The Adventures of Mass. App. and the 700 Gold Coins

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The Massachusetts Appeals Court dove into foreign law and comity today, leaving "700 gold coins" in the possession of an Iranian divorcée.  The case is No. AC 16-P-1131 (Mass. App. Ct. Sept. 25, 2018).

Family law is not my area, but this decision from Mass. App. presented a modest if compelling problem in comparative law.  The divorce of husband and wife precipitated litigation in Iran over the dissolution of the marriage contract and also in Massachusetts over the division of property.  Central in the dispute were "700 gold coins," representing a mahr--a gift from groom to bride in Islamic marriage tradition.

I put "700 gold coins" in quotation marks because I don't think there need actually be 700 gold coins.  The mahr represents a quantifiable asset that is expected to grow in value with the duration of the marriage, thus, at least in theory, providing a divorcée with a time-commensurate award in case of separation.  According to the husband's testimony in Massachusetts court, in event of divorce, the wife may retain the entirety of the mahr, but may receive nothing more.

Despite that testimony, the husband contested award of the mahr in Iranian courts.  He lost at two levels, in trial court and intermediate appellate court in Tehran.  He told the court in Massachusetts that he was appealing to the Supreme Court of Iran.

Meanwhile the trial judge in Massachusetts divided the couple's property assets within U.S. jurisdiction more or less evenly, faithfully to Commonwealth law.  The husband showed that an inherited property in Tehran was wholly under the control of, and generating income for, the husband's mother, so the property was left with the husband as not entwined with the marriage.  But the court awarded the wife an equal share of the appreciation of the property over the course of the marriage.  Other assets were divided evenly.  The court regarded the mahr as an asset of the marriage, so divided it equally as well.  On that latter point, the appellate court reversed.

The principle of comity in international law demands that Massachusetts respect the judgment of a foreign court if it does not run contrary to domestic public policy.  The appellate court found no public policy imperative that would warrant disregard for the Iranian court ruling on the disposition of the mahr.  In the view of the Iranian lower courts, the mahr was the sole property of the wife.  Even if the Iran Supreme Court reverses on that question, no American public policy principle would be offended.  So the Massachusetts trial court abused its discretion in substituting its judgment for that of the Iranian courts on the mahr.  All other rulings of the trial court, including the ruling on the appreciation of the Tehran property, were affirmed.

The courts seemed able to resolve the question presented without expert testimony on Iranian law.  The appeals court relied on the treatment of mahr in a prior New Jersey decision.  Were it necessary, rule 44.1 of both federal and commonwealth rules of civil procedure allows the unusual step of expert evidence on questions of law.  That's fun, because legal scholars get to be experts in court, like experts from other disciplines.  Usually we're relegated to the sidelines.

The opinion was written by Associate Justice Sydney Hanlon, a graduate of Brown and Harvard Law.  Her skills include training for court personnel on dealing with domestic violence, training she has given in central and eastern Russia, as well as the United States, as part of rule-of-law work. 

The court's decision on comity comes at a curious time, with the United States tuning up sanctions on Iran and the EU negotiating with Iran to the express end of undermining U.S. sanctions.  Of course domestic claims playing out against the backdrop of U.S.-Iranian foreign policy is no new thing in American tort law.  See The Adventures of Tort-tort and the Frozen Assets.

'False claims of love': Mass. App. speaks from the heart for Valentine's Day

Just in time for Valentine's Day, the Massachusetts Court of Appeals rejected a divorcee's lawsuit for "false claims of love."

The plaintiff's eight claims were aptly characterized by the court as sounding in fraud, battery (i.e., contact upon improperly procured consent), infliction of emotional distress, and unjust enrichment.  All of these claims turned on misleading inducement to marry as a common, operative allegation.

Massachusetts by statute "abolished the common law actions for alienation of affection," "reflect[ing] the Legislature's public policy decision to no longer consider judicial remedy appropriate for what is only 'an ordinary broken heart.'"  Christopher Robinette wrote succinctly about the "heart balm torts"—alienation of affections, criminal conversation, seduction, and breach of promise to marry—in November at Tortsprof Blog.  Reading between the lines of the law, the court explained that legislators meant to preclude any cause of action that would require "'explor[ing] the minds of' consenting partners" (quoting precedent).

This case was not about failure to marry, but about marriage under allegedly false pretenses.  Same difference, the court held, with respect to claims of fraud or misrepresentation: plaintiff's "artful pleadings fail to hide the fact that these claims, based on events that occurred prior to the marriage, are precluded ...."  The same result controlled battery, as the consent analysis plainly would defy the inferred legislative intent.

As to IIED, the plaintiff could not meet the threshold of "extreme and outrageous," neither through allegation of an adulterous affair, even if calculated to inflict emotional injury, nor through failure to disclose "concealment of past sexual or romantic history."  Massachusetts courts at least in theory recognize a cause of action for negligent infliction of emotional distress (NIED)--the truly pure case of it is far rarer than recitation of the theory--but found the record "bereft of physical harm manifested by objective symptomatology."  On both points, one must recall Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998), per the Hon. Susan Weber Wright.  This case also well exemplifies why NIED is not sound doctrine, a point the Supreme Judicial Court might ought revisit one day.

On unjust enrichment and related theories, the court concluded that any unjustness was predicated on the earlier rejected fraud, and otherwise, the plaintiff was in no way of feeble mind.

The court summed up: "[N]ot all human actions in the context of the dissolution of a marriage have an avenue for legal recourse, no matter how much anger, sorrow, or anxiety they cause." Broadened to all affairs of the heart, the conclusion well restates essential tort policy, lest we become the caricature of the litigious society.

The case is Shea v. Cameron, No. 16-P-1479 (Mass. Ct. App. Feb. 9, 2018), per Agnes, Sacks, and Lemire, JJ.