Nelson v. Jacobsen , 1983 Utah LEXIS 1150 ( 1983 )

OAKS, Justice:

In a bench trial of this action for alienation of a wife’s affections, the plaintiff husband obtained a judgment of $84,600 against a defendant who was unrepresented by counsel. On appeal, defendant seeks judgment notwithstanding the verdict or a new trial.

Plaintiff and Brenda Nelson were married July 15, 1978. He was 21 years old; she was 18. They lived in Salina. From the beginning, their marriage was characterized by turmoil and violence. Brenda testified that plaintiff frequently came home drunk and abused her physically and verbally. His heavy drinking led to numerous confrontations with the police, including two arrests for drunk driving. She also drank. Within two months of marriage, and long before either party knew defendant, plaintiff told Brenda he wanted a divorce.

Brenda Nelson first met defendant in the fall of 1978 in the Safari Motel and Cafe, which defendant managed for his parents. Defendant, who had been divorced, was then 31. Plaintiff met defendant in January 1979. The three became friends.

Brenda initiated most of the contact between herself and defendant. She first made sexual advances toward him at a party in January 1979, but they were unreci-procated at that time. In the next six months, she frequently visited defendant at his home in Axtell, “depending] on [plaintiff’s] work schedule,” and she and defendant sometimes drove around together in her truck.

Plaintiff first became aware of Brenda’s involvement with defendant in early June 1979. Twice he came home early from his night shift at the coal mine and discovered them together. The second discovery gave rise to a discussion that ultimately involved both spouses’ parents, during which Brenda admitted seeing defendant and promised to stop. In late June, she talked with defendant at a beer party. Seeing this, plaintiff dragged her behind his truck and began beating her. When defendant intervened, a fight ensued between plaintiff and defendant in which plaintiff was injured.

Plaintiff quit the coal mine in July and took a job with a trucking company in order to spend more time with Brenda. About three weeks later, Brenda asked him to give her 17-year-old friend a ride home to Rich-field on his way to work the night shift. Rather than driving the girl home, plaintiff bought four six-packs of beer, which the two drank as they drove around in his company truck. Plaintiff made sexual advances toward her. The two were seen together, and when plaintiff arrived at work he was summarily fired for drinking and having an underage passenger in his truck. Returning home late that night, still very drunk, he awakened Brenda with his shouting and cursing. While repeatedly pegging his hunting knife into the floor, he threatened to break every bone in her body if she didn’t call her father to come for her. Brenda went to stay with her parents for a week. When the couple reconciled, Brenda’s father counseled them both to stop drinking if they wanted to save their marriage.

Plaintiff’s parents testified that plaintiff became despondent and withdrawn after he discovered Brenda’s involvement with defendant, and that his drinking also increased. After being fired, plaintiff worked irregularly driving trucks for various construction companies, but he was unemployed for lengthy periods, and his income fell to half of its prior level.

In August 1979, Brenda told plaintiff she wanted time to think about their marital problems. She persuaded defendant to take her with him to Las Vegas, where they stayed overnight. Defendant testified that Brenda slept in a motel while he gambled all night in a casino. (Defendant testified that his relationship with Brenda did not become romantic until several months after plaintiff and Brenda were divorced, October 31, 1979.)

Upon her return, Brenda told plaintiff she thought they could make their marriage work, and they continued to live together. In late August, in response to plaintiff’s questioning, Brenda admitted that she and defendant had had sexual intercourse “probably around" eight to twelve times. Enraged, plaintiff gave her an especially vicious beating. Injured and suffering, Brenda went to defendant’s home for a few days and then to her parents’.

Within a week, Brenda returned to plaintiff and agreed to try again to make the marriage work on condition that the drinking and beating stop. However, she testified, plaintiff’s promises were not kept and after many attempts to mend her marriage she finally left plaintiff because of his drinking and his physical abuse of her.

Plaintiff testified that although Brenda came back to him in September, she seemed “as if she had given up” on the marriage. In October 1979, the couple fought at a party when Brenda discovered plaintiff in the kitchen with another woman. Later that month, Brenda moved out for the last time and went to live with defendant. They were married October 1, 1980.

Plaintiff commenced this action on September 27, 1979. Defendant had only a limited education and no prior experience in legal proceedings. On the recommendation of a friend, he retained a Salt Lake City attorney to represent him. Defendant paid this attorney a retainer of $500 and an additional $6,500, which the attorney said he would hold in trust to pay additional attorney fees and to negotiate a settlement. The remainder was to be refunded to defendant. Between March and July 1980, the case was set for trial then changed to a pretrial hearing, which was twice vacated and rescheduled while the parties attempted to negotiate a settlement. After reaching a tentative settlement, the parties stipulated on July 29, 1980, to a dismissal of plaintiff’s complaint with prejudice. This dismissal was entered. Defendant’s attorney advised that the settlement amount was $5,000 and asked defendant to send the money. When asked why he did not pay this amount out of the trust fund, the attorney replied that his legal fees had depleted almost the entire $7,000 previously paid. Defendant protested that he did not have an additional $5,000. The attorney told him he would not continue to represent him without payment of additional attorney fees to cover the cost of trial, but that if defendant would discharge him he would refund $1,300 from the trust fund. The attorney also advised that defendant could settle the case himself either by giving plaintiff a promissory note for the $5,000 settlement amount or by negotiating his own settlement.

Defendant dismissed his attorney and demanded delivery of his file in the case, including copies of all correspondence and pleadings and the depositions of both plaintiff and defendant. Defendant represents that his attorney never sent him the case file and that the attorney did not advise him concerning his rights as a litigant, the risks of representing himself, or the possible consequences of the attorney’s withdrawal. The attorney withdrew with court approval in early September 1980 and refunded $1,300 to defendant.

No further proceedings were initiated by either party for a period of four months, during which defendant neither executed a note nor paid plaintiff any money toward the settlement. Thereafter, the settlement agreement having failed, plaintiff petitioned the district court to set aside its earlier order of dismissal, reinstate the action, and set it for nonjury trial. Having been duly notified, defendant attended the hearing without counsel. The petition was granted, and the case was set for nonjury trial two weeks later.

The case was tried on January 21, 1981. Defendant attempted to represent himself at trial. The total judgment taken against him was $84,600: $59,600 for past and future loss of consortium and $25,000 in punitive damages. Defendant’s timely motions for a new trial and for judgment notwithstanding the verdict were both denied, and this appeal followed.

I. FAIRNESS OF TRIAL

Defendant contends that his motion for a new trial should have been granted because he was denied due process of law in the proceedings by not being given adequate and timely notice of trial.¹

Timely and adequate notice and-an opportunity to be heard in a meaningful way are the very heart of procedural fairness. Worrall v. Ogden City Fire Department, Utah, 616 P.2d 598, 601-02 (1980); Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975). The much-cited case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), sets out the classic requirements of adequate notice:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. [Citations omitted.]

Many cases have held that where notice is ambiguous or inadequate to inform a party of the nature of the proceedings against him or not given sufficiently in advance of the proceeding to permit preparation, a party is deprived of due process. Graham v. Sawaya, Utah, 682 P.2d 851 (1981); Uhler v. Secretary of Health & Mental Hygiene, 45 Md.App. 282, 412 A.2d 1287 (1980); Myers v. Moreno, Mo.App., 564 S.W.2d 83 (1978).

Applying these standards to the record in this case, we conclude that the notice of trial was constitutionally deficient as to this unrepresented defendant because it described the nature of the proceedings against him in such ambiguous terms that it deprived him of adequate time to prepare his defense.

Plaintiff’s petition to set aside the earlier dismissal and reinstate the lawsuit was filed on December 26, 1980. The petition was heard on January 7, 1981. Defendant was present in the courtroom without counsel; plaintiffs counsel was temporarily absent. The record of the hearing reads as follows:

The Court: We are now on Civil 7928, Nelson vs. Jacobsen. Is [plaintiff’s counsel] here?

The Clerk: No, Your Honor.

The Court: Well, I’m going to set this case for hearing on January 21st at 10:00 a.m., following the Law and Motion matters. You notify [plaintiff’s counsel] accordingly. [Emphasis added.]

The district court then proceeded to other cases, and defendant left the courtroom.² The minute entry, dated January 8, 1981, states that “[plaintiff’s motion is granted and this matter is set for hearing on Jan. 21st, 1981, to follow the Law and Motion Calendar as a non-jury trial.” But there is no indication in the record that defendant ever saw or received a copy of the minute order. Hence, we must assume that the only notice defendant received at this time was the district court’s oral statement that the case had been set for “hearing” two weeks later.

The order of reinstatement scheduling the case for trial on January 21 was executed January 14 and mailed to defendant January 15, 1981. On that same day, the court clerk sent defendant a separate notice that the matter was set for trial six days later. Defendant received the order and the notice on January 19, just two days before trial. The record indicates that the receipt of these documents constituted defendant’s first notice that the January 21 event was to be a full-scale “trial,” rather than a “hearing.” Exactly two weeks after the lawsuit was reinstated and two days after he received notice of the date of trial, the. case went to trial. Defendant represented himself. The court awarded a judgment against defendant for $84,600.

“To satisfy an essential requisite of procedural due process, a ‘hearing’ must be prefaced by timely notice which adequately informs the parties of the specific issues they must prepare to meet.” State v. Gibbs, 94 Idaho 908, 914, 500 P.2d 209, 215 (1972). In cases where the notice is ambiguous or misleading, courts have found a denial of due process. In Watson v. Washington Preferred Life Insurance Co., 81 Wash.2d 403, 502 P.2d 1016 (1972) (en banc), notice of a shareholders’ meeting “[t]o consider and vote upon a plan and agreement of merger .. . [and to] transact . . . other business” was held constitutionally inadequate and violative of due process because it failed to inform shareholders that those not receiving the mailed notice would be treated as “missing shareholders” and that, should they fail to appear at the shareholders’ meeting, the court would appoint, ex parte, a representative to vote their shares. 502 P.2d at 1020. Similarly, in City and County of Denver v. Eggert, Colo., 647 P.2d 216 (1982) (en banc), the Colorado Supreme Court held violative of due process notice of a “hearing ... to allow information regarding [a] landfill operation to be made public in the interests of the health, safety, and welfare of [the county’s] citizens” where it was clear from the record that the plaintiff-city and its contractors “had no idea that the result of the hearing would be a cease and desist order effective almost immediately” against them. 647 P.2d at 223-24. Finally, in State v. Gibbs, supra, the court held that an order waiving juvenile jurisdiction and binding the juvenile over for trial as an adult violated the juvenile’s due process rights where it resulted from notice which contained only allegations of the juvenile’s unlawful acts and made no mention that a primary purpose of the “interviews” with a magistrate was to determine whether juvenile jurisdiction should be waived.

“Due process” is not a technical concept that can be reduced to a formula with a fixed content unrelated to time, place, and circumstances. Rather, “the demands of due process rest on the concept of basic fairness of procedure and demand a procedure appropriate to the case and just to the parties involved.” Rupp v. Grantsville City, Utah, 610 P.2d 338, 341 (1980).

To a member of the bar or even to a layperson experienced with trial proceedings, setting a case for “hearing” could have been understood as setting a ease for “trial.” But to this uneducated and inexperienced defendant, a setting for “hearing” was not a clear notice that the defendant had to be ready for trial on that date. Indeed, defendant had earlier attended one “hearing” in which plaintiff’s petition to reinstate was granted without evidence or discussion, without requiring that plaintiff or his counsel be present and without requiring any participation by defendant. Based on his experience at this earlier hearing, defendant could reasonably have concluded that the “hearing” set for January 21 would also be routine.

Defendant was entitled to undertake his own representation. U.C.A., 1953, § 78-51-25; Heathman v. Hatch, 13 Utah 2d 266, 268, 372 P.2d 990, 991 (1962). As a general rule, a party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar, Manka v. Martin, 200 Colo. 260, 614 P.2d 875, 880 (1980) (en banc), cert. denied, 450 U.S. 913, 101 S.Ct. 1354, 67 L.Ed.2d 338 (1981); Johnson v. Aetna Casualty & Surety Co., Wyo., 630 P.2d 514, 517, cert. denied, 454 U.S. 1118, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981); Smith v. Rabb, 95 Ariz. 49, 53, 386 P.2d 649, 652 (1963).

At the same time, we have also cautioned that “because of his lack of technical knowledge of law and procedure [a layman acting as his own attorney] should be accorded every consideration that may reasonably be indulged.” Heathman v. Hatch, 13 Utah 2d at 268, 372 P.2d at 991. Reasonable consideration for a layman acting as his own attorney does not require the court to interrupt the course of proceedings to translate legal terms, explain legal rules, or otherwise attempt to redress the ongoing consequences of the party’s decision to function in a capacity for which he is not trained. Judges cannot be expected to perform that function. In this case, the trial judge was as considerate and helpful as he could be expected to be during the course of the trial.

The deficiency in this ease concerns what happened before the trial. The vulnerability of a layman who is unrepresented as he approaches a trial of the legal and factual complexity of this case requires more judicial consideration than was extended here. Most importantly, defendant was not clearly informed of the date of trial until two days before it was to begin. That deficiency jeopardized one of the most important ingredients of due process: time to prepare a defense. In addition, in view of the nature of this action the court should have advised the defendant prior to trial of his right to a trial by jury. And, in view of the fact that defendant had previously been represented by retained counsel whom he had discharged, the court might also have taken steps to assure that defendant was advised of his right to require that counsel to provide the case file and other documents whose preparation had been covered by the prior representation. In this case, plaintiff’s counsel repeatedly used defendant’s deposition to impeach him during trial. Defendant apparently had no copy of that deposition or of his former counsel’s deposition of plaintiff for study prior to the trial.

In all the circumstances of this case, we conclude that it was fundamentally unfair to put defendant to trial on January 21 without counsel and without the other pretrial advice described here. The judgment must therefore be reversed and the cause remanded for a new trial.

II. CAUSE OF ACTION FOR ALIENATION OF AFFECTIONS

Most of the briefing on this appeal concerns the issue posed by the motion for judgment notwithstanding the verdict. Defendant urges us to abolish the cause of action for alienation of affections. We rule on this issue for the guidance of the district court on remand. Notwithstanding the public policy grounds defendant advances, we choose to retain this cause of action for the reasons and with the limitations outlined below.

We have had no occasion for an in-depth consideration of the common-law cause of action for alienation of affections for nearly thirty years. During that time, as defendant notes, this cause of action has fallen from favor and has been abolished or restricted in a majority of jurisdictions. Eighteen states and the District of Columbia have abolished this cause of action by statute.³ Two other states have abolished it by judicial decision.⁴ Six jurisdictions have statutes abolishing the cause of action for money damages at law, but permitting suits for injunctive relief in equity.⁵ The statutes of two additional states have abolished the cause of action for alienation of affections with only insignificant exceptions.⁶ The appellate courts of three other states have voiced their dissatisfaction with the cause of action,⁷ and three others have enacted legislation shortening their statutes of limitation to one year.⁸ Louisiana has never recognized this cause of action.⁹ We note that with but two exceptions, when this cause of action has been abolished it has been by legislative rather than judicial action.

Defendant argues that a cause of action for alienation of affections is based on the obsolete and fictitious assumptions that “the wife is one of the husband’s chattels, and that her companionship, her services and her affections are his property.” Moulin v. Monteleone, 165 La. 169, 175, 115 So. 447, 450 (1927). While the archaic notion of “wife as chattel” may have served as the historical foundation for this cause of action, its modern content bears little resemblance to that notion. The right to recover for alienation of affections now extends to both spouses equally. See, e.g., Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980); Burch v. Goodson, 85 Kan. 86, 116 P. 216 (1911). Moreover, an action for alienation of affections is no longer based on the premise that either spouse constitutes the “property” of the other, but on the premise that each spouse has a valuable interest in the marriage relationship, including its intimacy, companionship, support, duties, and affection. Note, “The Case for Retention of Causes of Action for Intentional Interference with the Marital Relationship,” 48 Notre Dame Law. 426, 430-31 (1972).

The law protects. many relational interests. L. Green, “Basic Concepts: Persons, Property, Relations” in The Litigation Process in Tort Law 413, 418-24 (1965). We have recently recognized a plaintiff’s right to recover for the loss of prospective economic relations. Leigh Furniture & Carpet Co. v. Isom, Utah, 657 P.2d 293 (1982). We recognize a cause of action against a defendant who intentionally interferes with a contractual relation. Bunnell v. Bills, 13 Utah 2d 83, 90, 368 P.2d 597, 602 (1962) (inducing breach); Restatement (Second) of Torts § 766 (1977). Our wrongful death statutes have long recognized the value of a plaintiff’s interest in his or her relationships with family members. U.C.A., 1953, §§ 78-11-6, 78-11-7. We have repeatedly sustained a plaintiff’s right to recover for “the loss of society, love, companionship, protection and affection which usually constitute the heart of the action.” Jones v. Carvell, Utah, 641 P.2d 105, 108 (1982). Accord, In re Behm’s Estate, 117 Utah 151,159-60, 213 P.2d 657,661 (1950).¹⁰ The marital relationship is entitled to as much protection as these.

Second, defendant contends that there is no proof that an action for alienation of affections achieves its intended purpose of protecting and preserving the marriage. In contrast, he argues, “the very nature of the action serves as a destructive influence on the marriage.” This argument misperceives the purpose of the action. It makes little sense to speak of actions growing out of injuries to relations as intended to “preserve” or “protect” those relations. Actions for intentional interference with prospective economic relations or for inducing breaches of contract are not intended to reestablish those relations or reinstate those contracts but to compensate plaintiffs for their loss. Actions for wrongful death obviously do not restore the plaintiffs’ relationships with the deceased; the law seeks only to compensate for losses. Similarly, a suit for alienation of affections does not attempt to “preserve” or “protect” a marriage from interference, but only to compensate a spouse who has suffered loss and injury to his or her marital relationship through the intentional interference of a third party.

Third, defendant contends that the threat of an action for alienation of affections is a powerful tool of extortion since “there exists such potential to damage reputations” that at least one court and one commentator have characterized alienation actions as “legalized blackmail.” Wyman v. Wallace, 15 Wash.App. 395, 397, 549 P.2d 71, 72 (1976), aff’d, 94 Wash.2d 99, 615 P.2d 452 (1980); M. Grossman, The New York Law of Domestic Relations § 313 (1947). While it cannot be gainsaid that many types of litigation place private facts in a public light, an action for alienation of affections is no more “extortive” in this sense than an action for criminal conversation, which has adultery as its operative element, Cahoon v. Pelton, 9 Utah 2d 224, 231, 342 P.2d 94, 98-99 (1959), or a suit to change the custody of children on the basis of the parental deficiencies of the custodian, or a defamation action in which the defense of truth puts the plaintiff’s reputation in question. See, e.g., Crellin v. Thomas, 122 Utah 122, 247 P.2d 264 (1952). If, as defendant claims, it is “[g]reed, revenge, spite and a desire to humiliate others” that encourages a plaintiff to sue for alienation of affections, the plaintiff must surely be dissuaded to some extent by the knowledge that his or her own foibles, failures, and inadequacies as a marital partner may be given public exposure by a defendant seeking to disprove causation or to mitigate damages.

In any case, even if some alienation actions are motivated primarily by spite or extortion, that is no basis on which to abolish the cause of action altogether.

First, the very purpose of courts is to separate the just from the unjust causes; second, if the courts are to be closed against actions for ... alienation of affections on the ground that some suits may be brought in bad faith, the same reason would close the door against litigants in all kinds of suits, for in every kind of litigation some suits are brought in bad faith; the very purpose of courts is to defeat unjust prosecutions and to secure the rights of parties in just prosecutions ....

Wilder v. Reno, 43 F.Supp. 727, 729 (D.Pa.1942). It is noteworthy that our research has disclosed only one case in which there was evidence that the plaintiff and the “alienated” spouse colluded for purposes of extortion, and in that case recovery was denied. Wilson v. Aylward, 207 Kan. 254, 484 P.2d 1003 (1971).

In truth, “procedural limitations and judicial discretion have been deemed adequate safeguards against abuse in other areas of the law vulnerable to bogus claims,” and “[tjhere is no reason to assume that they cannot be used to similar advantage in this area.” Note, 48 Notre Dame Law., supra, at 430. Moreover, the courts will not tolerate waste or abuse of judicial resources, and a plaintiff who institutes a groundless or collusive suit is subject to a suit or counterclaim for abuse of process or malicious prosecution. Leigh Furniture & Carpet Co. v. Isom, 657 P.2d at 308-09; W. Prosser, Handbook of the Law of Torts §§ 120, 121 (4th ed. 1971). Finally, abolishing a cause of action for alienation of affections will not eliminate or even reduce extortion (which can still be accomplished by threatening to expose a person to his family or colleagues or publicize his indiscretions in other ways), but it will surely close the courthouse doors to at least some deserving plaintiffs.

Defendant’s contention that an action for alienation can be used to victimize innocent and unsuspecting defendants is answered by the fact that this is an intentional tort. There can be no recovery against a defendant whose conduct is blameless or merely negligent (such as a person who is not aware that the object of his or her attentions is married). On the other hand, the element of intent can be proved where the defendant’s actions are the product of choice. See Note, 48 Notre Dame Law., supra, at 431. In fact, where a defendant has actual notice of the marriage, his or her continued overtures or sexual liaisons can be construed as something akin to assumption of the risk that this conduct will injure the marriage and give rise to an action.

Fourth, relying on Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), defendant contends that “an alienation of affections action unreasonably, and perhaps unconstitutionally, interferes with and impinges upon [a] defendant’s right of privacy ... in the area of personal and sexual relationships between individuals.” This argument is misplaced for two reasons. Griswold and Eisenstadt are inapposite because sexual relations are not a necessary element of alienation of affections. Cahoon v. Pelton, 9 Utah 2d at 231, 342 P.2d at 98-99; Trainor v. Deters, 22 Ohio App.2d 135, 139-40, 259 N.E.2d 131, 135 (1969). Second, while both Griswold and Eisenstadt were said to involve “unwarranted governmental intrusion” into sexual relations and reproductive choices, Eisenstadt, 405 U.S. at 453, 92 S.Ct. at 1038 (emphasis added), a cause of action for alienation of affections involves interference by a private individual. As between two private individuals, defendant’s claim to sexual and reproductive privacy can be no greater than plaintiff’s, and neither can claim constitutional immunity to use his or her own “rights” to invade the “privacy” of the other.

Fifth, defendant urges us to abolish all actions for alienation because it is difficult to determine the intangible injuries involved. Since there is no standard of measurement for the trier of fact, defendant argues, judgments in this area of the law are frequently arbitrary and excessive. But the injury in this action seems no more “intangible” and no more difficult to value than pain and suffering in a personal injury action or the loss of comfort, society, and companionship in an action for wrongful death. The emerging law of intentional infliction of emotional distress attests to the law’s willingness to have juries and judges put monetary values on psychic and emotional harm. See, e.g., State Rubbish Collectors Association v. Siliznoff, 38 Cal.2d 330, 337-39, 240 P.2d 282, 286 (1952) (en banc) (Traynor, J.).

It would be anomalous and unjust to deny recovery where the fact of injury or loss can be proved simply because there is difficulty in assessing its amount. Cf. Cook Associates, Inc. v. Warnick, Utah, 664 P.2d 1161, 1165-66 (1983) (lost profits from new business venture). In Jones v. Carvell, Utah, 641 P.2d 105 (1982), we discussed the application of this principle to the recovery of damages for wrongful death, concluding as follows:

To be sure, the making of such judgments is not easy and requires great understanding of those human values which can make interpersonal relationships so precious. Yet, the process, difficult as it is, must be tempered and confined so as to strike a just balance. The process is not unique to wrongful death cases.

Id. at 108. The rule that affirms the availability of a cause of action despite uncertainties in the assessment of damages is of course implemented in the context of appropriate jury instructions and the court’s power to require remittitur to restrain or reduce arbitrary or excessive jury verdicts. Utah R.Civ.P. 59(a)(5); Cahoon v. Pelton, 9 Utah 2d at 227, 342 P.2d at 95; Ruf v. Association for World Travel Exchange, 10 Utah 2d 249, 351 P.2d 623 (1960); Tice v. Mandel, N.D., 76 N.W.2d 124 (1956).

Defendant’s final argument is both more subtle and more persuasive. He contends that the only marriages which are vulnerable to the depradations of a third party are those in which there is already discord from other causes. He cites the difficulty of proving causation in actions for alienation of affections. He then concludes that where the alienation is attributable to any significant degree to the plaintiff’s own conduct or to the conduct of the alienated spouse, it would be unjust to permit the recovery of damages from a third party.

While conceding the difficulty of proving causation, we conclude that it would be unjust to refuse to try to measure the effect of a third party’s intrusion in a marriage just because the parties to the marriage share some of the responsibility for its demise. Even relatively “good” marriages have intermittent difficulties upon which a predatory defendant might capitalize. And even where spouses are estranged, there is merit to the argument that “each has a right to seek a rapprochement that should be protected against those who would cut it off.” Note, 48 Notre Dame Law., supra, at 432. We are unwilling to adopt a rule of law that would foreclose all remedies on the questionable assumption that any plaintiff whose marriage has gone aground “must have deserved it.” We prefer to consider the state of the marriage and the actions of both spouses as relating to causation and damages.

We outlined such an approach in the leading case of Wilson v. Oldroyd, 1 Utah 2d 362, 267 P.2d 759 (1954). There, in discussing the element of causation, we stated:

If the acts or conduct of the plaintiff himself, or any other cause than the acts of the defendant constituted the controlling cause ... of plaintiff’s loss of affections, then he could not recover, and ... the same would be true “if the plaintiffs wife fell in love with defendant without any affirmative inducement or encouragement from the defendant .... ” [Emphasis added.]

Id. at 374, 267 P.2d at 768. On the issue of damages, we stated: “It is true that there may be great or little affection and that the damages should be proportionate to that which is taken away from the [injured spouse].” Id.

In an apparent effort to improve the fairness of this cause of action, recent cases in other jurisdictions have raised the plaintiff’s burden of proof on the issue of causation and redefined the factors bearing on damages. For example, Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980), which affirmed the plaintiff wife’s recovery for alienation of affections, specifies the following considerations as bearing on those issues:

In order to sustain a cause of action for alienation of affections, the plaintiff must show the following facts:

(1) that she and her husband 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 defendant produced and brought about the loss and alienation of such love and affection....

The wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections. It suffices, according to the rule in a large majority of the cases, if the wrongful and malicious conduct of the defendant is the controlling or effective cause of the alienation, even though there were other causes, which might have contributed to the alienation. [Citations omitted; emphasis added.]

46 N.C.App. at 523, 265 S.E.2d at 436. Accord, Thompson v. Chapman, 93 N.M. 356, 357-58, 600 P.2d 302, 303-04 (N.M.Ct.App.), cert. denied, 92 N.M. 675, 593 P.2d 1078 (1979).¹¹

After considering the various definitions enunciated in other states since our decision in Wilson v. Oldroyd, we are content to reaffirm the rules we established in that case, subject to the two following clarifications and elaborations.

First, the requirement that the defendant’s acts must have constituted the “controlling cause” of the alienation of affections means that the causal effect of the defendant’s conduct must have outweighed the combined effect of all other causes, including the conduct of the plaintiff spouse and the alienated spouse. For this purpose, a defendant is properly chargeable with the effect of mere acquiescence in the overtures of the alienated spouse where the defendant knows or has reason to know that such acquiescence will damage the marital relationship.

Second, in trying to make the damages “proportionate” to the loss of the injured spouse, the trier of fact should consider the duration and quality of the marriage relation, including the extent to which genuine feelings of love and affection existed between the spouses prior to the intervention of the defendant.

III. PUNITIVE DAMAGES

For the further guidance of the district court on remand, we add two rulings on the law of punitive damages as applied to this case and this cause of action.

First, punitive damages can be recovered for the tort of alienation of affections. Wilson v. Oldroyd, 1 Utah 2d at 370, 267 P.2d at 765. As a general rule, punitive damages are available where the defendant’s conduct was “wilful and malicious.” Kesler v. Rogers, Utah, 542 P.2d 354, 359 (1975). However, our commitment to “caution” in the application of punitive damages, First Security Bank of Utah v. J.B.J. Feedyards, Inc., Utah, 653 P.2d 591, 598 (1982), and the fact that the elements of willfulness and maliciousness are, in effect part of the cause of action for alienation of affections,¹² persuade us to require something more with respect to this tort. To avoid a circumstance in which punitive damages are automatically available in every such cause of action, we hold that in order to recover punitive damages for the tort of alienation of affections the plaintiff must show “circumstances of aggravation in addition to the malice implied by law from the conduct of defendant in causing the separation of plaintiff and [his or her spouse] which was necessary to sustain a recovery of compensatory damages.” Heist v. Heist, 46 N.C.App. at 527, 265 S.E.2d at 438; 41 Am.Jur.2d Husband and Wife § 485 (1968).

Second, the award of $25,000 in punitive damages in this case could not be sustained in any event because it was entered without adducing any evidence or making any findings of fact regarding defendant’s net worth or income. While an award of punitive damages requires consideration of many factors, it is primarily intended to punish the defendant and thereby deter others similarly situated from imitating his conduct. Leigh Furniture & Carpet Co. v. Isom, 657 P.2d at 312; First Security Bank of Utah v. J.B.J. Feedyards, Inc., 653 P.2d at 598-99. Thus, the defendant’s net worth and income are always relevant in determining the amount of punitive damages that would be appropriate for punishment. We have expressly held “that it is proper to receive evidence and consider the wealth of the defendant as bearing upon the issue of punitive damages” both in actions for alienation of affections, Wilson v. Oldroyd, 1 Utah 2d at 372, 267 P.2d at 766, and criminal conversation, Cahoon v. Pelton, 9 Utah 2d at 232, 342 P.2d at 99. To the contrary, where a trial record contained no evidence of the defendant’s net worth or income, we have, on our own motion, reduced a judgment of punitive damages to permit an award of no more than $6,000. Cruz v. Montoya, Utah, 660 P.2d 723, 727 (1983).

The judgment is reversed, and the' ease is remanded for a new trial in accordance with this opinion. Costs to appellant.

HOWE, J., concurs.

1 . Defendant also urges error in plaintiff’s failure to give him the statutory notice either to appoint another attorney or appear in person. U.C.A., 1953, § 78-51-36. In the view we take of this case, we need not reach that contention.

2 . Approximately twenty minutes later, plaintiffs counsel entered the courtroom, and the following transpired:

[Plaintiffs counsel]: Your Honor, I was outside. Did you set 7928, Nelson v. Jacobsen? The Court: Did I set that one, Carole?

The Clerk: Yes, Your Honor. You set it for January 21st.

[Plaintiffs counsel]: Well, I wasn’t here so I didn’t know.

The Court: I set the matter for January 21st at 10:00 a.m. to follow the Law and Motion matters. [To the clerk] [W]ill you please notify the Defendant of this hearing so he will know that the matter is set.

The Clerk: I think his counsel has been dismissed.

The Court: Well, then notify him at his address in Salina, or wherever he lives.

3 . Ariz.Rev.Stat.Ann. § 25-341 (Supp. 1982-1983); Cal.Civ.Code § 43.5 (West 1982); Colo. Rev.Stat. § 13-20-202 (1973); Conn.Gen.Stat. § 52-572b (1983); Del.Code Ann. tit. 10, § 3924 (1974); D.C.Code § 16-923 (Supp. 1978); Ga.Code Ann. § 30-109.1 (1980); Ind. Code Ann. § 34 4-4 1 (Burns Supp. 1982); Me. Rev.Stat.Ann. tit. 19, § 167 (1964); Md.Cts. & Jud.Proc.Code Ann. § 5-301(a) (1980); Mich. Comp.Laws Ann. § 600.2901 (1968); Minn. Stat. § 553.02 (1982); Mont.Code Ann. § 27-1-601 (1981); Nev.Rev.Stat. § 41.380 (1979); Or. Rev.Stat. § 30.840 (1981); Va.Code § 8.01-220 (1950); W.Va.Code § 56-3-2A (Supp.1983); Wis.Stat.Ann. § 768.01 (West 1980); Wyo.Stat. Ann. § 1-23-101 (1977).

4 . Fundermann v. Mickelson, Iowa, 304 N.W.2d 790 (1981); Wyman v. Wallace, 94 Wash.2d 99, 105, 615 P.2d 452, 455 (1980).

5 . Ala.Code § 6-5-331 (1975) (injunction permitted, see Logan v. Davidson, 282 Ala. 327, 330, 211 So.2d 461, 463 (1968)); Fla.Stat. § 771.01 (1981); N.J.Stat.Ann. § 2A:23-1 (West 1952); N.Y.Civ. Rights Law § 80-a (McKinney 1976); Ohio Rev.Code Ann. § 2305.29 (Page 1981); Vt.Stat.Ann. tit. 15, § 1001 (Supp.1983).

6 . Okla.Stat.Ann. tit. 76, § 8.1 (West Supp. 1982-1983) (action permitted only if spouse was incompetent or minor at time of alleged alienation); Pa.Stat.Am. tit. 48, § 170 (Purdon 1965) (action permitted if defendant is blood relative of plaintiff).

7 . Ferriter v. Daniel O'Connell’s Sons, Inc., 381 Mass. 507, 1980 Mass.Adv.Sh. 2075, 413 N.E.2d 690, 694 (1980) (action disfavored); Dube v. Rochette, 110 N.H. 129, 130, 262 A.2d 288, 289 (1970) (susceptible to abuse but legislative judgment to allow action respected); Thompson v. Chapman, 93 N.M. 356, 358, 600 P.2d 302, 304 (N.M.Ct.App.1979) (court would abolish tort if it had authority to do so).

8 . Ark.Stat.Ann. § 37-201 (Supp.1983); Ky. Rev.Stat. § 413.140(1)(c) (Supp.1982) (includes alienation action, see Skaggs v. Stanton, Ky.Ct.App., 532 S.W.2d 442, 443 (1975)); R.I.Gen. Laws § 9-1-14 (Supp.1982).

9 . Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927); Ohlhausen v. Brown, La.Ct.App., 372 So.2d 787, 788 (1979).

10 . The value of affection in such familial relationships was even recognized implicitly by a court that abolished a cause of action for alienation of affections between spouses. Despite its strident language on the abolition, the court expressly retained a cause of action for alienating the affections of a child. Wyman v. Wallace, 15 Wash.App. 395, 400 & n. 4, 549 P.2d 71, 74 & n. 4 (1976), aff'd, 94 Wash.2d 99, 615 P.2d 452 (1980) (after initially reversing in 91 Wash.2d 317, 588 P.2d 1133 (1979)).

11 . Kansas and Hawaii have gone even further. Building on a well-developed body of case law in the area of alienation, Long v. Fischer, 210 Kan. 21, 25-26, 499 P.2d 1063, 1067 (1972), redefined the element of causation to make it practically impossible for a plaintiff to sustain the necessary burden of proof. This Kansas rule was adopted verbatim in Hunt v. Chang, 60 Hawaii 608, 594 P.2d 118 (1979).

12 . The tort of alienation of affections requires proof that the defendant “wilfully and intentionally” alienated the spouse’s affections, Wilson v. Oldroyd, 1 Utah 2d at 367, 267 P.2d at 763, and the nature of the wrong inflicted is such that malice is, in effect, “a necessary ingredient of the tort.” Birch field v. Birchfield, 29 N.M. 19, 24, 217 P. 616, 619 (1923).