RICHARD M. JONES,
Plaintiff,
v.
TODD V. SWANSON,
Defendant.
[2001 DSD 25]
United States District Court
District of South Dakota--Southern Division
CIV. 2000-4112
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Robert A. Christenson, Christenson Law Office, Sioux Falls, SD
Attorney for Plaintiff
Jonathan K. VanPatten, Vermillion, SD
A. Russell Janklow, Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux
Falls, SD
Catherine V. Piersol, Piersol Law Firm, Sioux Falls, SD
Attorneys for Defendant
Filed September 12, 2001
Hon. Karen E. Schreier, U. S. District Judge
[¶1] Plaintiff, Richard M. Jones, alleges that defendant, Todd V. Swanson, alienated the affections of his wife, Donna Jones, away from him. Swanson moves for summary judgment on two grounds. First, Swanson contends that Nevada law applies under the choice of law rules for a district court in South Dakota sitting in a diversity case. The applicable law of Nevada does not recognize a cause of action for alienation of affection. Second, if South Dakota law is applied, Swanson contends that Richard cannot show that the affections of Donna have been alienated. The motion for summary judgment is denied.
[¶2] Donna and Richard met in 1979 and were married in 1981. They resided in Sioux Falls, South Dakota, during all pertinent times. They have four children. Donna is a registered nurse at Sioux Valley Hospital. Swanson is an orthopedic surgeon and a resident of Las Vegas, Nevada. Donna and Swanson previously met in Colton, South Dakota, and dated during the summer of 1977, until they left to attend college. They again dated during the summer of 1978. Donna and Swanson had no contact with each other until one telephone conversation in 1997.
[¶3] In September of 1998, Swanson's father suffered a heart attack and was brought to the emergency room at Sioux Valley Hospital in Sioux Falls, South Dakota. While working at the hospital, Donna recognized the family and checked on them in the coronary ICU waiting room. She saw Swanson in the waiting room and they greeted each other. They went for coffee together and talked about their lives and their families. Donna told Swanson that the next day was her birthday and he invited her to lunch. The following day, Donna and Swanson met for lunch. After lunch, they went for a walk in the park across the street. They then embraced and kissed.
[¶4] Donna and Swanson spoke on the telephone a few days after her birthday and again after Swanson returned to Las Vegas. Swanson had a meeting in San Francisco, California, near the end of October and they agreed to meet there. Prior to the trip, Swanson sent Donna a CD with a song on it that he told her to listen to called "I'll Go On Loving You." When Donna arrived in San Francisco, Swanson met her at the airport. They spent five days together in San Francisco and had sexual relations several times. Swanson gave Donna a credit card to help her cover her expenses. They began planning a trip together to Europe.
[¶5] Over the Thanksgiving holiday, Swanson came to South Dakota and stayed at the Radisson in Sioux Falls. Donna came to his hotel room and they had sexual relations. During this trip, Donna and Swanson met with a family and marital counselor to discuss their relationship. Before he returned to Las Vegas, Donna and Swanson had sexual relations at her house in Donna and Richard's bed. During the Sioux Falls liaison, Donna and Swanson spent portions of four days together. Swanson bought Donna gifts for their European trip.
[¶6] In December, Donna and Swanson traveled together to Paris, Switzerland, and Houston. They were together for ten days and spent each night together and had sexual relations regularly over the course of the trip. While in Switzerland, Donna accompanied Swanson to a Swiss bank to discuss the opening of a bank account and moving some of his money to the account. Swanson told Donna he wanted to secure his assets so his wife didn't take him for half his money when they divorced.
[¶7] In January of 1999, Donna separated from Richard. In February, Donna met Swanson in California while he was attending an annual meeting of surgeons. They were together two nights and had sexual relations. Swanson talked to Donna during this trip about ending their relationship, but in February, Swanson sent Donna a card that said "I Love You. Happy Valentine's Day." Donna moved back with Richard in April of 1999.
[¶8] Swanson returned to South Dakota in July of 1999 to attend his sister's wedding. Donna asked him to meet her at a park, where they talked. Donna invited him to her house and they had sexual relations on the bedroom floor.
[¶9] Swanson and Donna did not see each other again until November of 1999. Swanson attended a meeting in Seattle, Washington. Donna met him in Seattle and they had sexual relations. The next day, Swanson told Donna that they needed to stop their relationship, that he needed to keep his family together, and that she needed to keep her family together. Despite Swanson's announcement of the termination of his relationship with Donna, and no further contact between the parties, Donna separated from Richard and moved out of the house permanently in June of 2000. She was served with divorce papers on August 9, 2000.
[¶10] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd 2d 538 (1986).
[¶11] Swanson contends that Nevada law applies under the choice of law rules for a South Dakota district court sitting in diversity. Under Nevada law a cause of action for alienation of affection is not recognized. Richard contends that South Dakota law applies and that a cause of action for alienation of affection is recognized under South Dakota law. Both parties agree that the choice of law is a question of law for the court to determine.
[¶12] "Federal district courts apply the choice of law rules of the state in which they sit when jurisdiction is based on diversity of citizenship." Baxter Int'l v. Morris, 976 F2d 1189, 1195 (8th Cir. 1992) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 US 487, 61 SCt 1020, 85 LEd 1477 (1941)). Thus, this court will apply South Dakota's conflict of laws rules to determine which state's substantive laws govern Jones's cause of action. South Dakota applies the provisions of the Restatement (Second) of Conflict of Laws to determine which state's laws will be applied to a particular fact situation. See Stockmen's Livestock Exchange v. Thompson, 520 NW2d 255, 257 (SD 1994). The Restatement requires a court to follow any "statutory directive of its own state on choice of law." Restatement (Second) of Conflict of Laws § 6(1). South Dakota has no statutory directive governing choice of law in alienation of affection actions.
[¶13] In a case involving interference with a marriage relationship and in the absence of a statutory directive, the Restatement (Second) of Conflict of Laws § 154 directs the court to look to the following:
The local law of the state where the conduct complained of principally occurred determines the liability of one who interferes with a marriage relationship, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
The commentary to § 154 clarifies that the location of defendant's conduct is not as important when the conduct occurs in multiple states.
On occasion, defendant's conduct will occur in two or more states, such as when his travels take him across state lines during the course of his campaign to alienate the affections of plaintiff's wife. Here, the location of the defendant's conduct is not as important a contact as it would have been if all the conduct had occurred in a single state. Nevertheless, the principal location of the defendant's conduct is the most important of all contacts in situations where this conduct can be assigned a principal location. The relative importance of this contact diminishes proportionately with any increase in that part of the conduct that occurred in other states. With any decrease in the importance of the principal place of the defendant's conduct, there is a corresponding increase in the importance of such other contacts, as the matrimonial domicil of the spouses and the domicil of the parties involved.
Restatement (Second) of Conflict of Laws § 154, comment (d) (1969 Main Vol.)
[¶14] Donna and her husband, Richard, resided in Sioux Falls, South Dakota. It was in Sioux Falls, South Dakota, that Donna and Swanson met again and spoke about their feelings for each other. At the conclusion of this conversation, they kissed. Donna and Swanson later spoke by telephone about future liaisons. During two subsequent trips of Swanson to South Dakota, Swanson and Donna had sexual relations, once at his hotel room and twice at her marital residence. During his second trip to South Dakota, Swanson and Donna met individually and together with a family and marital counselor. Swanson paid for the counseling session. After describing their plans for a future relationship to the counselor, Donna felt reassured by the counselor that they were on the right track and that she had a future with Swanson. The counselor told them "you two sound like soul mates to me." Donna and Swanson also had sexual liaisons in hotel rooms in California, Texas, Switzerland, and Washington.
[¶15] The actual number of days that Donna and Swanson spent together in South Dakota (seven days) was less than the number of days they spent together in the other jurisdictions combined (twenty days). Because defendant's conduct occurred in two or more states, other contacts become more important, such as the matrimonial domicile and the domicile of the parties involved. See id. South Dakota is the matrimonial domicile and the domicile of the plaintiff. Furthermore, Donna and Swanson had sexual relations in the marital residence of Donna and Richard in South Dakota. This act is significant in breaking the affections between Donna and Richard, which then allowed Swanson to alienate Donna's affections. In addition, Donna and Swanson saw a marital counselor in South Dakota, who reassured Donna that her relationship with Swanson was realistic and that she had a future with Swanson. Whatever Swanson told the counselor convinced the counselor that Swanson was serious about a long-term commitment to Donna. This was a significant event in their relationship and may have turned this relationship from an affair into what Richard alleges was an alienation of affection. After considering all these factors, the court finds that "the conduct complained of principally occurred" in South Dakota.
[¶16] Restatement (Second) of Conflict of Laws § 154 then directs the court to determine with respect to a cause of action for alienation of affection whether "some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied." The principles to be considered under § 6 are:
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement (Second), id., § 6 (1971).
[¶17] In light of the conduct previously described, two factors relevant to the choice of the appropriate law favor the application of South Dakota law. These two factors are the policies of the interested states and the relative interests of the states in determining the issues. South Dakota recognizes an alienation of affection cause of action by statute. See SDCL 20-9-7. Nevada abolished the cause of action for alienation of affection by statute. See Nev. Rev. Stat. § 41.380 (1997). The Supreme Court of South Dakota recently recognized that the cause of action for alienation of affection has long been recognized by the South Dakota legislature and is the public policy of this state. See Veeder v. Kennedy, 1999 SD 23, ¶23, 589 NW2d 610, 616. South Dakota has the only significant interest in seeing its policy enforced because Donna and Richard reside in South Dakota and, as a result, their affections were located here. Nevada's policy abrogating the cause of action for alienation of affection would not be furthered by its application to a South Dakota marriage. Where the forum state's interests are the "most deeply affected," generally the forum state's law should be applied. Restatement (Second), id. § 6 comment (f) (1971). Neither party contends that the remaining factors are important to this cause of action for alienation of affection.
[¶18] Considering each state's contacts to the conduct complained of and the principles of § 6 of Restatements, South Dakota has the most significant relationship to the occurrence and the parties. Because South Dakota recognizes a cause of action for alienation of affection, Swanson's motion for summary judgment is denied.
[¶19] Swanson also contends that Donna's affections were not alienated. Viewing the evidence in the light most favorable to the nonmoving party, there is evidence that Donna admitted that she loved both Richard and Swanson. Donna testified, however, that she had affections for Richard only sometimes. To recover damages for alienation of affection, the plaintiff must show "loss of affection or consortium." See Veeder, 1999 SD 23, ¶27, 589 NW2d at 617. A question of fact exists for the jury to determine whether any of Donna's affections or consortium were lost. Accordingly, it is hereby
[¶20] ORDERED that Swanson's motion for summary judgment (Docket 22) is denied.
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