Beavers v. McMican

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-547

No. COA21-85

Filed 16 August 2022

Wake County, No. 18 CVS 15139

DAVID BEAVERS, Plaintiff,

v.

JOHN MCMICAN, Defendant.

Appeal by Plaintiff from an order entered 14 October 2020 by Judge Keith O.

Gregory in Wake County Superior Court. Heard in the Court of Appeals 5 October

2021.

Matheson and Associates, PLLC, by John R. Szymankiewicz, for plaintiff-
appellant.

Shannon Poore for defendant-appellee.

MURPHY, Judge.

¶1 We will not consider documents on appeal that were not before the trial court

for its consideration of summary judgment. Here, although both parties at a hearing

verbally referenced the contents of two depositions, the certifications of which were

pending, we do not consider the depositions in determining whether the trial court

erred because they were not proffered to or considered by the trial court.

¶2 A trial court errs in granting a movant’s motion for summary judgment where

there exists evidence on the record that, when viewed in the light most favorable to
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the nonmoving party, could support each element of the alleged offense. With respect

to alienation of affection and criminal conversation claims, acts by a defendant

occurring after a plaintiff and former spouse have permanently separated may only

be used to satisfy that plaintiff’s burden of production for purposes of summary

judgment insofar as they corroborate acts that occurred prior to separation. Here,

where acts by an unknown party satisfied Plaintiff’s burden of production with

respect to the final elements of alienation of affection and criminal conversation and

other evidence—including, in part, post-separation conduct—tended to show the

unknown party was Defendant, Plaintiff satisfied his burden of production.

Accordingly, the trial court erred in granting Defendant’s motion for summary

judgment.

BACKGROUND

¶3 This action was initiated on 13 December 2018 when Plaintiff David Beavers

filed a civil complaint in Wake County Superior Court asserting claims for alienation

of affection and criminal conversation against his ex-wife’s alleged paramour,

Defendant John McMican. The relevant facts of this case, detailed below, are not in

dispute.

¶4 Plaintiff and his ex-wife, Alison Beavers, married on 23 October 2004. On 18

January 2016, Plaintiff discovered texts on Alison’s phone in which she had sent nude

pictures to a person identified as “Bestie.” Alongside the pictures, Alison and “Bestie”
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had exchanged messages appearing to reference an instance of sexual intercourse

that had occurred prior to the exchange of messages and pictures. At the time,

Plaintiff did not look at the number associated with the contact information or

otherwise take steps to discover the identity of “Bestie.”

¶5 Upon discovering the exchange, Plaintiff briefly confronted Alison, then left his

and Alison’s home to stay with his parents. Upon Plaintiff’s return several days later,

he and Alison had a conversation about the affair. Alison explained to Plaintiff that

she had engaged in sexual acts with the person identified as “Bestie” but that the two

did not have sexual intercourse. Alison further professed that her paramour’s name

was “Dustin,” one of her co-workers.

¶6 Several more weeks passed, and Plaintiff, skeptical of Alison’s story during the

first conversation, accused Alison of engaging in sexual intercourse with another

man. Alison, in response, told Plaintiff she had engaged in sexual intercourse with

someone from her workplace; however, she did not specify it was the person she had

previously identified as “Dustin.” Plaintiff never discovered Dustin’s identity, and he

suspected that, based on the absence of any “Dustin” in Alison’s contacts, “Dustin”

was a pseudonym. Plaintiff and Alison permanently separated on 16 December 2016.

¶7 Three and one-half months later, on 1 April 2017, Alison openly began dating

Defendant, one of her co-workers. The two had known one another through work

since the Summer of 2011. The Record indicates they had a close relationship,
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exchanging ninety-eight texts and calls in October of 2016 alone, as well as

interacting via phone and Facebook numerous times outside of that month. While

the two admittedly became both romantically and sexually involved upon beginning

their relationship, no direct evidence of romantic involvement between Alison and

Defendant exists before the start of their relationship in April 2017, and both have

expressly disavowed being romantically involved prior to that time.

¶8 On 13 December 2018, Plaintiff sued Defendant on theories of alienation of

affection and criminal conversation. Defendant, in turn, filed a Motion for Summary

Judgment, arguing Plaintiff presented insufficient evidence of at least one element of

both offenses.1 The trial court conducted a hearing on Defendant’s motion on 17

August 2020, during which both parties referenced, without objection, recent

depositions of Alison and Defendant’s ex-wife, Jessica McMican. However, neither

deposition was certified until 20 August 2020, three days later. The trial court

entered an order on 12 October 2020 granting Defendant’s Motion for Summary

Judgment, and Plaintiff timely appealed.

¶9 On appeal, Plaintiff submitted a supplement pursuant to Rule 11(c) of the

Rules of Appellate Procedure containing, inter alia, the depositions of Alison and

Jessica discussed by counsel during the hearing. We entered an order to the trial

1 The primarily disputed elements of both offenses are discussed in the analysis
section of this opinion. See infra at ¶¶ 18-20, 25.
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court on 23 November 2021 inquiring which, if either, of the depositions the trial

court considered in granting Defendant’s Motion for Summary Judgment; and, in

response, the trial court filed an Amended Order Granting Defendant’s Motion for

Summary Judgment on 3 March 2022 confirming it considered neither of the two

depositions.

ANALYSIS

¶ 10 On appeal, Plaintiff contends the trial court erred in granting Defendant’s

Motion for Summary Judgement with respect to his criminal conversation and

alienation of affection claims. First, however, Defendant argues that the documents

in Plaintiff’s Rule 11(c) supplement are not properly before us. Accordingly, we first

address whether Plaintiff’s proffered supplement is properly before us under Rule

11(c), then we address whether the trial court erred in granting Defendant’s Motion

for Summary Judgment.

A. Rule 11(c) Supplement

¶ 11 Defendant contends that, under Rule 11(c) of our Rules of Appellate Procedure,

“[t]he purported evidence contained in the Rule 11(c) supplement should not be

considered on appeal as some evidence was not presented to the trial court for

consideration . . . and other evidence contained in the supplement is irrelevant.”

¶ 12 Rule 11(c) states, in relevant part, as follows:
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Amendments or objections to the proposed record on appeal
shall be set out in a separate paper and shall specify any
item(s) for which an objection is based on the contention
that the item was not filed, served, submitted for
consideration, admitted, or made the subject of an offer of
proof, or that the content of a statement or narration is
factually inaccurate.

....

If a party requests that an item be included in the record
on appeal but not all other parties to the appeal agree to its
inclusion, then that item shall not be included in the
printed record on appeal, but shall be filed by the appellant
with the printed record on appeal in a volume captioned
“Rule 11(c) Supplement to the Printed Record on Appeal,”
along with any verbatim transcripts, narrations of
proceedings, documentary exhibits, and other items that
are filed pursuant to these rules; provided that any item
not filed, served, submitted for consideration, or admitted,
or for which no offer of proof was tendered, shall not be
included.

N.C. R. App. P. 11 (2021) (emphasis added); see also Hoisington v. ZT-Winston-Salem

Assocs., 133 N.C. App. 485, 490, 516 S.E.2d 176, 180 (1999) (remarking that, when

reviewing a trial court’s decision to grant or deny summary judgment, “[w]e may only

consider the pleadings and other filings that were before the trial court”), appeal

dismissed, 351 N.C. 342, 525 S.E.2d 173 (2000).

¶ 13 Here, the trial court conducted its hearing on Defendant’s Motion for Summary

Judgment on 17 August 2020. The Rule 11(c) supplement contains two depositions

that were not certified until 20 August 2020, three days later. The trial court
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confirmed in its Amended Order Granting Defendant’s Motion for Summary

Judgment that it considered neither of these depositions when evaluating whether to

grant Defendant’s Motion for Summary Judgment. Accordingly, neither deposition

informs our review on appeal.

¶ 14 As to the remaining arguments concerning the Rule 11(c) supplement’s role in

our review, Defendant’s contentions concern the persuasive relevance of the evidence

to our determination, not whether the evidence is properly before us on appeal. As

there exist no other indications in the Record or in the parties’ arguments that our

considering the remainder of the evidence in Plaintiff’s Rule 11(c) supplement is

improper, it will inform our review insofar as it is relevant.

B. Defendant’s Motion for Summary Judgment

¶ 15 Rule 56(c) of our Rules of Civil Procedure provides that summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that any party is entitled to a judgment as a matter of law.”

N.C.G.S. § 1A-1, Rule 56 (2021). “Summary judgment is appropriate when the

moving party establishes the lack of any triable issue of fact”; and, in determining

whether any such triable issue exists, “[a]ll facts asserted by the nonmoving party

are taken as true and viewed in the light most favorable to that party.” Wells Fargo

Bank, N.A. v. Stocks, 378 N.C. 342, 2021-NCSC-90, ¶ 13 (marks and citations
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omitted).

¶ 16 Despite its frequent invocation, “[s]ummary judgment ‘is an extreme remedy

and should be awarded only where the truth is quite clear.’” Willis v. Town of

Beaufort, 143 N.C. App. 106, 108, 544 S.E.2d 600, 603 (quoting Lee v. Shor, 10 N.C.

App. 231, 233, 178 S.E.2d 101, 103 (1970)), disc. rev. denied, 354 N.C. 371, 555 S.E.2d

280 (2001). It should only be granted in cases where a court is confident that “no

person shall be deprived of a trial on a genuine disputed factual issue.” DeWitt v.

Eveready Battery Co., 355 N.C. 672, 682, 565 S.E.2d 140, 146 (2002) (citations

omitted). “[T]he fundamental purpose of a summary judgment motion . . . is to allow

a litigant to ‘test’ the extent to which the allegations in which a particular claim has

been couched have adequate evidentiary support.” Prouse v. Bituminous Cas. Corp.,

222 N.C. App. 111, 116, 730 S.E.2d 239, 242-43 (2012). Accordingly, courts may grant

a motion for summary judgment only in those instances where a party

meets the burden (1) of proving an essential element of the
opposing party’s claim is nonexistent, or (2) of showing
through discovery that the opposing party cannot produce
evidence to support an essential element of his or her
claim.

Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations and

internal quotation marks omitted). “Our standard of review of an appeal from

summary judgment is de novo[.]” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d

572, 576 (2008).
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¶ 17 Here, Plaintiff’s complaint alleged both alienation of affection and criminal

conversation. We address both in turn.

¶ 18 In order to establish a claim for alienation of affection, a plaintiff must show

that “(1) there was a marriage with love and affection existing between the [plaintiff]

and [his or her spouse]; (2) that love and affection was alienated; and (3) the malicious

acts of the defendant produced the loss of that love and affection.” Nunn v. Allen, 154

N.C. App. 523, 533, 574 S.E.2d 35, 41-42 (2002) (marks and citations omitted), disc.

rev. denied, 356 N.C. 675, 577 S.E.2d 630 (2003). As there is no meaningful

contention that evidence sufficient to survive a motion for summary judgment did not

exist with respect to the first two elements,2 we devote the bulk of our analysis to

2At minimum, Plaintiff met his burden of production with respect to the first two
elements through his verified complaint:

4. Prior to [18 January 2016], Plaintiff and [Alison] had a good
and loving marriage. Plaintiff was a dutiful spouse and provided
a comfortable home and environment for his wife.

....

14. . . . [T]he genuine love and affection that existed between []
Plaintiff and [Alison] was lost and destroyed . . . .

This verified complaint qualifies as an affidavit for production purposes. See Page v. Sloan,
281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972) (citations omitted) (“A verified complaint may
be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as
would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to
testify to the matters stated therein.”).
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whether “the malicious acts of [] [D]efendant produced the loss of that love and

affection.” Id. at 533, 574 S.E.2d at 42.

¶ 19 As to the third element of alienation of affection, “[a] malicious act has been

loosely defined to include any intentional conduct that would probably affect the

marital relationship.” Rodriguez v. Lemus, 257 N.C. App. 493, 495, 810 S.E.2d 1, 3

(citations omitted), disc. rev. denied, 371 N.C. 447, 817 S.E.2d 201 (2018). However,

the exact definitional contours of a “malicious act” are irrelevant for purposes of this

appeal3 because “[m]alice is conclusively presumed by a showing that the defendant

engaged in sexual intercourse with the plaintiff’s spouse.” Id. at 495-96, 810 S.E.2d

at 3. As the evidence supporting the first element of alienation of affection in this

case consists, in primary part, of a series of text messages indicating Alison engaged

in sexual intercourse with “Bestie,” an admission by Alison that she engaged in sexual

acts with “Bestie” and that “Bestie” was a man named “Dustin,” and a separate

admission by Alison indicating she had engaged in sexual intercourse with an

unnamed person, whether the behavior at issue qualified as a “malicious act” would

be conclusively presumed in the affirmative, provided sufficient evidence exists that

3 Setting aside evidence concerning extramarital sex acts, Plaintiff’s proffered
evidence of Defendant’s pre-separation acts consisted entirely of phone and Facebook contact,
the specifics of which are unknown. Whatever subjective insecurity this behavior may have
induced in Plaintiff, we do not believe evidence of this type of contact, without more, “would
probably affect the marital relationship” so as to be relevant to our alienation of affection
analysis. Id.
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any paramour referenced was actually Defendant.

¶ 20 As Plaintiff testified during his deposition, he relied primarily on “put[ting]

two and two together” in support of his contention that one or more of the parties

sexually involved with Alison prior to their separation was actually Defendant.

Evidence supporting this identification includes phone and Facebook contact between

Alison and Defendant during her and Plaintiff’s marriage, the existence of their

friendship at work, and the fact that they openly had a romantic and sexual

relationship less than four months from the separation date of Alison and Plaintiff’s

more than decade-long marriage. Plaintiff argues this evidence is sufficient to have

survived Defendant’s Motion to Dismiss; however, Defendant argues this evidence is

insufficient for a jury to find that he engaged in sexual intercourse with Alison prior

to their separation.

¶ 21 At the heart of the parties’ arguments lies a disagreement about the proper

role of evidence concerning post-separation conduct with respect to alienation of

affection claims; and, more specifically, the scope of our recent holding in Rodriguez

v. Lemus. In Rodriguez, we held that, in cases involving alienation of affection,

“evidence of post-separation conduct may be used to corroborate evidence of pre-

separation conduct and can support claims for alienation of affection and criminal

conversation, so long as the evidence of pre-separation conduct is sufficient to give

rise to more than mere conjecture.” Id. at 498, 810 S.E.2d at 5. In that case, which
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involved a challenge to the sufficiency of the evidence to support a trial court’s

findings of fact during a bench trial,4 id. at 495, 810 S.E.2d at 3, we held the evidence

was sufficient to support the trial court’s findings where

[the] [p]laintiff’s evidence of pre-separation conduct
included[] (1) phone records showing 120 contacts between
[the] [d]efendant and [the] [p]laintiff’s spouse in a one-
month period, all at times when [the plaintiff’s spouse] was
away from home; (2) two hotel charges on [the spouse’s]
credit card bill; (3) a third hotel receipt dated 21 March
2012 and information from the third hotel that [the spouse]
was there with a woman; and (4) social media postings by
[the] [d]efendant and [the plaintiff’s spouse] which [the]
[p]laintiff interpreted as their initials used as a code
between them.

Id. at 498, 810 S.E.2d at 5. Plaintiff argues that, under Rodriguez, Defendant’s

established, post-separation sexual relationship with Alison properly demonstrates

4 While we are mindful of the discrepancy in scrutiny between our review of a trial
court’s grant or denial of summary judgment—which is subject to de novo review—and our
review of a trial court’s findings of fact on appeal from a bench trial—which we review for
competent evidence on the record—the two are, for purposes of our analysis, functionally
interchangeable in this case. See id. at 495, 810 S.E.2d at 3 (citations omitted) (“[W]e are
strictly limited to determining whether the trial judge’s underlying findings of fact are
supported by competent evidence . . . .”); Jones, 362 N.C. at 573, 669 S.E.2d at 576 (“Our
standard of review of an appeal from summary judgment is de novo[.]”). The nature of our
review of a trial court’s grant or denial of summary judgment, though de novo, requires us to
view the nonmovant’s evidence “in the light most favorable to that party,” examining only
whether they have support on the record. Stocks, 378 N.C. 342, 2021-NCSC-90, ¶ 13 (marks
and citations omitted). Where, as in Rodriguez, the trial court finds a plaintiff’s evidence
persuasive during a bench trial, our review for competent evidence on the record is nearly
identical to our review of whether a plaintiff met her burden of production for purposes of
summary judgment. Accordingly, our analysis in Rodriguez directly informs our analysis in
this case despite the nominal differences in procedural posture.
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Defendant was involved in the sexual encounters referenced in Alison’s messages and

confessions. Meanwhile, Defendant argues that the pre-separation conduct amounts

to “mere conjecture,” rendering Defendant’s post-separation conduct irrelevant for

purposes of whether Plaintiff’s evidence was sufficient to withstand a motion for

summary judgment. Id.

¶ 22 Defendant’s argument implicitly—and incorrectly—narrows the scope of our

holding in Rodriguez. The Rodriguez principle was articulated in response to the

question of whether factfinders could consider evidence of post-separation at all after

our General Assembly enacted N.C.G.S. § 52-13, which provides that “[n]o act of [a]

defendant shall give rise to a cause of action for alienation of affection or criminal

conversation that occurs after the plaintiff and the plaintiff’s spouse physically

separate with the intent of either the plaintiff or plaintiff’s spouse that the physical

separation remain permanent.” N.C.G.S. § 52-13(a) (2021); see also id. at 497, 810

S.E.2d at 4 (“[C]laims of alienation of affection and criminal conversation arising after

the effective date of [N.C.G.S. §] 52-13 cannot be sustained without evidence of pre-

separation acts satisfying the elements of these respective torts. What is less clear is

whether evidence of post-separation acts is admissible to support an inference of pre-

separation acts constituting alienation of affection or criminal conversation.”). In

other words, N.C.G.S. § 52-13 prevents defendants in cases involving criminal

conversation and alienation of affection from being held liable for acts taking place
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after two spouses have separated, and Rodriguez effectuates that policy by ensuring

that, if a factfinder considers evidence of post-separation conduct, it does so only

insofar as it contextualizes pre-separation conduct.

¶ 23 Defendant, in arguing post-separation conduct cannot inform whether

Plaintiff’s evidence was sufficient to withstand his Motion for Summary Judgment,

implies that, under Rodriguez, corroborating evidence is only available when

Defendant has already been identified as the actor in one or more independently

sufficient instances of pre-separation conduct. No such limitation exists. Plaintiff

presented evidence that his ex-wife engaged in sexual intercourse with at least one

third party. To hold that Defendant’s post-separation conduct with Plaintiff’s ex-wife

cannot inform the sufficiency of Plaintiff’s evidence insofar as it indicates Defendant

may have been “Bestie”—or, if a different person, the man she referenced in the

second conversation—would ignore the reality that direct, contemporaneous evidence

of adultery is almost never available. See In re Est. of Trogdon, 330 N.C. 143, 148,

409 S.E.2d 897, 900 (1991) (“Adultery is nearly always proved by circumstantial

evidence.”). Accordingly, to the extent Plaintiff’s evidence of Defendant’s post-

separation conduct informs our understanding of the identities of “Bestie,” “Dustin,”

or another professed paramour, it properly informs our review of the trial court’s

Amended Order Granting Defendant’s Motion for Summary Judgment.

¶ 24 Having clarified the scope of Rodriguez, we must now determine whether
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Plaintiff presented evidence which, when taken as true and viewed in the light most

favorable to him, could demonstrate that “the malicious acts of [] [D]efendant

produced [a] loss of [] love and affection.” Nunn, 154 N.C. App. at 533, 574 S.E.2d at

42; Stocks, 378 N.C. 342, 2021-NCSC-90, ¶ 13. We hold that he did. The evidence of

a friendship and frequent contact between Alison and Defendant that existed prior to

the relationship, as well as their romantic and sexual relationship after separation,

while not sufficient for a jury to conclude the final element of alienation of affection

had been met on its own, could convince a jury that Defendant was “Bestie”—or, if

different, the person with whom she admitted she had engaged in sexual intercourse.

Accordingly, the trial court erred in granting Defendant’s Motion for Summary

Judgment with respect to Plaintiff’s claim for alienation of affection.

¶ 25 Likewise, Plaintiff’s evidence, when taken as true and viewed in the light most

favorable to him, Stocks, 378 N.C. 342, 2021-NCSC-90, ¶ 13, demonstrates that

Defendant was liable for criminal conversation. “To withstand [a] defendant’s motion

for summary judgment on [a] claim of criminal conversation, [a] plaintiff must

present evidence demonstrating: ‘(1) marriage between the spouses and (2) sexual

intercourse between [the] defendant and [the] plaintiff’s spouse during the

marriage.’” Coachman v. Gould, 122 N.C. App. 443, 446, 470 S.E.2d 560, 563 (1996)

(quoting Chappell v. Redding, 67 N.C. App. 397, 401, 313 S.E.2d 239, 241, disc. rev.

denied, 311 N.C. 399, 319 S.E.2d 268 (1984)). Here, as in the alienation of affection
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claim, there is no meaningful dispute as to whether Plaintiff and Alison were

married; and, also as in the alienation of affection claim, Alison’s admission that she

had engaged in sexual intercourse with a third party, together with her friendship,

contacts, and future romantic and sexual relationship with Defendant, would allow a

jury to find Defendant had engaged in sexual intercourse with Alison prior to her and

Plaintiff’s separation.5

¶ 26 Accordingly, the trial court also erred in granting Defendant’s Motion for

Summary Judgment with respect to Plaintiff’s claim for criminal conversation.

CONCLUSION

¶ 27 In alienation of affection and criminal conversation cases, a plaintiff’s evidence

of a defendant’s conduct occurring after a plaintiff and his or her ex-spouse separate

constitutes viable corroborative evidence for purposes of satisfying the burden of

production where the identity of a pre-separation extramarital sexual partner is

unknown. Accordingly, here, the trial court erred in granting Defendant’s Motion for

Summary Judgment.

REVERSED AND REMANDED.

5 We note that the separation restriction in N.C.G.S. § 52-13 also applies to criminal
conversation. See N.C.G.S. § 52-13(a) (2021) (emphasis added) (“No act of [a] defendant shall
give rise to a cause of action for alienation of affection or criminal conversation that occurs
after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the
plaintiff or plaintiff’s spouse that the physical separation remain permanent.”).
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Judge DILLON concurs with a separate opinion.

Judge JACKSON dissents with a separate opinion.
 No. COA21-85 – Beavers v. McMican

DILLON, Judge, concurring.

¶ 28 I fully concur in the majority opinion. Plaintiff David Beavers forecasted

sufficient evidence to survive summary judgment on his claims against Defendant for

alienation of affection and criminal conversation, so called “heartbalm” torts.

Admittedly, there was no direct evidence before the trial court that David’s wife,

Alison, and Defendant were engaging in an affair involving sexual intercourse prior

to David and Alison’s separation. However, there was evidence that, shortly before

their separation, Alison admitted to her husband having an affair with a married co-

worker, though she would not identify who the co-worker was. And the

circumstantial evidence forecasted by David, when viewed in the light most favorable

to him, was sufficient for a jury to infer that Allison’s affair Alison was with

Defendant. This circumstantial evidence showed the following occurred during the

year leading up to David and Alison’s separation:

¶ 29 As of January 2016, eleven months before they separated, David and Alison

had been happily married for much of their eleven years together. Three children

were born to the marriage. But that month, David discovered that Alison had sent

sexually charged messages and seductive selfies to a married co-worker she refused

to identify. Defendant and Alison were co-workers. During 2016, Alison spent some

nights and weekends away from David, often being cryptic about where she was going

or whom she was with. Defendant admitted going on overnight business trips in
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2016. Defendant met with Alison multiple times outside of work prior to Alison and

David’s separation. In July 2016, David found a receipt from a hotel where Alison

had stayed. Defendant and Alison spoke on the phone on one occasion in July 2016

late at night, just prior to midnight. During a week in October 2016, a few months

before David and Alison separated, Defendant and Alison exchanged 98 text

messages. David and Alison separated in December 2016; Defendant and his wife

separated shortly thereafter. By April 2017, Defendant and Alison were openly

dating and had sexual intercourse before David and Alison’s divorce became final.

¶ 30 As judges, we should not allow our general opinions about heartbalm torts to

interfere with our duty to fairly evaluate evidence when determining whether a

plaintiff is entitled to have her claims involving these torts heard by a jury.

¶ 31 I write separately to address our dissenting colleague’s concern (and the

concern in some circles identified in his dissenting opinion) that North Carolina still

recognizes claims for alienation of affection and criminal conversation.

¶ 32 Many argue that North Carolina should abolish heartbalm torts because of its

misogynistic origins. Indeed, the right to seek damages from a third party who

interferes with a marital relationship was originally only available to married men.

This right was not available to married women, as a wife was considered in a way the

property of her husband. But most rights we all enjoy today used to be enjoyed only
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by some. Throughout history, we have responded to these injustices by extending

these rights to be enjoyed by more groups, not by eliminating them.

¶ 33 For instance, under the common law, a married woman lacked the capacity to

enter contracts. Sanderlin v. Sanderlin, 122 N.C. 1, 2, 29 S.E. 55, 55 (1898) (“At

common law the contract of a married woman was void.”). However, recognizing the

right to contract is a good thing, rather than doing away with this right altogether,

the right to contract has been extended to almost all, including married women.

¶ 34 Also, under the common law, married women had very limited property rights.

See Bass v. Paquin, 140 N.C. 83, 87, 52 S.E. 410, 412 (1905) (“Prior to 1848, we find

no [North Carolina] statute interfering with or limiting the common law right and

power of the husband over his wife’s property.”). However, recognizing the right to

own/control property to be a good thing, rather than eliminating this right altogether,

property rights have been extended to married women.

¶ 35 “The right to vote is one of the most cherished rights in our system of

government[.]” Blankenship v. Bartlett, 363 N.C. 518, 522, 681 S.E.2d 759,762 (2009).

It used to be that most people, including married women, could not vote. Again,

recognizing the right to vote is a good thing, rather than further restricting voting

rights, the right to vote has been extended to most citizens, including married women.

¶ 36 Our Supreme Court recognizes the “tangible and intangible benefits resulting

from the loving bond of the marital relationship.” Nicholson v. Hugh Chatham, 300
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N.C. 295, 302, 266 S.E.2d 818, 822 (1980). Indeed, the United States Supreme Court

recognizes that “marriage is ‘one of the vital personal rights essential to the orderly

pursuit of happiness by free [people].’” Obergefell v. Hodges, 576 U.S. 644, 664 (2015)

(quoting Loving v. Virginia, 388 U.S. 1, 12 (1967)).

¶ 37 Recognizing the benefits one receives from a good marriage relationship, our

Supreme Court has stated that the basis of an alienation of affection action “is the

[plaintiff’s] loss of the society, affection, and assistance of [the plaintiff’s spouse].”

Ross v. Dean, 192 N.C. 556, 135 S.E. 348, 349 (1926) (suit by husband). As was done

in other jurisdictions, North Carolina extended the right to sue for this law to married

women. See Brown v. Brown, 121 N.C. 8, 27 S.E. 998 (1897) (extending this right to

wives to sue for this loss). More recently, some jurisdictions have done an about-face

and have abolished the right of individuals to sue for this loss altogether. But there

is a strong argument why we should not follow suit, considering the other injuries for

which we allow people to seek redress, many involving less harmful conduct and harm

to less significant relationships.

¶ 38 For instance, we already allow a plaintiff to recover for the loss of “society,

affection, and companionship” of his/her spouse when that loss is caused by the mere

negligence of a third party, whose negligence act results in the death or severe injury

to the plaintiff’s spouse. Nicholson, 300 N.C. at 302, 266 S,E,2d at 822 (recognizing

claim for “loss of consortium”). Interestingly, under our common law, only a husband
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could sue for loss of consortium, as his wife “was regarded as little more than a chattel

in the eyes of the law.” Id, at 298, 266 S.E.2d at 820. But rather than eliminating

the right to seek a loss of consortium claim based on this history, we now recognize

the loss suffered by a married woman when she loses the benefits of her marriage due

to the negligence of a third party is equally compensable. Id. at 297, 266 S.E.2d at

819 (“[T]he essence of consortium today has become a mutual right of a husband and

wife to the society, companionship, comfort and affection of one another.”).

¶ 39 I am not aware of any move to abolish loss of consortium claims. How much

more should a married person be able to recover for this same loss (society, affection,

companionship) when caused by the wrongful/malicious acts of a third party?

¶ 40 Further, I note that we recognize torts against third parties who

wrongfully/maliciously interfere relationships which most would consider less

significant than a marriage relationship.

¶ 41 For instance, if I enter a contractual relationship with someone to buy her car

and if a third party convinces the seller to breach her contract with me, our law

recognizes my right to recover any resulting damage. I have the right to sue that

third party for interfering with my contractual relationship. See Beverage Sys. v.

Associated Bev., 368 N.C. 693, 784 S.E.2d 457 (2016) (recognizing “tortious

interference with contract” claim).
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¶ 42 Even if I only have a potential contractual relationship to buy the car, our law

recognizes that I have suffered compensable damages when a third party acts out of

malice in talking the seller out of entering a contract with me. See Owens v. Pepsi

Cola, 330 N.C. 666, 412 S.E.2d 636 (1992) (recognizing claim for “tortious interference

with prospective economic advantage”).

¶ 43 In a non-commercial setting, our law allows me to sue a third party who acts

out of malice to prevent another from creating a valid will which would have included

me as a beneficiary. See Bohannon v. Wachovia, 210 N.C. 679, 188 S.E. 390 (1936)

(recognizing claim for “tortious interference with an expected inheritance”).

¶ 44 These torts have long been recognized, and I am not aware of any movement

to take away the right to seek damages for these civil wrongs. How much more should

we continue to recognize the right of individuals to seek damages from those who out

of malice interfere with one of the most important relationships in society?

¶ 45 I acknowledge that there is a concern in retaining heartbalm torts based on

the occasional large jury verdict. But we value the role of juries in our society to use

their judgment to evaluate the value of compensable harm, within legal parameters.

If the size of jury awards is perceived as a problem, the better answer may be a type

of tort reform to hold down “runaway” verdicts, rather than abolishing the right for

married persons to seek damages at all for the tremendous harm done to them and

their families by third parties acting wrongfully/maliciously.
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¶ 46 The harm caused by criminal conversation – which merely requires a showing

that a third party committed adultery with the plaintiff’s spouse, without any

requirement to show that the adultery caused the affections of the cheating spouse to

be alienated – causes a different harm. Unlike with alienation of affection, a third

party can be held liable for criminal conversation even where the cheating spouse

instigated the contact.

¶ 47 However, most married persons have an expectation of fidelity within the

marriage. Malecek v. Williams, 255 N.C. App. 300, 304, 804 S.E.2d 592, 596 (2017)

(analyzing the constitutionality of North Carolina’s heartbalm torts). And a plaintiff

suffers harm when this expectation is not realized. It may be that a cheating spouse

and third party should not be held criminally liable for adultery. Indeed, such

prosecutions are essentially non-existent, and many courts have held such criminal

laws to be unconstitutional. However, just because one should not be held criminally

responsible does not necessarily mean that civil liability cannot be imposed, as with

other torts that do not involve criminal conduct. Cheating spouses already suffer

from a civil standpoint for their adulterous behavior: a cheating spouse who is a

supporting spouse is liable for alimony; and a cheating spouse who is a dependent

spouse loses any right to receive alimony. N.C. Gen. Stat. § 50-16.3(a).

¶ 48 “No union is more profound than marriage, for it embodies the highest ideals

of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people
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become something greater than once they were.” Obergefell, 576 U.S. at 681. Under

our common law, the right to seek redress from a jury of his peers for the loss of the

benefits of this most profound of relationships used to reside solely with men. But,

as with other rights, our State has progressed by extending this right to women. I

see no reason why we should regress.
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JACKSON, Judge, dissenting.

¶ 49 I would hold summary judgment for Defendant was proper in that Plaintiff

had utterly failed to produce one single genuine issue of material fact as to the

identity of his wife’s paramour and would therefore affirm the order of the trial court.

Additionally, on a more fundamental level, the torts of alienation of affection and

criminal conversation have been outdated for over a hundred years and it is past time

that these torts be abolished. I wish to take this opportunity to explain in detail why.

¶ 50 For all the reasons below, I respectfully dissent.

I. The Torts of Alienation of Affection and Criminal Conversation Should
be Abolished

¶ 51 In the latter half of the 19th century, every state in the nation, apart from

Louisiana, recognized a husband’s right of action to bring alienation of affection and

criminal conversation claims. William R. Corbett, A Somewhat Modest Proposal to

Prevent Adultery and Save Families: Two Old Torts Looking for A New Career, 33

Ariz. St. L.J. 985, 1005 (2001) (“Corbett”). By the 1980s, even with the ability of wives

to bring the same causes of action due to the passage of Married Women’s Property

Acts, most states had limited the torts significantly or abolished them entirely. Id.

at 1009-10. Today, alienation of affection remains a viable tort claim in only four

states besides North Carolina—Hawaii, Mississippi, South Dakota, and Utah—and
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JACKSON, J., dissenting

criminal conversation in only three other states—Hawaii, Kansas, and Maine. 6 See

H. Hunter Bruton, Note, The Questionable Constitutionality of Curtailing

Cuckolding: Alienation-of-Affection and Criminal-Conversation Torts, 65 Duke L.J.

755, 760-61 (2016).

¶ 52 Despite the overwhelming disfavor of these claims nationally, these torts are

alive and well in North Carolina, regrettably in my view. Practitioners estimate

approximately 200 alienation of affection lawsuits are filed each year. Meghann

Mollerus, Alienation of Affection: Yes, You Can Sue Your Marriage’s Homewrecker,

WFMY News 2 (Feb. 12, 2019, 9:28 AM) https://www.wfmynews2.com/article/home/

alienation-of-affection-yes-you-can-sue-your-marriage-homewrecker/83-1b416ffc-

4665-4763-82d6-bb73c40c32d4. Furthermore, over the past two decades the damages

awards have become enormous. Amongst the notable verdicts between 1998 and 2018

were seven jury awards of $1 million or more, including a $9 million award in 2010,

four jury awards between $100,000 and $750,000, and three bench awards between

$5 million and $30 million. G. Edgar Parker, Tort Claims for Alienation of Affections

and Criminal Conversation are Alive and Well in North Carolina, N.C. State Bar J.,

Summer 2019, at 20-21. These torts continue to be used despite repeated legislative

6 Although it has not been expressly abolished in New Mexico, the New Mexico
Supreme Court disfavors claims for alienation of affection and even stated as long ago as
1978 that the tort goes against the best interest of the people and should be abolished.
Thompson v. Chapman, 93 N.M. 356, 358, 600 P.2d 302, 304 (1978).
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JACKSON, J., dissenting

attempts to abolish them. Jean M. Cary & Sharon Scudder, Breaking Up Is Hard To

Do: North Carolina Refuses to End Its Relationship with Heart Balm Torts, 4 Elon

L. Rev. 1, 16-19 (2012) (“Cary & Scudder”).

¶ 53 Additionally, prominent stakeholders in the North Carolina legal community

have long called for the end of the so-called heart balm torts. In 1998—almost twenty-

five years ago—the North Carolina Association of Women Attorneys adopted a

resolution calling for the elimination of the torts. The resolution’s recitals typify the

reasons the torts should be abolished:

WHEREAS the origin of the torts, alienation of affection
and criminal conversation is the anachronistic philosophy
that women were property; and

WHEREAS this philosophy is inconsistent with the sound
principle that women are full and equal partners in
marriage; and

WHEREAS these torts are inconsistent with North
Carolina’s public policy embodied in its laws of no fault
divorce; and

WHEREAS, the litigation of these torts contributes to the
conflict between marital partners and has a detrimental
impact on the family.

Annual Meeting Resolutions, North Carolina Association of Women Attorneys,

https://www.ncawa.org/assets/docs/ncawa-annual-meeting-resolutions-through-

2018.pdf (last accessed 20 July 2022). In the early 2000s, the Family Law Section of

the North Carolina Bar Association began actively advocating for the legislative
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JACKSON, J., dissenting

repeal of the torts. Cary & Scudder, supra at 16.

¶ 54 Our Court even judicially abolished the torts in 1984, Cannon v. Miller, 71 N.C

App. 460, 497, 322 S.E.2d 780, 804 (1984), only to have the decision vacated just two

months later by our Supreme Court in a four-sentence order, 313 N.C. 324, 327 S.E.2d

888 (1985). There was no analysis in the Supreme Court’s order. All the reasons for

abolishing the torts articulated by our Court in Cannon remain true today and many

of these reasons have only become more compelling over the last 36 years. Our

Supreme Court deserves another opportunity to correct this wrong.

A. The Concept of Women as Property Inherent in the Claims of Alienation
of Affection and Criminal Conversation Is Wrong, and Inconsistent with
Modern Law

¶ 55 Alienation of affection and criminal conversation are common law torts rooted

in the antiquated idea that women, when married, are the personal property of their

husbands. Legal recognition and validation of these rights gave husbands “an action

against a third party when that person abducted her, seduced her, beat her, or ‘stole’

her affections”—in other words, a lawsuit for stealing a woman from a man that

through marriage the law regarded the man to own, as though the woman were

livestock or worse. 1 Suzanne Reynolds, Reynolds on North Carolina Family Law

§ 3.12 (6th ed. 2020) (“Reynolds”); see also Barbee v. Armstead, 32 N.C. (10 Ired.) 530

(1849). This action, in its early incarnation known as a suit for enticement, allowed

a husband to recover for the loss of his wife’s services from a third person who had
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JACKSON, J., dissenting

enticed or separated the wife away from the husband, regardless of whether the wife

had herself consented to leave. See Reynolds, supra § 3.12; Cannon v. Miller, 71 N.C.

App. at 471, 322 S.E.2d at 789. While enticement as such is no longer recognized in

North Carolina, or any other state, the iniquitous spirit of the tort is alive and

flourishing in the claims of alienation of affection and criminal conversation still

recognized today in North Carolina. Reynolds, supra, § 3.12; see also Jennifer E.

McDougal, Comment, Legislating Morality: The Actions for Alienation of Affections

and Criminal Conversation in North Carolina, 33 Wake Forest L. Rev. 163, 164

(1998) (“McDougal”).

¶ 56 It has been said that “[t]he gravamen of the . . . cause of action [for alienation

of affection] is the deprivation of the husband of his conjugal right to the society,

affection, and assistance of his wife[.]” Cottle v. Johnson, 179 N.C. 426, 428, 102 S.E

769, 770 (1920). In other words, “the action seeks recompense for the loss of

consortium[.]” Reynolds, supra, § 3.13. Between spouses, “consortium” is a legal

euphemism for sex. Consortium, Black’s Law Dictionary (11th ed. 2019). The right

of a husband to recover for the loss of consortium from his wife was based on the

shameful legal recognition and validation of the wife as chattel owned by the

husband. Cannon, 71 N.C. App. at 473, 322 S.E.2d at 790. If a third party interfered

with the service of a man’s chattel, such as a servant or a slave, that man had an

action for trespass. Id. Applying this concept to the marital relationship, if a third
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JACKSON, J., dissenting

party interfered with a wife providing her services—her society, companionship, and

sexual relations—to her husband, then the husband had a cause of action. Id. In

terms that unfortunately were characteristically common at the time, the North

Carolina Supreme Court described this reality in a 1921 opinion, explaining:

At common law the husband could maintain an action for
the injuries sustained by his wife for the same reason that
he could maintain an account for injuries to his horse, his
slave, or any other property; that is to say, by reason of the
fact that the wife was his chattel. This was usually
presented in the euphemism that “by reason of the unity of
marriage” such actions could be maintained by the
husband.

Hipp v. E.I. Dupont De Nemours & Co., 182 N.C. 9, 12, 108 S.E. 318, 319 (1921),

overruled by Hinnant v. Tide Water Power Co., 189 N.C. 120, 126 S.E. 307 (1925).

¶ 57 Prior to the enactment of Married Women’s Property Acts, only husbands had

a property interest in their wives and therefore only a husband could recover for the

loss of consortium. McDougal, supra, at 165. In Hipp, our Supreme Court frankly

noted the reason that a woman had no corresponding property interest in a man to

whom she was married by referencing Blackstone’s Commentaries:

We may observe that in these relative injuries notice is only
taken of the wrong done to the superior of the parties
(husband) injured by the breach and dissolution of either
the relation itself, or at least the advantages accruing
therefrom; while the loss of the inferior (the wife) by such
injuries is totally unregarded. One reason for this may be
this: That the inferior hath no kind of property in the
company, care or assistance of the superior is held to have
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JACKSON, J., dissenting

in those of the inferior; and therefore the inferior can suffer
no loss or injury.

182 N.C. at 13, 108 S.E. at 319 (quoting 3 Blackstone’s Commentaries, 143) (emphasis

added).

¶ 58 By the end of the 1800s, every state had enacted laws known as Married

Women’s Property Acts that removed some of the legal disabilities of married women

and granted them most of the same de jure rights as their husbands—primarily,

rights to “acquire, own, and transfer property, make contracts, be employed and keep

their earnings, sue, and be sued.” McDougal, supra, at 165 n.13. As the inferior party

was now at least nominally on somewhat more equal footing with the so-called

superior party, the North Carolina Supreme Court decided in 1897 that women could

also bring an action for alienation of affection against their husbands, see Brown v.

Brown, 121 N.C. 8, 27 S.E. 998 (1897), and by 1925 went as far as to hold that the

same was true for the tort of criminal conversation, see Hinnant, 189 N.C. at 126, 126

S.E. at 309-10.

¶ 59 Today, proponents of the torts often argue that the archaic origins of the torts

do not matter and the fact that women today enjoy the right to assert claims on an

equal basis with men, along with other rationales—such as disincentivizing adultery

and promoting the stability of the nuclear family for the purpose of childrearing—

justify the continued existence of the torts. See Lance McMillan, Adultery as Tort, 90
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JACKSON, J., dissenting

N.C. L. Rev. 1987, 1999 (2012) (“McMillan”); Corbett, supra at 1015. Yet the ability

of both husbands and wives to bring an action for alienation of affection and criminal

conversation does not resolve, abrogate, or otherwise eliminate the offensive and

outdated concept underpinning the torts—that through marriage, a spouse becomes

the property of the other spouse.

¶ 60 A person cannot be the property of another person. A wife is not property, and

a husband is not property. For the most part, the law stopped recognizing and

validating this concept over 100 years ago. That it has not stopped doing so in North

Carolina in 2022 through the continued recognition of the validity of the torts of

alienation of affection and criminal conversation is shameful and a wrong that we

should right today. If spouses are not property of one another, they cannot be stolen—

nor can their love or affection be stolen. See McDougal, supra at 181-83. The law

must not validate the idea that sex is something a person can owe another person—

and by extension, something that a third person could possibly steal—regardless of

whether the two people have been joined in the legal union we know as marriage.

“[T]he promise of sexual fidelity is simply not a possession that can be taken away by

a third party without the permission of the participating spouse.” Cary & Scudder,

supra at 14. As the Washington Court of Appeals summarized when abolishing

criminal conversation: “The love and affection of a human being who is devoted to

another human being is not susceptible to theft. There are simply too many
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JACKSON, J., dissenting

intangibles which defy the concept that love is property.” Irwin v. Coluccio, 32 Wash.

App. 510, 515, 648 P.2d 458, 461 (1982). Love is not property.

¶ 61 By extension, if a person is not the property of another person—nor is their

love or their affection—then that person cannot be compensated for the loss of this

property because it was not property in the first place. In abolishing alienation of

affection in 1981, the Supreme Court of Iowa explained: “We certainly do not do so

because of any changing views on promiscuous sexual conduct. It is merely and

simply because the plaintiffs in such suits do not deserve to recover for the loss of or

injury to ‘property’ which they do not, and cannot, own.” Fundermann v. Mickelson,

304 N.W.2d 790, 794 (Iowa 1981). The same should be true in North Carolina.

¶ 62 Furthermore, any suggestion that the concept that women are the property of

their husbands is not, or is no longer, the basis for the torts of alienation of affections

and criminal conversation is false, or worse—dishonest. Our Court explained as

much almost 40 years ago in Cannon v. Miller: “The[se] [] actions have never fully

shaken free from their property-based origins, as evidenced by fact that the consent

of the participating spouse to the offending conduct, or even his or her initiation of it,

will not bar the suit.” 71 N.C. App. at 492, 322 S.E.2d at 801. In other words, the

lack of consent as a defense means the law treats spouses as property that can be

taken from one another rather than as fully autonomous and equal moral persons

who can make their own voluntary choices, including the choice to engage in an
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JACKSON, J., dissenting

extramarital relationship with a third person—whether or not the relationship is

sexual.

¶ 63 Participation in extramarital relationships, sexual or not, may be wrong, and

society may rightly disapprove of such behavior; however, disincentivizing people

from choosing to engage in these relationships by treating a person as the property

of another person is wrong and has no place in our world or society today. The

Married Women Property Acts were supposed to dispose of the legal treatment of

women as the property of men they had married—and of course, the law has never

regarded husbands as the personal property of their wives. The fact that the consent

of a spouse remains unavailable to a third party to the marriage as a defense to a

claim belies any argument that the torts are not or are no longer fundamentally

sexist, wrong, and based on the concept that women are the property of men they

marry. See 1 Lloyd T. Kelso, North Carolina Family Law Practice § 5.9 (2022).

¶ 64 The fact these torts inherently treat people and their love, affection, and

society as property makes them fundamentally different than torts that allow for the

compensation of interference in contractual relationships. A party to a contract can

sue a third-party for tortious interference with the contract because the party has

contractual rights to the subject of the contract, not inherent property rights to the

subject of the contract. “[P]roperty is about a person’s right to a thing, and contract

is about promises to transfer those rights from one person to another.” Blake
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JACKSON, J., dissenting

Rohrbacher, Note, More Equal Than Others: Defending Property-Contract Parity in

Bankruptcy, 114 Yale L.J. 1099, 1103 (2005). To justify the existence of the

heartbalm torts on the basis that we allow for the compensation of interference in

contractual relationships would be to view marriage as a contractual relationship in

which spouses confer to one another a property right in themselves and their services.

Ultimately, either view of marriage advanced by the justifications of these torts—as

two people who are the property of one another or two people who contracted to

exchange their companionship and services with one another—undermines the idea

of a marriage as a commitment between two individuals who freely and joyfully

promise to love, cherish, and honor one another till death do them part.

¶ 65 The existence of these torts today is indefensible. As the Missouri Supreme

Court observed almost 20 years when it finally judicially abolished the tort of

alienation of affection in Missouri, “[w]hen the reason for a rule of law disappears, so

to[o] should the rule. . . . The original property concepts justifying the tort are

inconsistent with modern law.” Helsel v. Noellsch, 107 S.W.3d 231, 233 (Mo. 2003)

(en banc) (internal citation omitted).

B. Alienation of Affection and Criminal Conversation Do Not Actually
Serve the Purposes Stipulated as Modern Justifications for their
Continued Existence

¶ 66 The modern justifications for these heartbalm torts, “providing a remedy for

injuries of a highly sensitive nature while discouraging intentional disruptions of
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JACKSON, J., dissenting

families[,]” McDougal, supra at 182 (citation omitted), simply do not remedy the

poisonous origins of the torts. This would be true even if alienation of affection and

criminal conversation actually “fulfill[ed] their purposes of protecting marriages and

the family, compensating the plaintiff for an actual loss, and deterring undesirable

behavior.” Id. at 183 (internal marks omitted). The reality, however, is that the torts

fail to serve these purposes, and lack any adequate modern justification for existence.

¶ 67 Proponents of these torts often argue that they act as a deterrent to people

contemplating an extramarital affair—that a potential third party will pause and

consider the potential financial repercussions before becoming involved with a

married person. Corbett, supra at 1016-17. The subtext of this argument is that

society cannot rely on individual moral decision making and thus a financial

disincentive is needed to prevent extramarital affairs. The effectiveness of any such

deterrent, however, requires that the existence of the disincentive is common

knowledge. If a third party does not know they could be sued for participating in an

affair with a married person, then the torts have no deterrent effect whatsoever. And

there is not public knowledge of the continued viability of the torts in North Carolina

today. See, e.g., Cary & Scudder, supra at 21 (“[M]any people in North Carolina do

not know that they can be sued for having intercourse with a person who is married,

and even if they do know, they may not be aware of the true marital status of the

person they are seducing. . . . [P]eople who are not lawyers are often surprised to find
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JACKSON, J., dissenting

out that spouses can sue the third party for monetary damages as a result of an

extramarital affair.”) (internal marks omitted). This lack of public awareness

continues despite the media attention multi-million-dollar verdicts generate.

¶ 68 Marriages are not preserved by the torts, nor are families protected by them.

No credible empirical evidence suggesting otherwise exists. These torts do not

dissuade third parties from engaging in an affair with a married person. Between

2019 and 2020, the last period prior to the increased stress of the pandemic for which

data is available, North Carolina tied for the 16th highest divorce rate amongst 45

states. Divorce Rates by State: 2019-2020, Ctrs. for Disease Control and Prevention,

https://www.cdc.gov/nchs/pressroom/sosmap/divorce_states/divorce_rates.htm (last

accessed 25 July 2022). Amongst the other states where alienation of affection

remains a viable cause of action, Mississippi and Utah are tied for the sixth highest

divorce rate, and South Dakota is tied for the 22nd highest divorce rate. Id.

¶ 69 The ultimate irony of the justification that these torts help preserve marriages

or protect families is that the initiation of a lawsuit almost certainly pushes a

struggling marriage past the point of reconciliation. McDougal, supra at 183. The

Court in Cannon v. Miller put it thusly: “[G]ranting that the marriage relation is

deserving of society’s protection, the efficacy of the actions as a ‘preservative’ has

never been documented. Rather, the very institution of the lawsuit would seem likely

to destroy any remaining marital harmony through the notoriety of marital failure
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and the stresses of litigation.” 71 N.C. App. at 492, 322 S.E.2d at 800-01.

¶ 70 Similarly, the existence of these torts likely harms families and their ability to

heal and move forward. Particularly examining the impact of protracted litigation

on children, two authors explained:

If children are involved in a marriage that ends in the
shadow of adultery, then protecting the emotional stability
of the children also provides a strong reason why criminal
conversation and alienation of affection should be
abolished.

One author argues that the civil adversarial system in
family law already greatly increases harm to children who
are subjected to divorce by encouraging competition and
power struggles between parents at the expense of the
child, and that the time for litigation must be limited for
the benefit of the children.

To minimize the negative impact upon children involved in
divorce, parents must minimize the involvement of the
legal system and lengthy litigation following divorce,
rather than increase the causes of action filed against the
spouse or an alleged paramour. In working out the details
of ending a marriage, families are better served by avoiding
a situation where one spouse is pitted against the other
because children suffer greater harm when they are
expected to choose sides between two parents.

Cary & Scudder, supra at 25 (footnotes and internal marks omitted). To a certain

extent, forgiveness “is required in order for a betrayed spouse to move forward into

healthy relationships” and such forgiveness can, in part, be obtained by relinquishing

the right or desire to punish the betraying spouse. Id. at 24.
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¶ 71 Stripped of the proffered modern justifications, the only reasons that remain

for the continued existence of the torts is the antiquated and immoral concept that a

person can be the property of another person because they are married, which as

discussed infra, has no place in our world. Continued recognition of the torts is

indefensible. They should be abolished by our Court today.

II. Analyzing the Case Sub Judice

¶ 72 Notwithstanding my belief that alienation of affection and criminal

conversation should be abolished by our Court today, I would hold that the trial court

did not err in granting Defendant’s motion for summary judgment and that the order

of the trial court should be affirmed. First, the Rodriguez v. Lemus, 257 N.C. App.

493, 810 S.E.2d 1 (2018), opinion upon which Plaintiff relies was wrongly decided.

The legislative history of N.C. Gen. Stat. § 52-13(a) demonstrates that the General

Assembly intended for it to make an inference by the jury of pre-separation conduct

from evidence of post-separation conduct impossible. Second, even applying

Rodriguez, I would hold that the proffered evidence of post-separation conduct in this

case is insufficient to support an inference that it was Defendant who engaged in

tortious pre-separation conduct with Plaintiff’s wife. Any conclusion to that effect by

a jury would be based on nothing more than mere conjecture.

A. Rodriguez Was Wrongly Decided

¶ 73 As the Rodriguez Court highlighted, “[i]n 2009, the General Assembly codified
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alienation of affection and criminal conversation in a statute specifically limiting

these torts to arise only from acts committed prior to a couple’s separation[.]” 257

N.C. App. at 496, 810 S.E.2d at 4. The new section added to Chapter 52 of the North

Carolina General Statutes provides in relevant part: “No act of the defendant shall

give rise to a cause of action for alienation of affection or criminal conversation that

occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent

of either the plaintiff or plaintiff’s spouse that the physical separation remain

permanent.” N.C. Gen. Stat. § 52-13(a) (2021). The Court in Rodriguez reasoned that

the effect of this section is that claims of alienation of affection and criminal

conversation “cannot be sustained without evidence of pre-separation acts satisfying

the elements of these respective torts.” 257 N.C. App. at 497, 810 S.E.2d at 4.

¶ 74 The Court in Rodriguez went on to state that it was “less clear [] whether

evidence of post-separation acts is admissible to support an inference of pre-

separation acts constituting alienation of affection or criminal conversation.” Id.

This is essentially a question of statutory interpretation since N.C. Gen. Stat. § 52-

13 dictates that liability only attaches to pre-separation conduct.

¶ 75 “The principal goal of statutory construction is to accomplish the legislative

intent. The intent of the General Assembly may be found first from the plain

language of the statute, then from the legislative history, the spirit of the act and

what the act seeks to accomplish.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d
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513, 517 (2001) (internal marks and citations omitted).

¶ 76 Here, the plain language of N.C. Gen. Stat. § 52-13 does not give a clear and

unambiguous answer to the question posited by the Rodriguez Court and therefore

the next step is to refer to the statute’s legislative history. See e.g., Wells Fargo Bank,

N.A. v. Am. Nat’l Bank & Tr. Co., 250 N.C. App. 280, 286, 791 S.E.2d 906, 911 (2016)

(“When this Court is called upon to interpret a statute, we must examine the text,

consult the canons of statutory construction, and consider any relevant legislative

history, regardless of whether the parties adequately referenced these sources of

statutory construction in their briefs. To do otherwise would permit the parties,

through omission in their briefs, to steer our interpretation of the law in violation of

the axiomatic rule that while litigants can stipulate to the facts in a case, no party

can stipulate to what the law is. That is for the court to decide.”)

¶ 77 The relevant legislative history of N.C. Gen. Stat. § 52-13 is as follows:

¶ 78 During the 2009 legislative session, a bill was introduced in the North Carolina

House of Representatives to amend Chapter 52 of the General Statutes, by adding a

new section delineating procedures in causes of action for alienation of affection and

criminal conversation. H.B. 1110, Gen. Assemb., Sess. 2009 (N.C.) (Filed),

https://www.ncleg.gov/Sessions/2009/Bills/House/PDF/H1110v0.pdf. After the bill

was debated and passed its second reading in the House, an amendment was

introduced on the House floor to add the following provision:
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Nothing herein shall prevent a court from considering
incidents of post-separation acts by defendant as
corroborating evidence supporting other evidence that
defendant committed acts during the marriage and prior to
the date of separation which would give rise to a cause of
action for alienation of affection or criminal conversation.

H.B. 1110, Gen. Assemb., Sess. 2009 (N.C.) (A3), https://webservices.ncleg.gov/

ViewBillDocument/2009/827/0/A3.

¶ 79 This proposed amendment was intended to align the treatment of post-

separation evidence in alienation of affection and criminal conversation cases with

that of the existing statutory treatment of post-separation marital misconduct as a

factor in post-separation support and alimony decisions. Indeed, the post-separation

support statute provided, as it still does today, the following:

Nothing herein shall prevent a court from considering
incidents of post date-of-separation marital misconduct as
corroborating evidence supporting other evidence that
marital misconduct occurred during the marriage and prior
to the date of separation.

N.C. Gen. Stat. § 50-16.2A(e) (2009) (emphasis added). The alimony statute included,

as it still does today, an identical provision when listing marital misconduct of either

spouse as a relevant factor the trial court should consider in determining the amount,

duration, and manner of payment of alimony. N.C. Gen. Stat. § 50-16.3A(b)(1) (2009).

¶ 80 Crucially, the proposed amendment failed. Accordingly, the Rodriguez holding

permitting the use of post-separation conduct evidence to support findings or
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inferences of pre-separation misconduct is fundamentally inconsistent with the

legislative intent behind N.C. Gen. Stat. § 52-13(a).

¶ 81 I note here that my above analysis does not run afoul of our Supreme Court’s

guidance regarding the use of legislative intent where there is a failure to act on

behalf of the legislature. In North Carolina Department of Corrections v. North

Carolina Medical Board, 363 N.C. 189, 675 S.E.2d 641 (2009), our Supreme Court

delineated the following:

First, this Court has previously recognized the rule “that
ordinarily the intent of the legislature is indicated by its
actions, and not by its failure to act.” Styers v. Phillips, 277
N.C. 460, 472-73, 178 S.E.2d 583, 589-91 (1971) (“‘Courts
can find the intent of the legislature only in the acts which
are in fact passed, and not in those which are never voted
upon in Congress, but which are simply proposed in
committee.’” (quoting United States v. Allen, 179 F. 13, 19
(8th Cir. 1910), aff’d as modified on other grounds by Goat
v. United States, 224 U.S. 458 (1912), and by Deming Inv.
Co. v. United States, 224 U.S. 471 (1912))). That a
legislature declined to enact a statute with specific
language does not indicate the legislature intended the
exact opposite. Id. at 472, 178 S.E.2d at 589 (declining “‘to
attribute any such attitude to the Legislature’” and noting
that a party’s argument as to why a bill failed to pass “‘can
be nothing more than conjecture’” and “‘[m]any other
reasons for legislative inaction readily suggest
themselves’” (quoting Moore v. Bd. of Chosen Freeholders,
76 N.J. Super. 396, 404, 184 A.2d 748, 752, modified on
other grounds, 39 N.J. 26, 186 A.2d 676 (1962))). Finally,
“[i]n determining legislative intent, this Court does not
look to the record of the internal deliberations of
committees of the legislature considering proposed
legislation.” Elec. Supply Co. of Durham v. Swain Elec.
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Co., 328 N.C. 651, 657, 403 S.E.2d 291, 295 (1991).

Id. at 202, 675 S.E.2d at 650.

¶ 82 Here, the proposed amendment was voted on by the entire North Carolina

House of Representatives and the bill was voted on and passed by the General

Assembly. This is not the case of a legislature failing to pass a bill or a bill that never

left committee. Rather, the North Carolina House of Representatives had the

opportunity to permit the use of post-separation evidence to corroborate pre-

separation conduct and voted not to allow the use of such evidence in civil actions for

alienation of affection and criminal conversation. By looking at the failed

amendment, I am drawing on legislative history more substantial than the internal

deliberations of a committee or, as another example, the testimony by a member of

the legislature about a bill that failed to pass, as was the case in Styers v. Phillips,

277 N.C. 460, 178 S.E.2d 583, which our Supreme Court cited when outlining the rule

that it is actions and not inactions that indicate the intent of the legislature.

¶ 83 Furthermore, a failed amendment to a later-enacted bill is exactly the type of

legislative history our Court should draw on when interpreting an ambiguous statute.

After all, legislative history is defined both as “[t]he proceedings leading to the

enactment of a statute, including hearings, committee reports, and floor debates[,]”

Legislative History, Black’s Law Dictionary (11th ed. 2019), and “the textual, political,

and archival record of a statute or bill as it moves from idea to draft to bill, then
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through the process of introduction or sponsorship, committee review, debate,

amendment, voting, passage to the other chamber for a similar process, reconciliation

if needed, executive treatment and, if needed, legislative response[,]” Legislative

History, The Wolters Kluwer Bouvier Law Dictionary (Desk ed. 2012).

B. Even Applying Rodriguez, I Would Hold That Summary Judgment Was
Proper

¶ 84 Ultimately, although Rodriguez conflicts with the legislative intent behind

N.C. Gen. Stat. § 52-13(a), our Court is bound by its holding per our Supreme Court’s

directive in In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), that a

panel of this Court cannot overrule a previous panel’s decision. However, even

applying Rodriguez to the case at bar, I would hold that summary judgment was

proper and affirm the trial court because Plaintiff did not produce any evidence of

pre-separation conduct that evidence of post-separation conduct can properly

corroborate to give rise to more than mere conjecture.

1. Alienation of Affection Claim

¶ 85 “To establish a claim for alienation of affections, plaintiff’s evidence must

prove: (1) plaintiff and [his wife] were happily married and a genuine love and

affection existed between them; (2) the love and affection was alienated and

destroyed; and (3) the wrongful and malicious acts of defendant produced the

alienation of affections.” Darnell v. Rupplin, 91 N.C. App. 349, 350, 371 S.E.2d 743,
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745 (1988) (internal marks and citation omitted). “The plaintiff does not have to

prove that his spouse had no affection for anyone else[,] . . . he only has to prove that

his spouse had some genuine love and affection for him and that love and affection

was lost as a result of defendant’s wrongdoing.” Brown v. Hurley, 124 N.C. App. 377,

380-81, 477 S.E.2d 234, 237 (1996) (emphasis in original). Furthermore, “[o]ne is not

liable for merely becoming the object of the affections that are alienated from a

spouse. There must be active participation, initiative or encouragement on the part

of the defendant in causing one spouse’s loss of the other spouse’s affections for

liability to arise.” Peake v. Shirley, 109 N.C. App. 591, 594, 427 S.E.2d 885, 887

(1993).

¶ 86 As the majority notes, the issue here is with element three of Plaintiff’s

alienation of affection claim. Plaintiff has failed to produce any direct evidence

identifying Defendant as the individual with whom Plaintiff’s wife had an

extramarital affair and sexual intercourse with prior to Plaintiff and his wife’s

separation on 16 December 2016. Assuming arguendo that evidence of an affair prior

to Plaintiff and his wife separating equates to evidence of wrongful and malicious acts

that alienated the affections of Plaintiff’s wife, I would hold that the post-separation

evidence Plaintiff produced about the relationship between his wife and Defendant

that he argues corroborates the pre-separation evidence of marital misconduct gives

rise to nothing more than conjecture. Even under Rodriguez, this evidence does not
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support Plaintiff’s claims:

[E]vidence of post-separation conduct may be used to
corroborate evidence of pre-separation conduct and can
support claims for alienation of affection and criminal
conversation, so long as the evidence of pre-separation
conduct is sufficient to give rise to more than mere
conjecture.

257 N.C. App. at 498, 810 S.E.2d at 5 (emphasis added).

¶ 87 Specifically, I disagree with Plaintiff’s argument that the fact his wife and

Defendant began a relationship in April 2017 following their separation in December

2016 is sufficient post-separation evidence to conclude that it was in fact Defendant

who Plaintiff’s wife was having an affair with prior to their separation. Plaintiff’s

argument is nothing more than conjecture.

¶ 88 First, beyond Plaintiff’s wife’s own admission, there is no contemporaneous,

pre-separation evidence of an affair. Instead, Plaintiff alleges that in January 2016

he viewed sexually explicit text messages on his wife’s phone being exchanged with a

contact labeled “Bestie.” These text messages though are not a part of the record and

apparently have not been produced in discovery, nor has the phone number linked to

the “Bestie” contact, or the “Bestie” contact itself. Plaintiff has every incentive in this

case to provide this evidence and as yet has not supplied it. Without more, concluding

that Defendant was “Bestie” based on the post-separation evidence in the record

would be to reach a conclusion based on nothing more than an accusation. The simple
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existence of the “Bestie” contact in Plaintiff’s wife’s phone does not equate to pre-

separation evidence of Defendant being the individual on the other end of the “Bestie”

contact—this pre-separation evidence gives rise to nothing more than mere

conjecture.

¶ 89 Second, in January 2016 when Plaintiff’s wife admitted to having an affair and

sexual intercourse with another individual, Plaintiff’s wife offered two possibilities:

that the affair was with someone named Dustin or with a co-worker. Plaintiff

searched for a “Dustin” within his wife’s social media accounts and could find nothing,

but Plaintiff did not try and ascertain whether there was a “Dustin” working at Merck

Durham, where Plaintiff’s wife worked. Plaintiff’s wife also told Plaintiff at one point

that the co-worker she had an affair with moved to Atlanta, which Plaintiff believed

to the point he objected to his wife taking a girls’ weekend trip to Atlanta. Plaintiff

himself suspected his wife potentially had an affair during their marriage with an

individual named Jonathan Hartman because Mr. Hartman’s wife sent Plaintiff’s

wife a message about interfering with the Hartmans’s marriage. Therefore, the fact

that Plaintiff’s wife and Plaintiff himself identified persons other than Defendant as

men Plaintiff’s wife might have had an affair with indicates in part that Plaintiff’s

assertion that Defendant was Plaintiff’s wife’s paramour was no more than mere

conjecture.

¶ 90 Third, Plaintiff has alleged several actions by Defendant or his wife as evidence
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of pre-separation conduct that could be corroborated by evidence of post-separation

conduct to support his claims. There was no evidence properly before the trial court,

however, of a number of these actions, specifically that Plaintiff’s wife altered her

appearance at work, that Plaintiff’s wife and Defendant ate lunch together at work,

that Defendant gave Plaintiff’s wife a gift, and that Defendant joined the same gym

as Plaintiff’s wife.7 Defendant did admit to seeing Plaintiff’s wife outside of the

workplace in 2016 and earlier in his interrogatories, but only during group business

lunches and on two or three occasions in the context of birthday or farewell dinners

attended by other co-workers.

¶ 91 When considering other evidence that is a part of the record, during his

deposition, Plaintiff could not recall how many solo vacations his wife took prior to

January 2016, when they occurred, or where she went. Following the admission of

an affair, Plaintiff’s wife would occasionally stay the night at a female co-worker’s

house, and Plaintiff admitted that she told him the name of this co-worker. Plaintiff

never gathered any information to verify his wife’s location before or after the

admission of the affair. Furthermore, Plaintiff could not identify any third parties

7 Plaintiff identified these actions from the depositions of Plaintiff’s wife and
Defendant’s wife, which are contained in the Rule 11(c) supplement to the record. Per Part
A of the majority’s opinion in which I concur, these depositions were not certified until after
the summary judgment hearing, were not considered by the trial court in granting
Defendant’s motion for summary judgment, and therefore neither one informs this Court’s
review on appeal.
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who could provide information about when his wife met with someone to have an

affair or who witnessed his wife having inappropriate interactions with other men.

¶ 92 Additionally, in his sworn interrogatories, Defendant stated that his

relationship with Plaintiff’s wife became romantic on 1 April 2017 after they had a

daytime date picking strawberries, they had sex for the first time on 6 April 2017

after dinner at his apartment, which was also the first time Plaintiff’s wife stayed

overnight at Defendant’s apartment, and the first time he stayed at Plaintiff’s wife’s

apartment was in late summer or fall of 2017.

¶ 93 Altogether, the discovery that Plaintiff gathered included: (1) Defendant’s

phone records from September 2015 to February 2017 supplied by Verizon Wireless

and Defendant’s wife; (2) one set of 37 interrogatories completed by Defendant in

which he detailed in part the times he saw Plaintiff’s wife outside of work prior to

their divorce; (3) one set of 24 requests for admission completed by Defendant; (4) text

messages between Plaintiff and his wife from April to July 2018; and (5) Defendant’s

Facebook records ranging from September 2014 to April 2018. Plaintiff’s discovery

was expansive, and no direct evidence was produced that identified Defendant as

Plaintiff’s wife’s paramour, let alone any circumstantial evidence of pre-separation

conduct that could be corroborated by evidence of post-separation conduct.

¶ 94 That all of Plaintiff’s pre-separation and post-separation evidence amounts to

nothing more than mere conjecture is highlighted by Plaintiff himself in his
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deposition:

Q. I think the last question I asked was how did you
come to the conclusion that [Defendant] was the paramour?

A. So in the spring of 2017, she told me that she was
dating someone that she worked with.

Q. Okay.

A. And I put two and two together.

Q. What do you mean when you say you put two and
two together?

A. Well, she was having an affair. She had already told
me she was having an affair with someone she worked
with. And then she told me that she was dating only a few
months after our separation.

(Emphasis added.)

¶ 95 Even considering the evidence in the light most favorable to Plaintiff as the

nonmoving party, I would hold that Defendant met his burden of proving Plaintiff

cannot produce evidence to support the third element of his alienation of affection

claim, especially given that under Rodriguez, the type of evidence being proffered

gives rise to nothing more than mere conjecture.

2. Criminal Conversation Claim

¶ 96 To establish a claim for criminal conversation, plaintiff’s evidence must

establish “the actual marriage between the spouses and sexual intercourse between

defendant and the plaintiff’s spouse during the coverture.” Brown, 124 N.C. App. at
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380, 477 S.E.2d at 237. Additionally, in a case

[w]here adultery is sought to be proved by circumstantial
evidence, resort to the opportunity and inclination doctrine
is usually made. Under this doctrine, adultery is presumed
if the following can be shown: (1) the adulterous
disposition, or inclination, of the parties; and (2) the
opportunity created to satisfy their mutual adulterous
inclinations.

In re Estate of Trogdon, 330 N.C. 143, 148, 409 S.E.2d 897, 900 (1991) (internal

citations omitted). Evidence of sexual intercourse must rise above mere conjecture

and “if a plaintiff can show opportunity and inclination, it follows that such evidence

will tend to support a conclusion that more than ‘mere conjecture’ exists to prove

sexual intercourse by the parties.” Coachman v. Gould, 122 N.C. App. 443, 447, 470

S.E.2d 560, 563 (1996).

¶ 97 The issue here is with element two of Plaintiff’s criminal conversation claim.

Again, Plaintiff has failed to produce any direct evidence identifying Defendant as the

individual with whom Plaintiff’s wife had sexual intercourse with prior to Plaintiff

and his wife separating. Plaintiff relies on the same post-separation evidence he

argues corroborates the same pre-separation evidence conduct for this claim as he did

his alienation of affection claim. Accordingly, for all of the reasons delineated supra,

I would hold that the evidence does not rise above mere conjecture.

¶ 98 Particularly given that criminal conversation acts almost as a strict liability

tort, a plaintiff must produce evidence that the named defendant had an adulterous
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inclination or disposition and had the opportunity to act in satisfaction of this

adulterous inclination. Here, Plaintiff has produced no evidence either post-

separation or pre-separation that rises above merely conjecturing that Defendant has

such an inclination. Similarly, Plaintiff has produced no evidence either post-

separation or pre-separation of Defendant’s opportunity to act on his adulterous

inclinations. The times Plaintiff demonstrated that Plaintiff’s wife and Defendant

were together prior to the separation occurred at work or in the setting of work

gatherings—all spaces where other people were present. The only other pre-

separation evidence that even touches on opportunity is Plaintiff’s testimony in his

deposition that his wife took solo vacations. Plaintiff, however, provided no evidence

of when or where these vacations took place, let alone evidence that Defendant was

present at these vacations or even away from his own home during the same

timeframes.

¶ 99 Therefore, even considering the evidence in the light most favorable to Plaintiff

as the nonmoving party, I would hold that Defendant met his burden of proving

Plaintiff cannot produce evidence to support the second element of his criminal

conversation claim, and the evidence offered only gives rise to mere conjecture of

sexual intercourse between Defendant and Plaintiff’s wife.

III. Conclusion
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¶ 100 Plaintiff’s allegations for both claims lack adequate evidentiary support. Mere

conjecture is insufficient to withstand summary judgment. As Defendant met his

burden of showing that Plaintiff cannot produce evidence to support the third element

of his alienation of affections claim and the second element of his criminal

conversations claim, I would hold that the trial court properly granted Defendant’s

motion for summary judgment and would therefore affirm the order of the trial court.