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South Dakota court rules husband can seek damages against man over wife's affair

PIERRE, S.D. - The South Dakota Supreme Court ruled Thursday, Nov. 29, that the state's "alienation of affection" law entitles a Brown County man the opportunity to collect damages from a bar owner who had an affair with his wife.

"The concept that a spouse may claim consortium damages for harm caused to the marital relationship by the wrongful actions of another is firmly entrenched in our law and is a right exclusively 'growing out of the marriage relationship,' Justice Steven R. Jensen wrote in the 15-page opinion.

South Dakota is one of seven states — the others are Hawaii, Illinois, Mississippi, New Mexico, North Carolina and Utah — that allows an individual to seek damages if their partner has an extra-marital relationship.

The Supreme Court decision ruled on a case out of Frederick in northeastern South Dakota. Jerry Cedar sued Bruce Johnson in Brown County's 5th Judicial Circuit after his wife, Leslie, a waitress at the Titan Bar, had an affair with Johnson, the bar's owner, in the fall of 2015. The couple received a divorce the following summer.

Cedar, quoting his wife, said Johnson "worked his charm" on Leslie. But Johnson responded in the court trial that began in late September 2017 that Leslie had fallen out of love with Johnson. In fact, he presented testimony from Leslie that she'd had a sexual relationship with another man prior to her relationship with him.

Attorneys for Cedar dismissed this claim of an additional affair and provided photographs of the abandoned Frederick farmhouse where the alleged affair took place to show the difficulty of accessing the location.

The Alienation of Affection tort in South Dakota's civil courts emanates from SDCL 20-9-7, which reads "the gravamen of an action for alienation of affections is enticement."

Various court decisions over the years have upheld the tort, including 1987's Pankratz v. Miller, in which the court said, "The rights of personal relation forbid the enticement of a wife from her husband."