Domestic Relations

Star NFL player sued by NC man who says the player seduced his wife

According to the Charlotte Observer,

Fletcher Cox, a two-time Pro Bowl defensive tackle with the Philadelphia Eagles, is being sued for alienation of affection by Joshua Jeffords in Mecklenburg County Civil Court.

This lawsuit has been brought in North Carolina. “An action for alienation of affection permitted recovery for ‘loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of the defendant have brought.’” Andrews v. Gee, 599 F. Supp. 251, 253 (D.S.C. 1984)

I am not sure the policy reasons for such but this kind of suit is unavailable in Alabama. An Alabama statute, Section 6-5-331, reads:

There shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over.

“Since the abolition in Alabama of the heart-balm torts, this Court has refused to recognize ‘any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship.’” D.D., 600 So. 2d at 223

Laws like that in North Carolina seem to be good policy which protect the family and marriage; it certainly puts a financial penalty for potential adulterers. Perhaps its something the Alabama Legislature should reconsider. Seemingly, only Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah still have such a cause of auction.

However, in some jurisdictions, alternative theories have been allowed. For instance, in Scamardo v. Dunaway, 650 So. 2d 417 (La. Ct. App. 1995), the Louisiana Court of Civil Appeals allowed an intentional infliction of emotional distress:

In comparing the two theories of recovery, we find that they are distinguishable. Neither the policies nor legal principles giving rise to the claims for framing the rights are the same. Although both have the emotional distress of plaintiff as a primary element of damages, and thus, may appear to overlap, the infliction of emotional distress is a separate, recognizable tort. The law does not limit the action to non-marital situations. However, the mere seduction and loss of one’s spouse due to the seduction or affair cannot be the basis for the action. There must be proof that defendant violated some legal duty to plaintiff, so that plaintiff is in fact the victim and not just the jilted party. Further, the burden of outrageous conduct is a heavy one. Otherwise, the cause of action is for alienation of affections, which is not legally recognized in this state.

D.D. seems to preclude this argument. (However, perhaps the existence of the separate duty towards the Plaintiff could make a difference to the Alabama courts.) See also, Gasper v. Lighthouse, Inc., 533 A.2d 1358 (1987); Accord Payne v. Osborne, No. 1997-CA-001818-MR (Ky. App. 06/04/1999).

Can a 16-year-old decide which parent he wants to live with?

NO!

Another prominent legal myth is that a 16 years can decide with which parent they are going to live. The typical scenario is that a couple divorce when their children are younger and the custody is awarded to the mother. Years pass and the child (usually boys) reach their teenage years. Suddenly, weekends at Dad’s looks more fun for the teen: more liberty, less strict. Dad and teen decide its a good idea to change custody. A 16 year old can decide their residence can’t they?

This is just not so. The child’s wishes are a mere consideration in a myriad of factors for custody but are not any where near decisive. How many sixteen years would choose to stay with the fun non-custodial parent? Or how many would choose to stay with the parent which doesn’t discipline them during their visitation periods? Of course, this would be unwise policy for the courts.

Before a court can change a custody order, first, there must be evidence that satisfies what is called the McLendon standard. The Ex parte McLendon standard states that a “parent seeking a change in custody must establish that the change would materially promote the interests and welfare of the child and that the benefits of the change in custody would more than offset the inherently disruptive effect caused by uprooting the child.” After a custody order is entered, a presumption arises in favor of the non-custodial parent; the playing field is no longer level.

A child’s preference doesn’t overcome that presumption. As the Alabama Court of Civil Appeals stated in one case: “The child merely prefers to live with her father at this time. Under Alabama law, this is simply not enough to justify a change of custody.” Glover v. Singleton, 598 So. 2d 995, 996 (Ala. Civ. App. 1992)

Child Support Arrears? Go after the house and boat.

Listen to the surprise of this journalist as he recounts the tactics in this child support collection case from this article entitled: County aims to take house, land of man who owes $40G in child support.

To force a Scott Twp. man to pay what he owes his ex-wife and two high-school-age children, Lackawanna County has taken the highly unusual route of going after his houses and land. Jeffrey Borsheski, 48, is nearly $40,000 behind in his child-support payments.

Most times, people which are owed child support merely rely upon wage garnishment and/or threats of jail to extract court-ordered child support from the non-custodial parent. Oddly, they act differently than any other judgment holder.

In Alabama, each month that a child support payment is due and unpaid, a judgment is rendered against that non-custodial parent. (This is why child support arrearage cannot be waived by a court.)  Sometimes, this sum total is reduced to a written order but this isn’t required.

Most any other kind of judgment holder would pursue physical assets (i.e. house, bank accounts, vehicles, guns, equipment, boats, etc.) first. Wage garnishment would be secondarily pursued. They want their money now and prefer to not wait each month for the garnishment to ta.

However, this is exactly opposite how most child support judgment holders act: they wait month-to-month for a trickle of income hopefully first. If arrears gets too great, they finally seek contempt of court: meaning jail for the child support obligor. (Typically a lose-lose scenario.)

I’m not sure why child support judgment holders act so differently than other judgment creditors. They should go after the physical assets. Issue post-judgment discovery to locate the assets. Search the revenue commissioner’s office for real estate. Search the DMV or probate office for vehicles. Have the Sheriff seize physical assets and auction them off. Have their banks freeze their accounts and give you the contents.

The county’s extreme action against the defendant is rarely employed, county officials said, because people way behind in their child support payments rarely have property. If they do, it’s usually owned jointly, often with a spouse. But when Mr. Luongo did a little research, he discovered the Scott Twp. home was owned solely by Mr. Borsheski, meaning the county could take and sell it to pay his massive bill to his ex-wife and kids.

And, in Alabama, you can take these actions privately, you don’t need to wait for DHR to become this aggressive in collection efforts. (When I prosecuted for DHR, I would inquire of parents in contempt about their assets and sometimes look to seizure on the judgment.)

As noted in the article, in Alabama, the judgment creditor couldn’t “give” the physical assets either. That would be a fraudulent transfer. The courts would set it aside and get the property back. Such a transfer may delay the result but only runs up the costs for the person in arrears.

Mr. Borsheski’s ex-wife, Anita Vadala, 50, of Mayfield, said she hopes her struggles can help other mothers reclaim some of the support they are owed, which in her case is $602 per month.