DOE v. DOE, 378 Mass. 202 (1979)

390 N.E.2d 730

Supreme Judicial Court of Massachusetts. Essex.March 8, 1979.
June 4, 1979.

Present: HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, ABRAMS, JJ.

Alienation of Affections. Criminal Conversation, Practice, Civil, Report.

A report of questions of law raised by the defendant’s motion to dismiss an action for alienation of affections and criminal conversation was not properly before this court where there had been no agreement as to all the material facts, no verdict or finding of facts, nor any interlocutory finding or order. [203]

CIVIL ACTION commenced in the Superior Court on June 6, 1975.

Questions of law were reported to the Appeals Court b Garbose, J., a District Court judge sitting under statutory authority. The Supreme Judicial Court granted a request for direct review.

Paul M. Kane for the defendant.

Paul P. Perocchi for the plaintiff.

WILKINS, J.

The plaintiff filed a complaint in the Superior Court alleging alienation of affections and criminal conversation. The defendant moved to dismiss the action “on the grounds that the common law actions for alienation of affection and adultery are both unconstitutional and contrary to public policy.” Without taking any action on the defendant’s motion to dismiss, a judge reported two questions of law to the Appeals Court.[2] We

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granted the defendant’s application for direct appellate review. Because the report is not properly here, we dismiss it.

None of the circumstances in which a judge of the Superior Court may report a case exists here. See G.L.c. 231, § 111; Mass.R.Civ.P. 64, 365 Mass. 831 (1974). There has been no agreement as to all the material facts, nor has there been a verdict or a finding of facts by the judge. The judge made no interlocutory finding or order which he could report if he was of the opinion that the matter ought to be determined by an appellate court. He reported questions of law raised by the defendant’s motion to dismiss without entering any order. In such a situation, the report must be dismissed. Maldonado, petitioner, 364 Mass. 359, 366 (1973). Bond Liquor Store, Inc.
v. Alcoholic Beverages Control Comm’n, 332 Mass. 756 (1955).

This is not a situation in which we should exercise our discretion to express our views on the questions raised. Contras Maldonado, petitioner, supra; Moore v. Election Comm’rs of Cambridge, 309 Mass. 303, 306 (1941). The defendant challenges the continuing validity of the torts of alienation of affections and criminal conversation. Where constitutional questions and matters of asserted public policy are raised, it is preferable to pass on the issues in light of a fully developed trial record rather than, as here, in the abstract.

Courts in three States have recently refused to abolish the tort of alienation of affections (Bearbower v. Merry, 266 N.W.2d 128, 130-134 [Iowa 1978]; Gorder v. Sims,

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306 Minn. 275, 281-283 [1975];[3] Wyman v. Wallace, 91 Wn.2d 317, 318 [1979], reversing 15 Wn. App. 395 [1976]), and courts in two States have recently refused to abolish the tort of criminal conversation (Kremer v. Black, 201 Neb. 467 [1978] Felsenthal v. McMillan, 493 S.W.2d 729 [Tex. 1973]).

At least sixteen States have by statute eliminated causes of action for both alienation of affections and criminal conversation.[4] The Illinois Legislature has not technically abolished either tort, but it has limited the plaintiff to actual damages.[5] At least seven other States have abolished the tort of alienation of affections, but not the tort of criminal conversation, by statute.[6] The tort of

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alienation of affections apparently never existed in Louisiana Moulin v. Monteleone, 165 La. 169, 178 (1927). No court of last resort in this country has eliminated the tort of alienation of affections by judicial decision.[7] Courts in two States have abolished the tort of criminal conversation, but each decision was based on the recent omission of adultery from a new criminal code. See Bearbower v. Merry, 266 N.W.2d 128, 135 (Iowa 1978); Fagden v. Lenkner, 469 Pa. 272, 280 n. 7 (1976). The Iowa court abolished the tort as of the date the new criminal code took effect. Because the alleged conduct preceded that date, the case was allowed to proceed. The court refused to abolish the tort of alienation of affections. In Connecticut, Maryland, and Pennsylvania, courts have held that statutes abolishing the tort of alienation of affections did not abolish the tort of criminal conversation. See Tarquinio v. Pelletier, 28 Conn. Sup. 487, 489 (Super. Ct. 1970);[8] Kromm v. Kromm, 31 Md. App. 635, 637 (1976); Antonelli v. Xenakis, 363 Pa. 375, 378 (1949).[9]

While we recognize that we have the power to abolish these judicially created torts, we decline at this stage of this case to discuss the questions in any detail. There is certainly no clear indication that any principle expressed in the Constitution of the United States overrides the right of a State to recognize torts of this character. We

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leave to another day the question whether the proof required to establish the tort of criminal conversation should be redefined in any way as a matter of policy.

Report dismissed.