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Hodges v. Howell6/8/2000
ly enumerated in any statute of limitation, it must, according to well-settled law, fall under the four-year statute. See Olsen v. Hooley, 865 P.2d 1345, 1347 n.1 (Utah 1993) ("A cause of action . . . that is not subject to a specific statutory limitations period is governed by the residual four-year limitations period found in ยง 78-12-25 ."); Dow v. Gilroy, 910 P.2d 1249, 1251-52 (Utah Ct. App. 1996) (holding four-year statute applies to action to determine paternity because no other limitation period is prescribed by statute); see also Woodman v. Goodrich, 291 N.W. 768, 769 (Wis. 1940) (holding catch-all, rather than alienation of affections statute of limitation, applies to action for criminal conversation because criminal conversation is not specifically enumerated).
Further, we are not persuaded by Defendant's argument that seduction and alienation of affections are so closely related that they should share the same limitation period. Cf. Norton v. Macfarlane, 818 P.2d 8, 13 n.9 (Utah 1991) (stating "'it is by no means certain that . . . alienation of affections seduction . . . should be lumped together for identical treatment'" (citation omitted)). To pursue a successful action for alienation of affections, the plaintiff must prove: "(a) he fact of marriage, (b) that the defendant wilfully and intentionally, (c) alienated the wife's affections, (d) resulting in the loss of the comfort, society and consortium of the wife, and (e) (to justify punitive damages) a charge of malice." Wilson v. Oldroyd, 1 Utah 2d 362, 367, 267 P.2d 759, 763 (1954). "The gist of the tort is the protection of the love, society, companionship, and comfort that form the foundation of a marriage and give rise to the unique bonding that occurs in a successful marriage." Norton, 818 P.2d at 12. Sexual relations with the spouse whose affections are alienated is not a necessary element of the tort. See id.
In contrast, our supreme court has defined seduction as "the offense of inducing a woman to consent to unlawful sexual intercourse, by enticements which overcome her scruples" and as an act involving "some undue influence, artifice, deceit, fraud, or . . . some promise to induce the plaintiff to surrender her chastity and virtue." Bowers v. Carter, 59 Utah 249, 252, 202 P. 1093, 1094-95 (1921) (citations omitted). Thus, sexual intercourse is the gravamen of seduction, in direct contrast to alienation of affections, in which violation of the spouse's consortium interest is the main interest protected.
Defendant cites Tolman v. K-Mart Enterprises of Utah, Inc., 560 P.2d 1127 (Utah 1977), to support his contention that the seduction statute of limitation should also apply to alienation of affections. In Tolman, the plaintiff argued the four-year, catch-all statute of limitation should apply to his false arrest action. See id. at 1128. The defendant asserted that the one-year statute for false imprisonment should also apply to false arrest. See id. The supreme court stated that the " olution to the problem . . . is found in looking to the basic nature of the alleged violation of the plaintiff's right." Id. Because both torts involve a "wrongful imposition of control over [the plaintiff's] freedom of movement, . . . false arrest is but a particular circumstance that may be involved" in false imprisonment. Id. In addition, the court noted, the one-year statute of limitation applied to "all other invasions of personal liberty." Id.
The Tolman analysis supports Plaintiff's, rather than Defendant's, position. The "basic nature of the alleged violation of the plaintiff's right," id. at 1127, in the alienation of affections cause of action is the injured spouse's loss of the right of consortium
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