By Phillip Bantz
The Daily Record Newswire
RALEIGH — News that a cuckolded Charlotte man was suing an online dating site for helping his wife cheat spread through state and national media last month like gossip through a cocktail party — hardly surprising considering that the case is as prurient as it is novel.
But family law attorneys are not giving the suit against AshleyMadison.com very good odds for survivability. And even the lawyer behind the action expects that it will most likely end with a whimper rather than a precedent-setting climax in the appellate courts.
That attorney, Christopher D. Johnson of Wilmington, represents Robert Schindler, who accuses Ashley Madison of alienation of affection for leading his wife into the arms — and bed — of Eleazar Montemayor, also a defendant in the suit.
The website is geared toward hooking up cheating spouses with paramours and tells users, “Life is short. Have an affair.”
If he has any chance at success, Johnson must get around a 2009 legislative amendment to the law which bars jilted spouses from suing businesses for playing a role in extramarital affairs.
He contends that the amendment does not apply because it was enacted two years after Schindler’s wife, now his ex, used the Ashley Madison website to find someone with whom she could cheat.
“If this act happened today, there would be nothing we could do,” Johnson said. He asserts that Ashley Madison can be held liable for ruining his client’s marriage because cheating is its sole business.
“I certainly hope and think that we will have some success against them,” he said.
But Winston-Salem lawyer John C. Vermitsky, a partner at Morrow, Porter, Vermitsky & Fowler who has challenged the constitutionality of the state’s so-called heart balm torts, said he believes the suit was constructed on shaky ground because Ashley Madison is a “vehicle to cheat rather than cheating itself.”
“There’s a difference between a website and an individual going in and seducing another person’s wife or husband,” he said. “It doesn’t seem to me that this is very likely to be successful.”
G. Gray Wilson of Wilson, Helms & Cartledge in Winston-Salem, a family lawyer who has gone up against Vermitsky while representing a jilted spouse in a suit against a homewrecker, also doubts the merits of the action against Ashley Madison.
“It’s one thing to act as the facilitator, it’s another thing to be the perpetrator,” he said. “You can’t sue somebody for aiding and abetting alienation of affection. That claim doesn’t exist in this state. I would think he [Schindler] has a tough row to hoe.”
The suit also raises free speech issues, said A. Doyle Early Jr., a High Point lawyer and former chair of the N.C. Bar Association’s family law section. He has called for the abolishment of the alienation of affection law and its companion tort of criminal conversation, which refers to the physical act of adultery.
“The conduct may be despicable, but that’s about two thirds of what’s on the Internet,” he said. Out of necessity, Johnson temporarily dropped Ashley Madison as a defendant because he had been unable to track down and properly serve the Toronto-based company after filing suit in August 2012.
The case had landed on Mecklenburg County Superior Court’s cleanup calendar and a judge was poised to dismiss the site from the action.
Instead of allowing that to happen, Johnson sought a voluntary dismissal, then turned around and refiled the complaint against Ashley Madison, bringing the company back into the suit.
Johnson said he ultimately had to serve the company by publication and, judging by its silence thus far, he’s not holding his breath for an answer.
“They have never responded,” he said. “I have a feeling that this will just be an issue of default judgment and that’s it and we’ll probably never hear from them.”
The site’s founder, Noel Biderman, a former sports attorney, apparently is aware of the suit. He wrote in an email to the Charlotte Observer that he thought “it would be an incredibly slippery slope to attempt to espouse blame to all the technology and inanimate objects that were utilized in an affair.”
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