Divorce can be both expensive and traumatic for the parties going through it but in a few states, it can be expensive for the outside party causing the divorce. As one Texas debtor recently found out, causing a marriage to crumble in North Carolina can result in a non-dischargeable debt. King v. Huizar (In re King), No. 19-5007 (Bankr. W.D. Tex. 10/2/19). The case, which can be found here, serves as a reminder that an obscure tort can fit within the broad confines of willful and malicious injury.
Some Background on Alienation of Affections
King v. Huizar involved a North Carolina judgment for alienation of affections. The Debtor in the case made an unfortunate choice of a married woman to pursue because North Carolina is one of just six states which still recognizes the tort of alienation of affections. (The others are Hawaii, Mississippi, New Mexico, South Carolina and Utah). Under North Carolina law, the elements of alienation of affections are: (1)
That he and his wife were happily married, and that a genuine love and
affection existed between them; (2) that the love and affection so
existing was alienated and destroyed; (3) that the wrongful and
malicious acts of the defendant produced and brought about the loss and
alienation of such love and affection. Litchfield v. Cox, 146 S.E.2d 641 (N.C. 1966).
Alienation of affections is one of several torts regarding the marital relationship which seem outdated today. In Tinker v. Colwell, 193 U.S. 473 (1904), the Supreme Court had this to say about the tort of criminal conversation (i.e., adultery):
We think the authorities show the husband has certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act, because the wife is in law incapable of giving any consent to affect the husband's rights as against the wrongdoer, and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and willful.
In today's modern, secular society, the idea that one party to a marriage may have property rights in his/her relationship with the other spouse seems quaint and frankly Victorian. One law review article has suggested that the same principles which prevented states from outlawing same-sex marriage could lead to a similar result with adultery-related torts.
Bruton, The Questionable Constitutionality of Curtailing Cuckolding: Alienation-of-Affection and Criminal-Conversation Torts, 65 Duke Law J. 755, 799 (2016).Justice Kennedy’s discombobulating blend of equal protection and substantive due process in Obergefell may signal another evolution in constitutional law by indicating that state action which infringes on these fundamental rights of personal dignity, intimacy, and marital choice should not be left to the political process when the state’s justifications hinge on essentially moral objections. The arguments against adultery and same-sex marriage are strikingly similar. Many Americans believe adultery and same-sex marriage harm the institution of marriage and the traditional idea of family. Many Americans find both practices morally repugnant. Those beliefs are not the problem, but they become a problem “when that sincere, personal opposition becomes enacted law and public policy . . . [and] put[s] the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”
Unfortunately for Mr. Huizar, North Carolina still recognizes the tort of alienation of affections and the extensive fact finding by the state court judge brought the judgment squarely within 11 U.S.C. Sec. 523(a)(6).
An Affair That Ultimately Outlasted a Marriage
Keith King and Danielle King were married on April 3, 2010. Mrs. King frequently posted on Facebook about how much she loved her husband and started a "Good Wives Club" to help friends in their marriages. Keith King had a business called King BMX Promotions. Mrs. King worked in the business. In August 2015, the Kings put on a show at the Erie County Fair in New York. After Mr. King left to go to a show in Colorado, Mrs. King met Francisco Huizar, who was working as a marketing agent at a Geico Insurance booth. Mrs. King and Mr. Huizar apparently spent an evening together as Mrs. King left her child with the nanny.
On August 28, 2015, Mr. King discovered flirtatious text messages with Mr. Huizar on his wife's phone and Mr. King called up Mr. Huizar and told him to leave his wife alone. It does not appear in the opinion, but according to a newspaper article about the trial, Mr. King was controlling and insisted on inspecting his wife's phone on a regular basis. Mrs. King told Mr. King that she was through with Huizar and he believed her. However, that was not true. Instead, Mr. Huizar traveled to Durham, North Carolina and stayed at a Candlewood Suites hotel located one mile from the King residence on at least seven occasions from August to November 2015.
In November 2015, Mr. Huizar's girlfriend contacted Mr. King and let him know that Mr. Huizar and Mrs. King were talking on the phone a lot, 6,000 minutes of conversations over the course of four months. Mr. King called Mr. Huizar again and told him to leave his wife alone. During the period from August to November 2015, when Mr. Huizar and Mrs. King were talking and having hotel visits, Mr. and Mrs. King were engaging in marriage counseling. In late November 2015, Mrs. King once again stated that she would have no further contact with Mr. Huizar. From August 2015 through March 2016, Mrs. King made Facebook posts about how much she loved her husband. (While the court apparently took these Facebook posts at face value, they could just as easily have been an attempt to cover up the affair).
The affair continued. Mr. King bought his wife a beach spa weekend as a birthday present and Mr. Huizar was there. Mr. and Mrs. King went to the beach for a vacation and Mr. Huizar was there. Throughout 2016, Mrs. King vacillated between continuing the affair and reconciling with her husband. Things escalated in June 2016, when Mr. Huizar took Mrs. King as his date to a wedding in Ohio and then helped her "in running away" from Mr. King across state lines.
Matters came to a head on January 20, 2017. Mrs. King had moved into an apartment with Mr. Huizar. She called Mr. King to come over and help her with a broken breaker. When Mr. King arrived, he was greeted by Mr. Huizar who put him in a headlock while Mrs. King filmed the encounter. This did not help the marriage.
The Jilted Husband Strikes Back
Mr. King filed suit on April 6, 2017. He was not able to serve Mr. Huizar personally so he was served by publication with the foreseeable result that he did not answer. An entry of default was made on January 3, 2018. The Court refused to set aside the default but allowed Mr. Huizar to present whatever evidence he wanted to at trial. Following five days of trial, the Court entered judgment against Mr. Huizar for $8.8 million.
The damages awarded reflected a curious outlook on the husband's property rights in the wife. The largest amounts of damages were for the cost of having to hire a replacement to work in the business and for the household services that Mrs. King would not be performing as a result of the divorce. Damages also included counseling, attorneys' fees and medications. The total amount of economic damages awarded was $1,215,312.00. The Court then awarded an additional $1,000,000 in non-economic damages "to include loss of love, affection, and consortium, loss of sexual relationship, loss of society, companionship and comfort, loss of favorable mental attitude, mental anguish and decline in health and shame and humiliation. The Court then awarded punitive damages of $6,645,936.00 based on three times the amount of actual damages.
In awarding punitive damages, the court made some findings which would be troublesome in the subsequent adversary proceeding. The Court found that Mr. Huizar "conducted malicious, wanton, and willful behavior in interfering with Plaintiff's marriage," that he acted with "malice and willful and wanton conduct," that he acted with "conscious and intentional disregard of and indifference to the rights and safety of others" and that his conduct was "reprehensible and malicious."
The Court showed curious disregard for Mrs. King's agency and free-will. When Mrs. King posted Facebook messages about her wonderful marriage and how they were trying to work things out, the Court accepted that as fact. When Mrs. King testified at trial, the Court found that she "was not a credible person and that she contradicted herself."
Keith King, who is 15 years older than his wife, controlled her access to money, manipulated her low self-esteem, brought porn into the relationship, looked through her phone every other week, put her to work without pay, and continued to schedule shows after she said it was too much work and she needed help with her daughter, (Huizar's attorney) said. He tracked her movements and insisted she keep her hair blond, and wear bikinis and high heels,...
Virginia Bridges, "He slept with a married woman. Now a judge says, pay the jilted husband $8.8 million," Kansas City Star (July 26, 2018), https://www.kansascity.com/news/nation-world/article215577310.html.
Mr. King also testified that he marriage was unhappy from the beginning and that she had pursued Mr. Huizar. This was apparently the testimony that the Judge did not find credible.
The Debtor Does Not Escape Judgment in Bankruptcy Court
The same article same that Mr. Huizar would appeal. He did not. Instead, he filed bankruptcy in San Antonio. Mr. King filed an adversary proceeding under 11 U.S.C. Sec. 523(a)(6) and moved for summary judgment based on collateral estoppel and res judicata. As indicated by the state court findings mentioned above, Judge Gargotta found ample grounds for excepting the debt from discharge as one for willful and malicious injury. He wrote:
The Court also found that several clever defenses were unavailing. First, he argued that when Congress omitted criminal conversation and alienation of affections from the list of non-dischargeable debts, it intended to render those debts dischargeable. He also relied on legislative history indicating that prior case law under the antecedent to section 523(a)(6) which applied a "reckless disregard" standard was overruled. Noting that this was an issue of first impression in the Fifth Circuit, Judge Gargotta relied on cases from other circuits finding that these torts were still nondischargeable.
The Court also found that:
Finally, the Court rejected the argument that the state court judgment was "void as unconstitutional restraint on Defendant's guaranteed free speech rights and under the First and Fourteenth Amendments of the U.S. Constitution. The Court found that the Debtor received adequate due process notwithstanding the citation by publication and rejected the free speech argument.
Final Thoughts
I agree with the Debtor that North Carolina's laws on alienation of affection are arcane because they rely on, at least in this case, the paternalistic assumption that a husband has a property interest in his wife. Moreover, as the Duke Law Review article mentioned above argues, there may be a valid ground to challenge the state's effort to regulate private conduct on morality grounds. However, as Judge Gargotta correctly found, the place to challenge the constitutionality of the law was in the North Carolina courts and not in the Bankruptcy Court.
I have two take-aways from this opinion. The first is that Section 523(a)(6) can cover a broad array of conduct. It can apply to conduct ranging from hitting someone with a baseball bat to conversion to defamation. As long as there is a state law cause of action which requires proof that an injury was willful and malicious it can be brought within the subsection. The second is that it is often too late to discharge an adverse state court judgment once the factual findings have been made. A party in this situation should either file bankruptcy prior to trial and avoid findings from an unsympathetic court or challenge the judgment on appeal in the state court.
The same article same that Mr. Huizar would appeal. He did not. Instead, he filed bankruptcy in San Antonio. Mr. King filed an adversary proceeding under 11 U.S.C. Sec. 523(a)(6) and moved for summary judgment based on collateral estoppel and res judicata. As indicated by the state court findings mentioned above, Judge Gargotta found ample grounds for excepting the debt from discharge as one for willful and malicious injury. He wrote:
The third element of alienation of affection includes the Fifth Circuit’s definitions of “malicious” and “willful” by requiring evidence that harm was caused because of the intentionally wrongful and malicious acts of the defendant. In addition to determining that Huizar’s actions met the element of “malicious activity” in ruling in favor of Plaintiff on the alienation of affection claim, the North Carolina Court specifically determined that Huizar’s actions were willful and malicious:
a. “Defendant’s behavior was reckless, wanton and malicious.” (Complaint Ex. A, ECF No. 1-1, ¶ 36);
b. the “conduct of [Huizar] in this matter has been malicious, reckless, wanton, aggravated, and willful” (Id. at ¶ 86);
c. Huizar’s behavior was “willful, wanton, reckless, brazen and malicious.” (Id. at ¶ 88);
d. “[Huizar] conducted malicious, wanton and willful behavior in interfering with Plaintiff’s marriage from August 2015 through the King’s marital separation and…he continued the behavior until the parties were divorced in December 2017.” (Id. at ¶ 95);
e. “[Huizar’s] conduct during the King’s marriage was reprehensible and malicious.” (Id. at ¶ 101);
f. “This Court finds as a fact by clear and convincing evidence that aggravating factors are present in this matter, including but not limited to malice and willful and wanton conduct on the part of the Defendant, with the conscious and intentional disregard of and indifference to the rights and safety of others, which Defendant knew or should have known was reasonably likely to result in damage, injury or other harm.” (Id. at ¶ 99).Opinion, pp. 14-15.
The Court also found that several clever defenses were unavailing. First, he argued that when Congress omitted criminal conversation and alienation of affections from the list of non-dischargeable debts, it intended to render those debts dischargeable. He also relied on legislative history indicating that prior case law under the antecedent to section 523(a)(6) which applied a "reckless disregard" standard was overruled. Noting that this was an issue of first impression in the Fifth Circuit, Judge Gargotta relied on cases from other circuits finding that these torts were still nondischargeable.
The Court also found that:
Huizar’s arguments that claims for relief involving alienation of affection and criminal conversion are arcane and without merit is not for this Court to decide. This Court must give comity to the North Carolina state court judgment. Huizar’s argument that these claims for relief are contrary to law ignores the fact the neither the North Carolina Legislature or State Supreme Court have overturned these causes of action.Opinion, p. 18.
Finally, the Court rejected the argument that the state court judgment was "void as unconstitutional restraint on Defendant's guaranteed free speech rights and under the First and Fourteenth Amendments of the U.S. Constitution. The Court found that the Debtor received adequate due process notwithstanding the citation by publication and rejected the free speech argument.
Even assuming messages of affection or intimacy conveyed during extramarital affairs are forms of expression protected by the First Amendment—and this Court makes no finding that they are—Defendant fails to mount an appropriate facial or as-applied challenge to the law. Moreover, the underlying facts seem to suggest the Defendant and Danielle Swords King had no intention of ever convey their “message” to the public where it could be observed.Opinion, p. 19.
Final Thoughts
I agree with the Debtor that North Carolina's laws on alienation of affection are arcane because they rely on, at least in this case, the paternalistic assumption that a husband has a property interest in his wife. Moreover, as the Duke Law Review article mentioned above argues, there may be a valid ground to challenge the state's effort to regulate private conduct on morality grounds. However, as Judge Gargotta correctly found, the place to challenge the constitutionality of the law was in the North Carolina courts and not in the Bankruptcy Court.
I have two take-aways from this opinion. The first is that Section 523(a)(6) can cover a broad array of conduct. It can apply to conduct ranging from hitting someone with a baseball bat to conversion to defamation. As long as there is a state law cause of action which requires proof that an injury was willful and malicious it can be brought within the subsection. The second is that it is often too late to discharge an adverse state court judgment once the factual findings have been made. A party in this situation should either file bankruptcy prior to trial and avoid findings from an unsympathetic court or challenge the judgment on appeal in the state court.
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