¶1specially concurring:
¶2I specially concur because I believe that the cause of action of alienation of affections, as pled in this cause, was dischargeable in bankruptcy as a matter of law. Therefore, I do not believe that it was necessary to address whether summary judgment was correctly granted on the merits.
¶3The majority does an admirable job of explaining that debts are not dischargeable if they are “for willful and malicious injury by the debtor.” The majority expounds on the federal statutory and case law and the definitions of willful and malicious, then compares these definitions to the elements of the Illinois cause of action of alienation of affections.
¶4However, the majority does not address the method of pleading alienation of affections in the alternative, i.e., with or without the “gist of malice.” According to early Illinois cases regarding alienation of affections, the cause could be pled with or without the “gist of malice.” If the trier of fact found malice, the defendant could be kept in jail until satisfaction of the judgment; if not, the defendant could not be incarcerated. See generally In re Petition of Monaco, 287 Ill. App. 540 (1936).
¶5I believe that the majority should have first considered whether the pleading alleged malice. If the majority had determined that the pleading alleged malice, then the majority was correct in addressing the grant of the summary judgment. However, a fair reading of the complaint will readily establish that malice was not alleged. Therefore, regardless of the merits of her claim, plaintiff could not prevent discharge. By recognizing the existence of the alternative methods of pleading alienation of affections (with or without malice) and then reviewing the complaint for any allegations of malice in this case, the majority should have determined that the complaint filed did not plead malice and that, as a matter of law, the debt was dischargeable. See In re Petition of Blacklidge, 359 Ill. 482 (1935). In Blacklidge, our supreme court defined malice and pointed out:
“The ‘gist of the action’ constitutes the essential ground or object of a suit, without which there is not a cause of action. [Citations.] Malice may be made the gist of the action if properly pleaded. [Citations.] Whether malice is the gist of a particular action is to be determined from the charges made in the declaration. [Citations.]” Blacklidge, 359 Ill. at 489.
¶6Even if there were a judgment entered in favor of plaintiff, it would not contain any indication that malice was the “gist of the action.” Thus, it would have been the type of claim that is discharged in bankruptcy. The trial court was correct in determining that “the claim was discharged in bankruptcy” based upon the pleadings. Furthermore, based upon the pleadings, it was unnecessary for the trial court or this court to determine if plaintiff failed to present sufficient material facts to preclude summary judgment on the merits of her underlying claim.