted they did anything wrong, and it’s my way of saying it’s wrong in the law’s eyes,” Altamont declares. “I want to let someone know that it’s not right what went on, and how it does affect someone’s life. It may take years to build that relationship back up I had with the kids .”

Reflecting on the case later, Guice reported that he’s a staunch believer in traditional families: “I have strong feelings about keeping families together. I think one of the biggest problems in the country today is the breakdown of families.”

However, Guice notes that his $500,000 judgment was not a way of sending a message to other folks who might be contemplating affairs. He says he was simply trying to come up with an appropriate compensatory figure.

“The difficult thing is, as the attorney said, how do you put a monetary value on it? Mental suffering, distress — the guy lost his wife and, in effect, his children, too,” Guice mused. “It’s a lot of money, but in this day and time, is it really? … That might be low.”

Like stealing cattle

Alienation-of-affection lawsuits originated centuries ago in English common law, at a time when women were regarded as chattel, or their husband’s property, according to Asheville family lawyer Howard Gum.

A married woman’s lover could be sued for monetary damages, Gum reveals, because he was interfering with the husband’s so-called “property rights” in his wife.

“Quite frankly, the legal theory was the same as if someone had stolen his cattle,” Gum notes.

The tables weren’t flipped until the turn of the 19th century, when laws were passed in England and the United States to allow married women to own property, Gum notes. But rather than eliminating alienation-of-affection lawsuits, the right to sue instead was extended to married women, who could then sue their husbands’ mistresses.

To win an alienation-of-affection lawsuit, a plaintiff must prove that there was genuine love and affection between the husband and wife; that the lover knew the couple was married; and that the lover disregarded the marriage, seduced the spouse and destroyed that marital love and affection.

And while it isn’t essential to show that sexual intercourse occurred, explains Gum, proving that it did is always helpful in winning alienation-of-affection cases.

The lawsuits aren’t always an easy sell, either. Jurors often have a hard time believing that the plaintiff was completely innocent, and “here comes the evil seducer,” as Gum puts it, to single-handedly break up the marriage. As a result, many cases are settled before they reach a jury.

Few of the lawsuits result in awards as high as $500,000. Before the Altamont case, Gum says he can’t recall a local verdict higher than $10,000.

“Most states have abolished it,” Gum explains.

In North Carolina, the lawsuits were challenged 16 years ago when the state Court of Appeals ruled that such claims were “uncultivated and obsolete,” according to The News & Observer of Raleigh. But the state Supreme Court reversed that decision, ruling that the Court of Appeals exceeded its authority.

Legalized extortion or protecting marriage?

Just last year, the General Assembly tried to take on the lawsuits.

“It takes two to tango,” Rep. Mickey Michaux of Durham told The News & Observer. “A lot of us don’t believe you can steal a person’s affections.”

He and Rep. Toby Fitch of Wilson introduced a bill that would have put an end to the lawsuits. But the House rejected the bill, and a move to reconsider it also failed.

The North Carolina Bar Association, propelled by its family-law section, has lobbied the state legislature to abolish the lawsuits. Gum thinks he knows why those efforts were unsuccessful.

“In basically the South, and North Carolina as well, you have a very strong conservative, religious component to the community, and they believe these suits may serve some purpose,” Gum allows.

In addition, individual legislators might also believe that future opponents could accuse them of not supporting family values, he continues.

Gum points out that he once handled alienation-of-affection cases himself, but stopped several years ago.

“I just think these are cases that should not be brought or prosecuted, and I feel so strongly that I don’t think I’d be an effective advocate,” he notes, adding with a chuckle, “Or, in the words of Richard Nixon, ‘We could do that, but it would be wrong.'”

Accusations of infidelity and threats of filing alienation-of-affection lawsuits occur fairly often in family-law cases, according to Gum. In his opinion, those suits are threatened and filed to gain the upper hand when people are negotiating for child custody, alimony or property division. They also serve to expose the illicit lover to public humiliation.

“My personal opinion is that these lawsuits ought to be abolished. It’s just a form of legalized extortion now,” Gum declares.

His theory is that — if the lawsuits do serve some kind of legitimate purpose, such as deterring people from cheating on their spouses — any potential benefits are outweighed by the reality that the suits are often used to coerce unfair divorce settlements.

During last year’s House debate, those in favor of the lawsuits argued that the court cases hold people who break up marriages responsible for their actions, according to The News & Observer.

“It’s a good law; [jurors], in their verdicts, have said they want to keep it,” said Rep. Russell Capps of Raleigh during the debate, adding that it “brings justice back into the divorce settlement.”

McDonald, the lawyer who represented Altamont, also believes the lawsuits serve a useful function: “I think the overriding purpose is that it provides some kind of moral structure for society,” McDonald says. “You see so much upheaval in our society, and disregard of all that the marriage vows mean, and this is one way of protecting it.”

Superior Court Judge Howard Manning delivered some particularly scathing comments in an alienation-of-affection lawsuit he decided last year in Durham, as reported in N.C. Lawyers Weekly. In that case, the chairman of the psychiatry department at Johns Hopkins University was ordered to pay $42,800 in damages to a Duke University professor — the punishment for having sex with the Duke professor’s wife.

Although the judge didn’t find that alienation of affection had occurred in its strict legal definition, he did find that adultery (or “criminal conversation”) had taken place.

“In this case, acts of adultery were committed by highly intelligent, multi-degreed academics working within the Duke University community,” Manning wrote in his final decision. “These acts of adultery occurred in an academic atmosphere, with trappings of fine wine, romantic lunches, classical records and CDs, cerebral conversations, and within an environment self-perceived as cultured.

“Yet despite the trappings of intellect, self-perceived culture, fine wine and academic atmosphere, the adulterous conduct … can be described as no more than common as pig tracks.”

No end in sight

The number of alienation-of-affection lawsuits filed annually in Buncombe County is small — probably no more than a half-dozen a year, according to Trial Court Administrator Marc L. Shimberg. Aat least four other alienation-of-affection cases are now making their way through the county court system.

But what these cases lack in numbers, they make up for in intensity. Each of the lawsuits is rife with its own singular quirks, and — despite the sometimes-sterile legal language used in the proceedings — betrays the anger and indignation that allegedly adulterous situations tend to arouse.

In a case filed last December, a Buncombe County man is suing an Asheville physician for alienating the affections of his former wife, also a physician. In addition to denying the allegations, the doctor takes a stand against the lawsuits, calling them “a barbaric and archaic cause of action” which often leads to “the creation and furtherance of domestic turmoil.” He also claims that the suits are against the public interest of North Carolina and should be abolished by the courts.

In another case filed last August, a Buncombe County man claims another man “willfully, wickedly and maliciously” sought to prejudice the mind of his wife. The suit also lists the sites where his wife and the other man allegedly had sex, including two offices of a local bank.