JACKSON, Miss. (Legal Newsline) - A man who won a $700,000 verdict over the belated discovery that his two children were fathered by someone else had it taken away after the Mississippi Supreme Court ruled he waited too long to sue and his lawyer submitted the wrong instructions to the jury.
Two justices said the opinion should have gone further to eliminate the tort of alienation of affection, which Mississippi and five other states have kept on the books even though it has roots in the idea that wives are the property of their husbands.
John Davis sued his ex-wife Sandra and Porter Horgan in 2018 after genetic testing revealed that his two children born in the 1980s were not his own. He suspected they were fathered by Horgan, a man with whom Sandra acknowledged she had a relationship that was “sporadic and sexual, not emotional.”
Davis sued for fraud, alienation of affection and intentional inflection of emotional distress. Although he and Sandra divorced in 2001 and evidence at trial showed he stopped paying child support and emptied trusts for his children, Davis argued he was deceived into supporting his children and believing they were his own.
Sandra and Horgan moved to dismiss on the three-year statute of limitations but Pike County Judge Barry Ford denied the motion and the case went to trial in June 2020. At trial, Davis’s daughter testified she remembered Horgan picking her up at daycare and saw him repeatedly after her mother began working with him. Horgan testified he couldn’t remember much about his encounters with Sandra but “they never had an `affair’ with flowers and hotel rooms.” Sandra testified she didn’t know Horgan fathered her children and she contributed more financially to the marriage than her husband.
At the end of the trial, Davis’s attorneys, Edward L. Bean and Tyler Bo Shandy, submitted jury instructions for all three claims, but the defense objected to combining fraud and intentional infliction of emotional distress in one damages claim. Davis’s attorneys then withdrew those claims, leaving only instructions for alienation of affection.
That was one of two fatal errors, the Mississippi Supreme Court ruled in a March 16 decision. First, the court said, the trial judge erred by failing to apply the three-year statute of limitations to the alienation of affection claim. Davis argued the court should use the “discovery rule,” starting when he discovered his wife’s affair. The only opponents to this principle were “liberals . . . willing to stray from our laws that are based on Judo Christian principles which punish citizens of this state for crimes that are based on those principles, i.e. murder, rape, robbery, fornication, sexual battery of children, elderly abuse, etc.”
The Supreme Court adhered to precedent, however, citing another decision holding that since the claim is based on damage to the marriage, the plaintiff should be required to discover it as it is happening. “The tort requires loss of affection or consortium, an injury that is readily perceivable with reasonable diligence,” the high court ruled.
Since the jury was only instructed to award damages on the alienation of affection claim, the court went on, Davis lost everything. It isn’t the job of a trial judge to help lawyers craft jury instructions, the court ruled. “John’s failure to request damages instructions does not warrant that he get a second bite at the apple,” the court concluded.
Justice Robert Chamberlain concurred, joined by Justice Kenneth Griffis, but they would have gone further. They called for the abolition of the claim of alienation of affection. Only six states still allow it, Justice Chamberlain wrote. The tort has roots in the idea that wives were the property of their husband, but after women gained property rights, he wrote, “the tort could no longer market itself as a man’s right to compensation for the loss of his property.”
“So, the tort hired a PR firm and rebranded,” he wrote. “Now, it served to maintain and protect the integrity of marriages from outside interference and could be utilized by both partners in the marriage.”
The underlying idea is still that someone has stolen the affection of another, however.
“Lost in this analysis is that, regardless of how it is characterized, nothing has been stolen,” he wrote. “The affection has consensually been bestowed upon the third party.”
The Mississippi Supreme Court nevertheless “doubled down” on the claim in 1999, saying “to abolish the tort of alienation of affections would, in essence, send the message that we are devaluing the marriage relationship.”