Photo Credit: https://knowyourmeme.com/photos/1287555-distracted-boyfriend (last visited Nov. 10, 2019).
By: C. Jordan Godwin
Member, American Journal of Trial Advocacy
Not every story has a happy ending, especially when one spouse finds the other in bed with a stranger. One North Carolina man, Kevin Howard (“Howard”), understands that unfortunate truth better than most, having recently made national headlines for suing his ex-wife’s lover for alienation of affections.[1]
Howard believed that he and his then-wife were happily married for twelve years until he discovered that she was having an affair.[2] A private investigator that Howard hired uncovered that Howard’s wife was romantically involved with one of her co-workers; the co-worker turned lover was a family friend that would often share meals at Howard’s home.[3] Howard sued his ex-wife’s lover not for the money but because of his strong belief in the sanctity of marriage.[4] Regardless of his intentions behind the suit, Howard’s bench trial ended with Pitt County Superior Court Judge Quentin Sumner issuing an award of $750,000.00 in Howard’s favor.[5]
Howard brought his lawsuit pursuant to North Carolina’s common-law tort of alienation of affections.[6] While many states recognize alienation of affections claims as a remedy to the harm that extra-marital affairs cause,[7] under North Carolina law, a plaintiff claiming damages for alienation of affections must prove three things:
[t]hat [the plaintiff and their ex-spouse] were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; [and] (3) that the wrongful and malicious acts of the defendant[] produced and brought about the loss and alienation of such love and affection.[8]
A plaintiff may only recover for alienation of affection against a natural person, and the plaintiff must file suit within three years of the defendant’s last act giving rise to the claim.[9] To satisfy his burden in alienation of affections actions, a plaintiff must produce evidence of a valid marriage and show that the marriage contained “marital love and affection”; but, “the plaintiff need not ‘prove that [the] spouse had no affection for anyone else or that [the] marriage was previously one of “untroubled bliss.”’”[10]
North Carolina’s courts routinely award damages to scorned plaintiffs under the alienation of affections tort.[11] For example, North Carolina’s Court of Appeals affirmed, in Heller v. Somdahl, a jury’s award of compensatory and punitive damages to a plaintiff for alienation of affections.[12] There, the plaintiff alleged that the defendant’s “malicious and intentional acts” directly contributed to a loss of affections within the plaintiff’s marriage.[13] The court addressed whether the plaintiff satisfied his burden through testimony about kissing his wife after work, that the family was “happy,” and how often the plaintiff and his ex-wife were intimate.[14] This testimony satisfied the first necessary element.[15] The court noted that a plaintiff proves the second element, destruction, by “showing ‘interference with one spouse’s mental attitude . . . and the conjugal kindness.’”[16] Heller’s plaintiff satisfied this element through testifying about the state of the marriage after his wife’s affair.[17] Finally, the plaintiff satisfied the third element of causation by testifying about conversations he had with his ex-wife’s lover, namely that the defendant told the plaintiff that it was “none of [his] business what his wife did” and “[your wife is] a grown woman.”[18] Ultimately, the plaintiff prevailed because the evidence demonstrated that plaintiff’s marriage was, at one point, happy and healthy with “genuine love and affection,” those affections were destroyed when plaintiff’s wife “retreated physically and emotionally from the relationship,” and that the defendant caused the destruction.[19]
Likewise, North Carolina law cemented the alienation of affections tort’s constitutionality while routinely providing for damages awards. North Carolina’s Court of Appeals recently addressed this issue in Malecek v. Williams by explicitly “reject[ing] [a] facial constitutional challenge.”[20] The court said “[c]laims for alienation of affection[s] . . . are designed to prevent and remedy personal injury, and protect [marriage’s] promise of monogamy.”[21] Under North Carolina law, alienation of affections’s purpose, as stated above, distinguishes it from the “discriminatory sodomy law at issue in Lawrence v. Texas” because the Texas law was “not supported by any legitimate state interest.”[22] Moreover, because alienation of affections laws “seek[s] to prevent personal and societal harms without regard to the content of the intimate . . . relationship,” the mere possibility that this tort burdens protected speech does not render the law unconstitutional.[23] For that reason, in Malecek, the Court of Appeals reversed the trial court’s granting of the defendant’s constitutionally-based motion to dismiss because, for the reasons discussed above, alienation of affections is not unconstitutional.[24]
To successfully bring an alienation of affections claim, a plaintiff must demonstrate that, at the time of the alleged harm, they were “happily married, and that a genuine love and affection existed between them;” thus, a plaintiff’s claim dies if they fail to prove that they were “happily married” and that their marriage held “genuine love and affection,”[25] as discussed in Rodriguez v. Lemus.[26] There, a defendant appealed a $65,000.00 award to the plaintiff for alienation of affections on the grounds that the plaintiff failed to present evidence sufficient to demonstrate she was married at the time of the extra-marital affair.[27] Plaintiff married her ex-husband in December of 2007, and the defendant, a family friend at the time, participated in their wedding ceremony.[28] Plaintiff testified at trial that, by 2011, she noticed her marital relationship change; as a result, plaintiff went through her then-husband’s phone and found substantial communication between her then-husband and the defendant.[29] Plaintiff later discovered that her then-husband was staying at a hotel, when he was supposed to be at work, with an “unidentified woman.”[30] Plaintiff and her then-husband separated in 2012, but, after plaintiff delivered a child, the couple discussed reconciliation.[31] Defendant argued that the damages award should be set aside because the evidence at trial tended to show that any extra-marital sexual contact occurred after the plaintiff separated from her husband.[32] Defendant’s appeal failed because, under North Carolina law, “sexual conduct occurring after a married couple has separated, but before their divorce, is sufficient to support claims for . . . alienation of affection[s].”[33]
Alienation of affections claims offer plaintiffs a remedy for the loss of their marriage.[34] Although no amount of money can replace the loss of “genuine love and affection,” and even though his ex-wife remained romantically involved with the defendant after the suit, Kevin Howard’s lawsuit left him with $750,000.00 that he did not previously have.[35] Lawsuits like Howard’s are constitutional and often result in favorable verdicts for plaintiffs.[36] Not every story has a happy ending, but for many plaintiffs, alienation of affections suits help them start over after marital betrayal.
[1] Christina Maxouris & Leah Amelash, A North Carolina Man Just Won a $750,000 Lawsuit After Suing His Wife’s Lover, CNN (Oct. 2, 2019, 10:26 PM), https://www.cnn.com/2019/10/02/us/alienation-of-affection-laws-north-carolina-lawsuit-trnd/index.html.
[2] Id.
[3] Id.
[4] Bill Cresenzo, Jilted Husband Wins $750K from Ex-Wife’s Boyfriend, N.C. Law. Wkly. (Oct. 15, 2019), https://nclawyersweekly.com/2019/10/15/jilted-husband-wins-750k-from-ex-wifes-boyfriend/.
[5] Id.
[6] Id.; see also Litchfield v. Cox, 146 S.E.2d 641, 641 (N.C. 1966) (finding that there are three elements that a plaintiff must prove in order to establish a common-law claim for alienation).
[7] Hunt v. Chang, 594 P.2d 118, 119 (Haw. 1979) (discussing alienation of affection claim under Hawaii law); Hernandez v. Dart, 635 F. Supp. 2d 798, 800 (N.D. Ill. 2009) (discussing and applying Illinois alienation of affection law); Kirk v. Koch, 607 So. 2d 1220, 1222 (Miss. 1992) (discussing alienation of affection claim under Mississippi law); Thornburg v. Fed. Express Corp., 62 S.W.3d 421, 422 (Mo. Ct. App. 2001) (discussing alienation of affection claim under Missouri law); USAA Prop. & Cas. Ins. Co. v. Rowland, 435 S.E.2d 879, 880 (S.C. Ct. App. 1993) (discussing alienation of affection claim under South Carolina law); Veeder v. Kennedy, 589 N.W.2d 610, 613 (S.D. 1999) (discussing alienation of affection claim under South Dakota law); Hodges v. Howell, 4 P.3d 803, 804 (Utah Ct. App. 2000) (discussing alienation of affection claim under Utah law).
[8] McCutchen v. McCutchen, 624 S.E.2d 620, 623 (N.C. 2006) (internal quotations omitted) (quoting Litchfield, 146 S.E.2d at 641); see also N.C. Gen. Stat. § 52-13(a) (2018) (stating “[n]o act of the defendant shall give rise to a cause of action for alienation of affection . . . that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either . . . spouse that the physical separation remain permanent”).
[9] N.C. Gen. Stat. § 52-13(b)-(c) (2018).
[10] McCutchen, 624 S.E.2d at 623 (internal quotations omitted) (quoting Brown v. Hurley, 477 S.E.2d 234, 237 (N.C. Ct. App. 1996)).
[11] See Verdict Form, Jenicek v. Keavney, No. 2016-CVS-003879, 2017 WL 8683015 (N.C. Dist. Ct. July 12, 2017) (awarding plaintiff $108,821.00 for alienation of affection and criminal conversion); Verdict Form, Shackelford v. Lundquist, No. 07-CVD-12047, 2010 WL 5570514 (N.C. Super. Ct. Mar. 1, 2010) (awarding plaintiff $9,000,000.00 for alienation of affection); Verdict Form, Patterson v. Basurto, No. 08-CVS-191, 2009 WL 6705431 (N.C. Super. Ct. May 31, 2009) (awarding plaintiff $500,000.00 for alienation of affection); Verdict Form, Wirth v. Henson, No. 04-CVS-0140884, 2006 WL 4469975 (N.C. Super. Ct. Mar. 1, 2006) (awarding plaintiff $1,500,000.00 for alienation of affection); Verdict Form, Sitterson v. Miller, No. 04-CVS-000112, 2005 WL 4130953 (N.C. Super. Ct. May 1, 2005) (awarding plaintiff $750,000.00 for alienation of affection).
[12] 696 S.E.2d 857, 860 (N.C. Ct. App. 2010).
[13] Id. at 859-60.
[14] Id. at 861.
[15] Id. at 862.
[16] Id. at 860-61 (quoting Darnell v. Rupplin, 371 S.E.2d 743, 744 (N.C. Ct. App. 1988)).
[17] Id. at 861.
[18] Heller, 696 S.E.2d at 861.
[19] Id. at 862.
[20] 804 S.E.2d 592, 594 (N.C. Ct. App. 2017).
[21] Id.
[22] Id.; 539 U.S. 558, 564 (2003).
[23] Malecek, 539 U.S. at 594 (emphasis added) (referencing U.S. v. O’Brien, 391 U.S. 367 (1968)).
[24] Malecek, 539 U.S. at 599.
[25] McCutchen v. McCutchen, 624 S.E.2d 620, 623 (N.C. 2006) (internal quotations omitted) (quoting Litchfield v. Cox, 146 S.E.2d 641, 641 (N.C. 1966)).
[26] 810 S.E.2d 1, 5 (N.C. Ct. App. 2018).
[27] Id. at 2.
[28] Id.
[29] Id.
[30] Id.
[31] Id. at 3.
[32] Rodriguez, 810 S.E.2d at 4; N.C. Gen. Stat. § 52-13(a) (2018).
[33] Id.
[34] Malecek, 804 S.E.2d at 594.
[35] Cresenzo, supra note 5, at 2.
[36] Malecek, 804 S.E.2d at 594; see also supra text accompanying note 8.
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