SIOUX FALLS, S.D. (CN)—If Russell Flaum of Illinois had any inkling of illicit romance when he met Traci Hylland of South Dakota at a tennis club in Indian Wells, California, he would’ve been better off legally making certain they were unfaithful in California. Or Illinois. Or almost anywhere but South Dakota.
South Dakota is one of six states to recognize an antiquated tort known as “alienation of affection,” which hearkens back to the days when women were considered men’s property. And on Tuesday, U.S. District Judge Roberto Lange in Pierre, South Dakota, sent to jury a lawsuit filed against Flaum by Traci’s spurned husband, Richard—and a return lawsuit filed by Flaum’s wife, Virginia, against Traci.
“The jurisdictional elements are a little mind-twisting,” said Tom Simmons, a professor at the University of South Dakota School of Law, in an interview. “But South Dakota law protects a person whose marriage is wrongfully interfered with.”
Alienation of affection, in theory, protects a spouse from a philanderer who intentionally seduces his or her mate. And while many states have judicially or legislatively done away with it, it’s not stuck in the 18th Century. In 2010, a jury in North Carolina awarded a woman $9 million in an alienation of affection case. Back in 1998, a South Dakota jury awarded $250,000 to a jilted husband whose wife had an affair with her boss at a bank. The case rose up to the state’s Supreme Court, which affirmed the ruling. In his dissent, Justice Robert Amundson noted his dismay with the tort and the statute, saying that the plaintiff—the woman’s husband—had been overheard saying he would spend his quarter-million on a Corvette with license plates reading, “Thanks, Myles.”
Myles was the bank boss’s first name.
The details in South Dakota’s latest high-profile tryst are filled with the passion, vindictiveness and pain one would expect in such a case. While attorneys for Flaum did not return a request for comment and an attorney for Hylland declined the request, Lange’s 19-page response to the Hyllands’ petition for summary judgment and other motions lays out the details of the case.
In 2014, the Hylland family—who maintains a second home in Indian Wells—was vacationing when Traci struck up a friendship with Russell Flaum. Court records show they played tennis, dined, and even met up with Traci’s Palm Desert therapist. When Traci and Richard returned to South Dakota, she and Russell kept up a correspondence, texting and emailing. In one message, she told Russell she was going to leave her husband. Eventually, Richard got suspicious.
After “snooping in her phone,” notes Judge Lange, Richard discovered the digital affair and, in anger, sent a “care package” not only to the Flaums but also to their children, outing the tryst. Russell’s wife sued for invasion of privacy.
Judge Lange dismissed the claim, pointing out that Virginia’s husband was to blame for sending private details of their lives—including love poems—to Richard’s wife in the first place.
The rest of the case will turn on how much of the illicit conduct actually occurred in South Dakota.
“(D)eciding where the conduct complained of principally occurred will be a fact-intensive inquiry,” Judge Lange wrote.
Most states that have abrogated the tort over the years have argued its misogynistic history undoes its protections, or that there are no longer any “affections” to alienate in these marriages. But some view the tort as a necessary defense of traditional marriage values.
In 1981, when the South Dakota Supreme Court affirmed a ruling awarding $50,000 to a jilted wife, Justice Frank Henderson wrote, “Because we happen to be living in a period of loose morals and frequent extra-marital involvements is no reason for a court to put its stamp of approval on this conduct; and I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the injured party.”
Simmons gave a more modern reflection on whether the law should remain on the books. “I really think it’s ultimately a judicial resources question,” he said. “Should we be [tying up] judges to hear these cases? I know it’s maybe bad behavior and painful, but don’t they have bigger issues to address?”
He added that previous repeal efforts have always been defeated.
A date for the jury trial has not yet been set.
In addition to South Dakota and North Carolina, Hawaii, Mississippi, New Mexico and Utah also still have laws regarding alienation of affection on the books.