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State ex rel. Justin S. Golden, Sr. and New York Life v. Honorable Tod J. Kaufman, Judge; and Mark A. Miller

State ex rel. Justin S. Golden, Sr. and New York Life v. Honorable Tod J. Kaufman, Judge; and Mark A. Miller

Case No. 
Type of Proceeding: 
Original Prohibition

Are claims arising out of an extramarital affair precluded under W.Va. Code 56-3-2a even though, strictly speaking, they are not pled as claims for alienation of affection?


The plaintiff alleges that the defendant, Golden, an insurance agent, entered into a sexual relationship with his then-wife while attempting to sell an annuity.  According to the plaintiff, the defendant’s conduct destroyed his marriage.  The plaintiff sued the defendant along with his employer for criminal conversation, breach of fiduciary duty, intentional infliction of emotional distress, and negligent training, supervision, etc.

The defendants jointly moved to dismiss citing W.Va. Code 56-3-2a, and Weaver v. Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d (1989).  W.Va. Code 56-3-2a abolishes any tort claims for alienation of affections.  Weaver goes even further, advising trial courts to “look to the substance of the plaintiff’s complaint and not merely to its form.”  The defendants argued that the claims pled by the plaintiff were, in substance, claims for alienation of affections.  Accordingly, they were subject to the statutory bar.  The trial court disagreed.

Positions of the Parties: 


 The defendants argue that, in effect, the plaintiff “disguises his alienation of affections claims by labeling them something else.”  Citing Weaver extensively, the defendants point out that all of the plaintiff’s claims--however labeled--are premised on the defendant’s illicit affair.  Thus, looking at the “substance” of the plaintiff’s complaint as Weaver requires, these claims fall within the scope of W.Va. Code 56-3-2a and are, therefore, barred.


Criminal conversation (i.e., a tort claim for adultery) has been a part of West Virginia’s common law for nearly 100 years.  The plaintiff points out that the elements of criminal conversation are, in fact, distinct from the elements of alienation of affections.  W.Va. Code 56-3-2a only abolishes claims for alienation of affections.  To reach the result urged by the defendants would violate the canons of statutory construction and effectively rewrite W.Va. Code 56-3-2a.

Probable Impact: 

This case presents an interesting legal issue.  Weaver, decided 25 years ago, was the Supreme Court’s last foray into this subject area.  Aside from all of the usual legal arguments regarding the scope of the pleadings, statutory construction, etc., the Supreme Court will have wrestle with an overriding public policy issue--i.e., to what extent, if any, should the court system be involved in providing a civil remedy for adultery?

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