1. law, govt and politics

FAMILY
FORUM
PUBLISHED BY THE NCBA’S FAMILY LAW SECTION
Inside This Issue:
9
Case Summaries
Vol. 27, No. 4 ■ June 2007 ■ www.ncbar.org
Teutonian Triangles
Practical Pointers in the Defense of Heartbalm Actions
B Y M ARY N ELL C RAVEN
The Chair’s Comments
My year as chair of
this active and thoughtful section is coming to a
close at the end of June.
I have had an enjoyable
and challenging time. I
have felt honored to
serve as chair. It is with
John W. Narron some sadness that I pass
the gavel to my successor Nancy Grace; but as I
reminded Nancy at our recent lunch together,
the best job in the section is that of past chair.
During this last year, I have had the pleasure
of presiding over debates at council meetings on
many issues such as our proposal to abolish
Alienation of Affections and Criminal
Conversation, our consideration of whether to
propose a substantial revision to the Alimony
Statutes, our consideration of substantial revisions to the Adoption Statutes, and a debate over
whether to have one or two bands at the Annual
Meeting this past April. Our section came
through each of those debates unified and
speaking of one voice on any and all substantial
issues. There is genuine comradery among the
council members. It is a pleasure to work with
all of them.
Moving forward as a section in 2007-08, we
will be led by Nancy Grace as chair and Ray
See COMMENTS page 2
Most of us have heard by now that the heartbalm torts have their earliest roots in the ancient
Teutonic tribes, where pure blood lines were
threatened by adultery. 54 Am. Jur. Proof of Facts
3d 135, Section 2, citing Campbell, Annual Survey
of South Carolina Tort Law: Court Abolishes
Alienation of Affections, 45 S.C. L. Rev. 218
(Autumn 1993). Adultery was forbidden due to
prejudice rather than morality, and the penalty
imposed was compensation to the husband sufficient to allow him to purchase a new spouse. Id.
Fast forward to the evolution of Anglo Saxon
common law actions and into 2007 where, in
North Carolina:
1. Assume Bill has met Robin on the Internet.
He portrays himself as a single doctor. After the
tenth date Robin and Bill have sexual relations.
Can Bill’s wife sue Robin? Absolutely!
2. Bill has a signed separation agreement that
says he and his wife can live as if unmarried in all
respects. It is signed, notarized, and drafted by
attorneys. It doesn’t include a third party waiver.
Bill tells Robin they have been legally separated.
She is skittish about the fact that he is separated
until she reads the language from his separation
agreement that says they can live as if they were
not married. And it is, after all, notarized. Feeling
assured, they proceed to have a romantic relationship. Can Bill’s wife sue Robin? Absolutely!
3. Bill’s wife had multiple affairs early on in
their marriage, two of which were with Bill’s best
friends. Bill forgives his friends and his wife. Bill
and his wife have not had sexual relations for 10
years, primarily because Bill’s wife doesn’t find
him physically attractive “in that way” anymore.
Bill has a deep friendship that never reaches the
point of sex with a co-worker but does involve
handholding… Bill then separates from his wife.
Can his wife sue Robin (the co-worker)?
Absolutely!
4. Bill and his wife are swingers. Bill develops
a fondness for another woman, Robin, (not a
swinger) and leaves his wife. Can his wife sue
Robin? Absolutely!
5. When Bill’s wife met Bill, he was married to
her best friend. Robin has an affair with Bill, he
leaves her best friend, and Robin and Bill marry.
Robin’s best friend is financially ruined, emotionally devastated, but decides that moving on is the
healthiest way to get on with her life. Ten years
later, Bill leaves Robin for a girl at the gym. Can
Robin sue her? Absolutely!
Abraham Lincoln once said the best way to get
a bad law repealed is to enforce it strictly. Given
the current state of the law of heartbalm torts,
and the absurd and outrageous potential they
have for abuse, perhaps the legislature will make
their abolition a priority in the future. However,
since we now know that abolition will not occur
in 2007, despite the best efforts of Doyle Early
and others, I am focusing this article on the
defense of such actions. This article does not
address the many reasons that have been given to
abolish the torts.1
This article addresses some of the practical
pointers that should be considered in defending
a case.
Basics
Space limitations and the belief that everyone
reading this article is very fluent in the elements
of the torts prevent me from setting forth the elements of alienation of affections and criminal
conversation.2
Pretrial Pointers
1. Consider hiring an investigator to do a
sweep of property and locations of your client,
and the plaintiff's spouse. Include all cars, homes
and offices. Aside from peace of mind, it will help
determine whether there have been any illegal or
unethical actions taken by plaintiff or his or her
agents.
See TRIANGLES page 2
FAMILY
FORUM
VOL. 27, NO. 4
JUNE 2007
Published by the NCBA’s
Family Law Section
Editor
Susan Gray
Editorial Address
P.O. Box 3688
Cary, NC 27519
SECTION OFFICERS
Chair
John W. Narron
Immediate Past Chair
Richard D. Stephens
Vice Chair
Nancy L. Grace
Secretary
Katherine W. Fisher
Treasurer
Marcia H. Armstrong
Comments
from page 1
Grantham as vice-chair. Nancy and Ray have lots of
experience in Family Law Council matters and will
lead our group enthusiastically and with the kind
of spirit necessary to build consensus on all
important issues. They both have extensive CLE
experience which will only enhance our already
excellent CLE programs.
Our legislative agenda for the next session of
the legislature will be slightly less aggressive given
that it will be a short legislative session. That
should give us extra time to consider whether we
wish to propose substantial changes to our
Alimony Statutes in the 2009 Legislative Term.
As chair, I have felt it appropriate to seek input
from many and develop a consensus of section
members before expressing my own personal
preferences on issues. I have felt that I represented the section and therefore I should not advocate
my personal beliefs when they differed from the
majority of the members. At risk of violating that
rule, I will close out my term as chair of the section by suggesting that the section ought to
address revisions to our Alimony and PSS statutes
in order to provide better service to the citizens of
North Carolina.
I personally believe that it is not just and fair to
the public for there to be such wide diversity of
outcomes in our District Courts from county to
county concerning the entry of PSS awards and
alimony awards. It is clear that the judges in some
judicial districts are quite comfortable awarding
substantial alimony and PSS payments for a term
of one-half the length of the marriage and more.
In other judicial districts, the alimony and PSS
amounts are much less liberal and if awarded at
all will only last for a few years—nothing like onehalf the length of the marriage or more.
The public deserves a more uniform approach
to PSS and Alimony awards and terms. One of the
great frustrations of my practice (both as a litigator and as a mediator) is not being able to tell
someone with any certainty about their alimony
exposure or right to receive alimony or PSS. I personally would like to see alimony and PSS guidelines that speak to both the amount and duration
but most importantly to the duration. It is my hope
that the Family Law Council in the next few years
will address this issue and propose legislation to
provide more guidance to judges and practitioners on these very time-consuming, expensive, and
emotional issues.
It has been a pleasure serving as your chair for
the past year. I look forward to working with
Nancy Grace and Ray Grantham and the other
council members as past chair. I thank each of
you for your support and encouragement and I in
turn encourage each of you to proceed on with
gusto and compassion the very difficult but
rewarding work of being a family lawyer in North
Carolina. ˆ
SECTION COUNCIL
Shelby D. Benton
M. Doug Berry
Cary Close
Katherine W. Fisher
Ray Grantham
Cheryl D. Howell
Ellen A. Kiernan
Patrick S. McCroskey
Charles H. Montgomery
John H. Parker
Arlene M. Reardon
Michelle D. Reingold
Amy E. Simpson
Rose H. Stout
Wiley P. Wooten
©N.C. Bar Association 2007.
No portion of this publication may be reprinted
without permission.
Views and opinions expressed in articles published herein are the authors’ only and are not to be attributed to
Family Forum, the Family Law Section or the NCBA
unless expressly stated. Authors are responsible for the
accuracy of all citations and quotations.
3 August 2005
Triangles
from page 1
2. Find out what type of insurance policies
your client has, or has had, since he or she met
the plaintiff’s spouse. Do not dismiss the possibility of insurance coverage on the grounds that any
alienation must have been intentional and therefore there is no coverage. Read American Mfrs.
Mut. Ins. v. Morgan, 147 N.C. App. 438 (2001),
and see if it is distinguishable from your client’s
policy. Look at the allegations in plaintiff’s complaint. Has the plaintiff made allegations wider
than just criminal conversation or alienation of
affection? Get every copy of your client’s applicable policies and changes to the policy since its
inception. There are some policies that have been
rewritten recently to exclude alienation of affection and criminal conversation. That the policies
were rewritten to provide for specific exclusions
provides for a strong argument that the claims
were at one time included. Consider how long
your client has known plaintiff’s spouse. Have
your client make a claim under the policy if there
is any argument at all that there may be insurance.
Remember that the duty to defend is different from
the duty to indemnify. Your client may have coverage for defense costs but not ensuing damages.
3. If you are going to be working with counsel
for the attorney’s spouse, be very conscientious of
the flow of information. Remember that communication that you have with the plaintiff’s spouse
may be discoverable.
4. Consider discovery of the plaintiff’s spouse’s
cell phones and computer records. While your
client may have been thinking only the two of them
were engaging in a special friendship, look for evidence of other love interests and transgressions
on the part of plaintiff’s spouse.
5. Is there any suspicion that the plaintiff and
spouse are in collusion with each other?
Remember that fraud must be raised as an affirSee TRIANGLES page 3
Triangles
from page 2
mative defense.
6. If in doubt, raise the statute of limitations.
7. Will your client plead the Fifth? Consider the
passage of time in scheduling discovery and the
trial, whether there is an ongoing relationship,
and remember that the statute of limitations for
adultery is two years.
8. Consider an offer of judgment early on,
pointing out the true “gambling” nature of a heart
balm claim. Can any voir dire hope to uncover
whether your jurors are in bad marriages, have
had affairs, been “cheated” on, or will be focused
on general biblical notions that marriage is a contract between just two people, or the fact that there
are no legal remedies for spouses who have to
deal with the effects of gambling, substance abuse,
etc. and can’t sue the ABC store or Harrah’s?
9. Research case law which clarifies our common law cause of action and damages. While the
Court of Appeals can’t abolish the tort, there is
always room for evolution and expansion. Like
North Carolina, the Utah cause of action required
the plaintiff to show that the defendant was the
controlling or effective cause of the alienation.
After citing Heist v. Heist, 46 N.C. App. 521
(1980), the Supreme Court of Utah “clarified” its
enunciation of the plaintiff’s burden of proof in an
alienation case by defining that “controlling
cause” of the alienation of affections means that
the “effect of the defendant’s conduct must have
outweighed the combined effect of all other causes, including the conduct of the plaintiff spouse
and the alienated spouse.” Nelson v. Jacobsen,
669 P.2d 1207, 1219 (1983). (Emphasis added).
In Kansas, the plaintiff had to prove that he or she
was not at fault in causing the other spouse’s affections to stray. Long v. Fisher, 210 Kan. 21, 26,
499 P.2d 1063, 1067 (1972). When it comes to
damages, remember that while there is no measuring stick to set a value on love and affection,
“What was in the store before it was burglarized at
least sets a limit to what could have been burglarized.” Alaimo v. Schwanz, 201 N.W.2d 604, 607
(Wis. 1972).
10. If plaintiff alleges any causes of action
grounded in negligence, remember the defenses
available for such torts. Consider contributory
negligence. Consider whether there have been
other individuals who plaintiff could have sued
and chose not to—should these individuals be
joined as additional tortfeasors such that your
client is not the only one sitting in the defendant’s
chair? Third parties can be joined for contribution
to the extent the tort is not an intentional tort. See
N.C.G.S. § 1B-3(d)(3)(1983).
11. Consider whether plaintiff’s spouse has a
cause of action against other individuals for heartbalm torts. We tend to think about paramours—
but are their in-laws or other individuals that
plaintiff’s spouse believes have played a role in the
demise of the marriage? While it may seem to be
talking out of both sides of the mouth to be pointing out the reasons that these torts should be abolished at the same time as encouraging the filing of
additional claims, the practical side is that rarely,
if ever, does an alienation of affection plaintiff not
have unpleasant consequences to filing the suit.
The sooner these are pointed out, the sooner the
matters can be resolved so everyone can move on
with their lives.
12. Request a bifurcated trial. Read Ward v.
Beaton, 539 S.E.2d 30 (N.C. App. 2000).
Consider Counterclaims, Claims To Be
Raised Against Plaintiff’s Spouse, and
Criminal Statutes
ŒIntrusion of privacy: The tort of invasion of
privacy by intrusion into seclusion has been recognized in North Carolina and is defined as the
intentional intrusion “physically or otherwise,
upon the solitude or seclusion of another or his
private affairs or concerns ... [where] the intrusion would be highly offensive to a reasonable
person.” The kinds of intrusions that have been
recognized under this tort include “physically
invading a person’s home or other private place,
eavesdropping by wiretapping or microphones,
peering through windows, persistent telephoning,
unauthorized prying into a bank account, and
opening personal mail of another.” Toomer, 155
N.C. App. at 479-80, 574 S.E.2d at 90 (quoting
Miller v. Brooks, 123 N.C. App. 20, 26, 472
S.E.2d 350, 354 (1996), and Hall v. Post, 85
N.C. App. 610, 615, 355 S.E.2d 819, 823 (1987),
rev’d on other grounds, 323 N.C. 259, 372,
S.E.2d 711 (1988). Thus, “[g]enerally, there must
be a physical or sensory intrusion or an unauthorized prying into confidential personal records to
support a claim for invasion of privacy by intrusion.” Broughton v. McClatchy Newspapers,
Inc., 161 N.C. App. 20, 29, 588 S.E.2d 20, 27
(2003) (citing Burgess v. Busby, 142 N.C. App.
393, 544 S.E.2d 4 (2001).
ŒLibel/Slander
ŒTrespass
ŒAbuse of process
ŒMalicious Prosecution
ŒAssault/Battery
ŒNegligent infliction of emotional distress
ŒIntentional infliction of emotional distress
ŒFraud as against the plaintiff’s spouse
ŒBreach of promise to marry ( as against
plaintiff’s spouse)
ŒElectronic surveillance, G.S. Section 15A-287
ŒComputer trespass, G.S. Section 14-458
ŒCivil liability for computer trespass, G.S.
Section 1-539.2A
ŒAccessing computers, G.S. Section 14-454
ŒHave there been violations of the Electronic
Communications Privacy Act of 1986, 18 U.S.C.
Section 2510?
ŒCan your client pursue a civil action under 18
U.S.C.A. Section 2520?
ŒHarassing Phone Calls Section 14-196
a. Using Threatening Language on the Phone,
G.S. 14-196(a)(2)
b. Repeated Phone Calls for Harassment, G.S.
14-196(a)(3)
c. Failure to Hang Up for Purposes of
Disrupting Phone Service
d. Making False Statements by Phone to
Harass, G.S. 14-196 (a)(5)
ŒCyber Stalking Section 14-196.3
a. Using Electronic Mail on Electronic
Communication to Threaten to Inflict Bodily Harm
or Property Damage or to Extort Money, G.S. 14196.3(b)(1)
b. Repeatedly Using Electronic Mail or
Electronic Communication for Harassment, G.S.
14-196.3(b)(2)
c. Using Email or Electronic Communications
to Send False Statements, G.S. 14-196.3(b)(3)
ŒStalking Section 14-277.3
ŒFirst Degree Trespass Section 14-159.12
ŒSecond Degree Trespass Section 14-159.13
I have set forth below what I believe to be a
fairly complete list of all alienation of affections
cases from North Carolina appellant since 1913.
The purpose of the list is to help jog memories
about the many issues which may be raised in
these actions. If you are one to begin a sentence
with “I remember a case in which…” the case list
below may be helpful.
1. Misenheimer v. Burris, 360 N.C. 620,
637 S.E.2d 173, N.C. (2006).
The discovery rule applied to husband’s
actions for criminal conversation. Accordingly, the
three-year limitations period governing the action
was tolled until husband discovered wife’s affair
with defendant.
2. Stann v. Levine, 636 S.E.2d 214 (N.C. App.
2006).
Husband’s violations of the Rules of Appellate
Procedure warranted dismissal as his action for
alienation of affections, criminal conversation and
negligent infliction of emotional distress. See
See TRIANGLES page 4
FAMILY FORUM 3
Triangles
from page 3
Judge Geer’s dissent for a discussion of minimum
contacts where the defendant, a Tennessee resident, met and engaged in sexual intercourse in
Asheville, N.C., approximately 10 days after plaintiff and his wife separated.
3. Fox v. Gibson, 176 N.C.App. 554, 626
S.E.2d 841(2006).
The Court of Appeals affirmed the trial court’s
exercise of personal jurisdiction over a Georgia
defendant for criminal conversation where the
defendant sent emails from Georgia to the husband in North Carolina and defendant and plaintiff’s husband engaged in sexual relations in North
Carolina during the marriage. Further, defendant
had numerous telephone conversations with
plaintiff’s husband in North Carolina.
4. McCutchen v. McCutchen, 360 N.C. 280,
624 S.E.2d 620 (2006).
Overruling the case of Pharr v. Beck, 147
N.C. App. 268, the Supreme Court held the threeyear statute of limitations for alienation of affections began to run when the alienation of affections was complete.
5. McComb v. Phelps, 175 N.C.App. 247, 623
S.E.2d 89, Unpublished Disposition, 2005 WL
3470491(2005).
In this case, plaintiff had an affair with defendant, a married man who told plaintiff that he was
single. When plaintiff discovered that he was married and broke up with him, defendant claimed he
was only going to stay with his wife until their
daughter was of age. After defendant’s daughter
turned 21, plaintiff confronted defendant. In
response, defendant hired an attorney to send
plaintiff a letter which threatened an action of
alienation of affection against her. Plaintiff filed
sued against defendant alleging fraud and intentional infliction of emotional distress. While the
fraud claim was abandoned on appeal, the Court
of Appeals held that plaintiff had failed to allege
the elements of a claim of intentional infliction of
emotional distress as the allegations did not rise to
the level of extreme and outrageous conduct.
6. Tran v. Nguyen, 174 N.C.App. 368, 620
S.E.2d 734, Unpublished Disposition, 2005 WL
2850504, N.C.App., Nov 01, 2005.
Defendant obtained an extension of time to
answer plaintiff’s complaint and then submitted a
one-page invocation of the Fifth Amendment.
Plaintiff then filed a motion for sanctions pursuant
to Rule 11 and the trial court found the answer
consisted of the statement denied repeated 15
times and the defendant either knew or should
have known that at least some of the averments in
the verified complaint were true such as “five children were born of the marriage between plaintiff
4 JUNE 2007
and plaintiff’s husband” and the trial court
entered an order striking defendant’s answer and
awarding plaintiff $3,000.00 in attorney’s fees.
The Court of Appeals affirmed the trial court.
7. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d
195 (2004).
Evidence of the loss tuition benefit of plaintiff’s
children on account of him losing his employment
at a college because he could not perform the job
due to mental anguish caused by defendant’s criminal conversation and alienation of plaintiff’s wife
was not too speculative to support an award of
compensatory damages.
8. Hooks v. Eckman, 159 N.C.App. 681, 587
S.E.2d 352 (2003).
Wife and plaintiff, after prevailing in an action
for alienation of affection and criminal conversation brought an action for fraud against the paramour, her husband and her parents alleging that
there was perjured testimony regarding the paramour’s assets which resulted in a decreased damages award. This case discusses extrinsic and
intrinsic fraud and holds that a final judgment
cannot be reversed merely because of the showing
of perjured testimony.
9. Eluhu v. Rosenhaus, 159 N.C.App. 355,
583 S.E.2d 707 (2003).
In this personal jurisdiction case, the
California paramour had insufficient contacts with
North Carolina to subject him to specific in personal jurisdiction in alienation of affection action
where plaintiff was a resident of Tennessee and
defendant had been a citizen and resident of
California since 1999, previously having resided in
Tennessee from 1997 to 1999, and in Raleigh
from 1991 to 1997. The only contact plaintiff’s
wife had with defendant in North Carolina was
during a three-day vacation to Atlantic Beach in
1999 where he saw plaintiff’s wife for a short time
in the presence of her children. Judge Tyson dissents.
10. Dalgewicz v. Langenbach, 157 N.C.App.
716, 580 S.E.2d 97, Unpublished Disposition,
2003 WL 21180922.
Personal jurisdiction case upholding the trial
court’s denial of defendant’s motion to dismiss for
lack of personal jurisdiction where there were
eleven phone calls from defendant, a Florida resident, to plaintiff’s husband in approximately five
months and there were trips by plaintiff to North
Carolina including flying to Paris from Charlotte,
N.C., with plaintiff’s husband.
11. Nunn v. Allen, 154 N.C.App. 523, 574
S.E.2d 35 (2002).
A separation agreement between husband and
wife does not shield a defendant paramour from
liability for criminal conversation based on postseparation sexual relationship with plaintiff’s wife,
even though the agreement contained a provision
providing that each party could live separate and
apart at such place of residence as either may
choose and as if they were fully unmarried.
12. Harris v. Stamey, 151 N.C.App. 747, 567
S.E.2d 467, Unpublished Disposition, 2002 WL
1797186, N.C.App. 2002.
Where defendant in a criminal conversation
and alienation of affection case had sexual intercourse with plaintiff’s wife for the first time after
plaintiff separated from his wife the post-separation conduct was sufficient to establish a claim for
criminal conversation.
13. Norris v. Alexander, 151 N.C.App. 748,
567 S.E.2d 466, Unpublished Disposition, 2002
WL 1798527.
The Court of Appeals affirmed the trial court’s
judgment directing a verdict in favor of defendant
where the evidence of alienation of affection and
criminal conversation included defendant visiting
plaintiff’s wife’s trailer three times after separation, where on one occasion she was making
mints for a wedding and they drank coffee and on
another occasion he was just checking to make
sure she was settled into her trailer all right.
Defendant testified he never hugged or kissed
plaintiff’s spouse and never had sexual intercourse
with her. Plaintiff testified that there were 443 telephone long distance calls over a two-and-a-halfyear period from defendant’s residence; however,
there was no evidence in the record about the
exact time period of the telephone calls or to what
telephone numbers the calls were made. There
was one telephone call between defendant and
plaintiff’s wife where they discussed flowers.
Plaintiff testified that on one occasion he went to
his wife’s trailer and saw defendant laying on the
couch on his back with plaintiff’s wife between his
legs on top of him. They had their clothes on at the
time. The Court of Appeals held that the evidence
of defendant and plaintiff’s wife in a compromising position amounts to no more than evidence
that they were “touching.” A finding of adultery
would be based upon pure speculation.
14. Alexander v. Alexander, 152 N.C.App.
169, 567 S.E.2d 211 (2002).
The defendant wife had sought and obtained
an ex parte domestic violence protective order
which evicted plaintiff from the marital home.
Plaintiff entered into a consent order enjoining
him from assaulting, harassing or intimidating
defendant. Upon the expiration of the consent
order, defendant initiated a complaint and motion
for domestic violence protective order and the
judge issued an ex parte domestic violence protective order enjoining plaintiff from assaulting,
threatening, or abusing defendant. After defendant’s evidence was presented, the court found
that defendant had failed to prove any acts of
domestic violence. Plaintiff subsequently asserted
claims for abuse of process, malicious prosecution and alienation of affections against defendant.
The court granted defendant’s motion for a directed verdict with respect to abuse of process and
alienation of affection, but denied the motion as to
malicious prosecution. The Court of Appeals
reversed the trial court’s granting of defendant’s
motion for judgment notwithstanding the verdict
on the issue of special damages. As the prohibitions stemming from the ex parte domestic violence protective order was sufficient to find that
plaintiff suffered substantial interference resulting
in special damages.
15. Johnson v. Pearce, 148 N.C.App. 199,
557 S.E.2d 189 (2001).
An action for criminal conversation can be
based on post-separation conduct.
16. American Mfrs. Mut. Ins. Co. v.
Morgan, 147 N.C.App. 438, 556 S.E.2d 25
(2001).
The insurer sought a declaratory judgment that
homeowner’s insurer and personal umbrella liability insurer policies did not cover alleged liability for alienation of affections and criminal conversation. The Court of Appeals affirmed the judgment in favor of the insurer because the injuries
were not “bodily injury” within the meaning of the
umbrella policy and the injuries were not caused
by “accident” or “occurrence” within the meaning
of the homeowner’s policy.
17. Pharr v. Beck, 147 N.C.App. 268, 554
S.E.2d 851(2001). Overruled in part by
McCutchen v. McCutchen, 360 N.C. 280, 624
S.e.2d 620 (2006).
A defendant’s ignorance of the existence of the
marriage is in the nature of an affirmative defense
to a claim of alienation of affection; it must be
plead and proven.
18. Ward v. Beaton, 141 N.C.App. 44, 539
S.E.2d 30 (2000).
Where defendant asserted on appeal that there
was a fraudulent scheme between plaintiff and her
husband in filing the claim for alienation of affections based on a consent order entered by plaintiff
and her husband the same day the alienation of
affection complaint was filed, such issue was only
raised on a post trial motion for relief from judgment and could not be presented on appeal. Judge
Walker dissented on the grounds that there was a
question of collusion and connivance between
plaintiff her husband. Further, he did not find any
evidence of aggravated conduct on the part of the
defendant to support punitive damages. He
believed the only aggravated conduct to be defendant consuming alcoholic beverages before
endearing his visits to plaintiff’s spouse’s residence.
19. Cooper v. Shealy, 140 N.C.App. 729, 537
S.E.2d 854 (2000).
The Court of Appeals affirms the trial court’s
determination that there was personal jurisdiction
over defendant in the alienation of affection and
criminal conversation case where the trial court
found that defendant had contacted plaintiff and
plaintiff’s husband by telephone both through
email and telephone calls. Even though the number of contacts was unknown as the defendant
lived in an adjacent state i.e., South Carolina, she
would have a minimal travel burden.
20. Mercier v. Daniels, 139 N.C.App. 588,
533 S.E.2d 877 (2000).
In this case, the plaintiff, a moving van dealer,
sued both the defendant paramour and the paramour’s employer for alienation of affection. The
Court of Appeals held that the employer was not
vicariously liable for the acts of the employee.3
21. Hutelmyer v. Cox, 133 N.C.App. 364, 514
S.E.2d 554 (1999).
An award of $500,000 in punitive damages to
the ex-wife from ex-husband’s current wife for
alienation of affections and criminal conversation
was not excessive as the jury awarded $500,000 in
compensatory damages and therefore could have
awarded up to $1.5 million dollars in punitive
damages. The compensatory damage award was
based on evidence of lost income, life insurance,
pension benefits, deterioration of the sexual relationship between plaintiff and her ex-husband and
plaintiff’s physical and emotional illness subsequent to her ex-husband’s departure from the
marital home.4
22. Horner v. Byrnett, 132 N.C.App. 323,
511 S.E.2d 342 (1999).
Where the jury awarded $1.00 to plaintiff in
compensatory damages and $85,000 in punitive
damages for criminal conversation the punitive
damages award was not excessive as a matter of
law under Hawkins v. Hawkins, 101 N.C. App.
529 (1991).
23. Brown v. Hurley, 124 N.C.App. 377, 477
S.E.2d 234 (1996).
Plaintiff’s allegations in the complaint were not
interposed for an improper purpose sufficient to
support Rule 11 sanctions when husband took the
deposition of defendant and his spouse, served
subpoenas on them and hired a private investigator as these were all reasonable attempts to develop evidence and support of his cause of action.
24. Coachman v. Gould, 122 N.C.App. 443,
470 S.E.2d 560 (1996).
This case affirms summary judgment in favor
of the defendant on claims of alienation of affection and criminal conversation. Plaintiff’s evidence
was to the effect that defendant would call his wife
at the marital residence almost every evening and
talk between 15 and 45 minutes. Plaintiff believed
that based on the tone of their discussion and the
context of the conversation their relationship was
not platonic. In May of 1990, plaintiff told defendant to stop calling his house and defendant stated their calls would continue until plaintiff’s wife
requested that he stopped. Defendant maintained
the phone calls were of a business nature to discuss janitorial contracts between his company and
plaintiff’s wife’s company. One day, plaintiff
observed his wife leaving with defendant in an
automobile. Note prior to plaintiff’s marriage to
his wife, defendant had been in an intimate relationship with plaintiff’s wife, and his relationship
possibly overlapped a period in which plaintiff and
his wife were married. On these facts, summary
judgment for defendant was proper.
25. Hemmings v. Green, 122 N.C.App. 191,
468 S.E.2d 278 (1996).
Plaintiff’s service of a “delayed service of complaint” form did not constitute valid service on
defendant because it did not notify the defendant
of an obligation to appear at a certain place to
answer the complaint.
26. Sharp v. Teague, 113 N.C.App. 589, 439
S.E.2d 792 (1994).
This claim by a former client against her attorney for negligence deals in part with the statute of
limitations and an alienation of affection case.
27. Peake v. Shirley, 109 N.C.App. 591, 427
S.E.2d 885 (1993).
There was evidence sufficient to create a jury
issue as to whether defendant had alienated the
affections of plaintiff’s wife wherein defendant
came to wife’s house to see husband when she
knew wife would not be home, made reservations
at a hotel where she spent over four hours with
plaintiff’s husband and then apologized to plaintiff.
Defendant presented evidence that the parties had
a continuing dispute during their marriage over
plaintiff’s relationship with another man and
defendant also asserted that plaintiff’s husband
abused alcohol throughout their marriage as indicated in plaintiff’s complaint for alimony.
28. Jennings v. Jessen, 103 N.C.App. 739,
407 S.E.2d 264 (1991).
The evidence presented by plaintiff did not
support the compensatory damage award of
$200,000 against defendant. At the hearing on
damages, plaintiff presented the same affidavit that
she had used in her action for support against
plaintiff’s husband. The affidavit merely sets forth
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FAMILY FORUM 5
Triangles
from page 5
her expenses and income as of the time of the
alienation of affections and did not provide any
evidence of income lost by plaintiff as a result of
defendant’s actions. The decision as to compensatory damages was vacated and remanded. The
court affirmed the decision of the trial court to
qualify a financial consultant as an expert witness
regarding damages where the witness had 35
years in the financial field and had been engaged
in financial consulting for five years but his experience was primarily in evaluating investments and
real estate.
29. Shaw v. Stringer, 101 N.C.App. 513, 400
S.E.2d 101 (1991).
In this case, the wife (whose affections that
defendant was alleged to have alienated) was actually married to defendant at one time. Defendant
was the one who introduced her to plaintiff. The
Court of Appeals held the evidence was sufficient
to warrant a punitive damages award where defendant visited plaintiff’s wife in the marital household after being asked not to do so and violated
plaintiff’s conjugal rights.
30. Leonard v. Williams, 100 N.C.App. 512,
397 S.E.2d 321 (1990).
The plaintiff’s wife brought an action for criminal conversation against her husband’s girlfriend.
The defendant girlfriend then brought a third party
claim against the husband alleging libel and slander. In plaintiff’s first lawsuit against the defendant
alleging criminal conversation and alienation of
affections, the third party defendant gave a deposition describing in detail the alleged sexual relations. Counsel stipulated that all objections and
motions to strike would be reserved but for objections to form. Plaintiff voluntarily dismissed the
first suit. Plaintiff then brought the present action
for criminal conversation. Defendant denied the
allegations, counter-claimed against the plaintiff
and brought a third party claim against plaintiff’s
former husband. The third party defendant moved
in limine to exclude from trial the deposition testimony and gave notice of his intent to refuse to
testify based on self incrimination. The trial court
concluded the third party defendant had not
waived his right to invoke his privilege against selfincrimination. The Court of Appeals held that
since any potential prosecution for the offense of
adultery was time-barred as of the time the third
party defendant invoked his privilege against selfincrimination, it could be the basis from invoking
the privilege. The husband could not invoke his
privilege against self-incrimination based on the
claim for punitive damages because there was no
threat of execution against the person. If the trial
court were to determine that defendant was invok-
6 JUNE 2007
ing the privilege based on some other offense and
there was still a threat of prosecution, the privilege
once invoked would also serve to exclude the
prior deposition testimony.
31. Jennings v. Jessen, 326 N.C. 43, 387
S.E.2d 167 (1990).
This reverses the Court of Appeals for the reasons stated in the dissenting opinion of Judge
Greene. Judge Greene’s dissent vacates the order
of the trial court and remands for the making of
new findings because it could not be determined
what evidence the trial court considered in setting
a lump sum amount of $200,000 in compensatory
damages. One could not ascertain the amount for
future losses and whether those losses were
reduced to present value or whether the trial court
gave any credit for the $325,000 property settlement received from her husband prior to trial.
This case cites Dobbs on Remedies for the proposition that where plaintiff has already secured a
property settlement agreement with plaintiff’s
spouse, a credit on the award seems proper.
32. Gray v. Hoover, 94 N.C.App. 724, 381
S.E.2d 472 (1989).
The damages awarded for alienation of affection must be reduced by the amount of damages
awarded for criminal conversation. Also, the
award of punitive damages was supported where
the defendant drove up in front of plaintiff’s business and blew his horn, told defendant he was
having sex with plaintiff’s wife, and unbuttoned
plaintiff’s wife’s blouse and put his hand inside it
in the presence of plaintiff.
33. Darnell v. Rupplin, 91 N.C.App. 349,
371 S.E.2d 743 (1988).
It was a question for the jury as to in which
state the plaintiff’s injury of alienation of affections
occurred where defendant’s involvement with
plaintiff’s husband spans four states: North
Carolina, Virginia, Maryland and Washington, D.C.
34. Gunn v. Hess, 90 N.C.App. 131, 367
S.E.2d 399 (1988).
The defendant did not waive her right to claim
the privilege against self-incrimination by verifying
and filing an answer wherein she made general
denials of the allegations in the complaint.
35. Stikeleather v. Willard, 83 N.C.App. 50,
348 S.E.2d 607 (1986).
In this claim for malicious prosecution, the
defendant had previously filed a civil proceeding
for alienation of affection and criminal conversation against the plaintiff. Following the voluntary
dismissal of defendant’s action, the instance action
was filed. The Court of Appeals held that plaintiff
failed to state a cause of action for malicious prosecution because injury to reputation, embarrass-
ment and loss of work and leisure time did not
meet the special damages requirement of malicious prosecution.
36. Morris v. Bruney, 78 N.C.App. 668, 338
S.E.2d 561 (1986).
Plaintiff’s mother could not maintain an action
for alienation of affections of her son against her
neighbor.
37. Cannon v. Miller, 71 N.C.App. 460, 322
S.E.2d 780 (1984), 313 N.C. 324, 327 S.E.2d 888
(1985).
In this case, the Court of Appeals attempted to
abolish the causes of action for criminal conversation and alienation of affection, and the North
Carolina Supreme Court reversed the Court of
Appeals.
38. Chappell v. Redding, 67 N.C.App. 397,
313 S.E.2d 239 (1984).
In this case, where plaintiff’s wife and defendant were alone together for two hours at the
employer’s motor home wherein the lights were
dimmed for one hour, the evidence was insufficient to make out a case of criminal conversation.
Also, there were no aggravating circumstances to
permit the submission of punitive damages issue
on the alienation of affections claim. Defendant
counterclaimed for invasion of privacy and intentional infliction of emotional distress and received
a dollar in actual damages and a dollar in punitive
damages.
39. Casey v. Grice, 60 N.C.App. 273, 298
S.E.2d 744 (1983).
Alienation of affection case where Defendant
appealed from an order directing him to answer
discovery and to submit to oral deposition. The
order was interlocutory and nonappealable.
40. Scott v. Kiker, 59 N.C.App. 458, 297
S.E.2d 142 (1982).
Plaintiff’s own infidelity did not bar a recovery
for criminal conversation. It was a merely a factor
to reduce the damages.
41. Heist v. Heist, 46 N.C.App. 521, 265
S.E.2d 434 (1980).
That all of the contacts between plaintiff’s husband and the defendant were initiated by plaintiff’s
husband was no defense to an action for alienation of affections. Defendant engaged in wrongful
conduct by allowing plaintiff’s husband unlimited
access to her residence.
42. Byrd v. Hodges, 44 N.C.App. 509, 261
S.E.2d 269 (1980).
This 1980 case allowed defendant to invoke
the privilege against self-incrimination.
43. Edwards v. Edwards, 43 N.C.App. 296,
259 S.E.2d 11 (1979).
A parent cannot recover from another parent
for alienating the affections of their child.
44. Golding v. Taylor, 23 N.C.App. 171, 208
S.E.2d 422 (1974).
It was not error to allow into evidence defendant’s other extramarital conquests.
45. Roth v. Parsons, 16 N.C.App. 646, 192
S.E.2d 659 (1972).
Minor children had no cause of action against
defendant for alienating the affections of their
father or their mother.
46. Sebastian v. Klutz, 6 N.C. App. 2d., 170
S.E.2d 104 (1969).
The consent and apparent willingness on the
part of the plaintiff’s husband to be seduced was
not a defense to an alienation of affection action
against defendant. In this case, plaintiff’s husband
had been unfaithful to his married spouse with
another woman and may have also had a drinking
problem. The jury instructions with respect to
maintenance and support are not clear intended
to confuse the jury on the question of loss of support. The jury should have been instructed that it
was for them to determine based on all the evidence presented, including the separation agreement, whether the plaintiff had or would sustain
any loss of support.
47. Warner v. Torrence, 2 N.C.App. 384, 163
S.E.2d 90 (1968).
Where the record discloses a marriage in
1933, that in 1953 the husband and wife began to
drift apart and there was constant bickering and
fighting until the separation in 1966. The trial
court properly sustained the motion to non-suit a
cause of action for alienation of affections.
48. Cockman v. Powers, 248 N.C. 332, 103
S.E.2d 292 (1958).
Evidence sustained a verdict for the plaintiff
and action for alienation of affections and criminal
conversation although only one issue of actual
damages was submitted.
49. Bishop v. Glazener, 245 N.C. 592, 96
S.E.2d 870 (1957).
In this case the plaintiff had been sued his
father-in-law for alienation of his wife’s affections.
Here the fact that plaintiff’s wife visited her father
daily and moved into his apartment and has since
lived with him was not sufficient to show that he
alienated her affections from plaintiff. Note: plaintiff’s wife only left the home after plaintiff ordered
her father to leave his home.
50. Hardison v. Gregory, 242 N.C. 324, 88
S.E.2d 96 (1955).
In this case the husband filed suit against the
co-administrator of defendant’s estate for criminal
conversation and alienation of affection. The Dead
Man’s statute did not prohibit plaintiff from testifying about his observations of his wife’s conduct
with the deceased.
51. Irvin v. Olsen, 241 N.C. 310, 84 S.E.2d
925 (1954).
Plaintiff failed to state a cause of action when
she sought to set aside a deed on the grounds that
it was made with the fraudulent intent to defeat her
actions for alienation of affection.
52. Henson v. Thomas, 231 N.C. 173, 56
S.E.2d 432 (1949).
Minor children cannot maintain an action
against a third party for disrupting their family and
depriving them of the affections of their parents.
53. Knighten v. McClain, 227 N.C. 682, 44
S.E.2d 79 (1947).
A wife may maintain an action for damages for
criminal conversation with plaintiff’s husband.
54. Ridenhour v. Miller, 225 N.C. 543, 35
S.E.2d 611 (1945).
Plaintiff has been sued by plaintiff’s wife’s sister for alienation of affection. Their conduct was
insufficient to show that the alienation of affections
was brought about wrongfully and maliciously.
Parents and other relations occupy a different
position from strangers and dealing with the marital rights of a member of the family.
55. Barker v. Dowdy, 224 N.C. 742, 32
S.E.2d 265 (1944).
Evidence was insufficient to support a verdict
for criminal conversation.
56. Barker v. Dowdy, 223 N.C. 151, 25
S.E.2d 404 (1943).
Defendant demurred on the grounds that the
plaintiff’s complaint did not state a cause of action.
On appeal, the Court of Appeals affirmed the judgment overruling the demurrer. Evidence that
plaintiff continued to live with his wife with knowledge of the adulterous relations between defendant and plaintiff’s wife did not constitute connivance so as to be a defense to an action for criminal conversation or alienation of affections.
57. Bryant v. Carrier, 214 N.C. 191, 198 S.E.
619 (1938).
An action for alienation of affections where
defendant alleged he was nonconposmentis and at
one time defendant had been declared insane.
Plaintiff’s husband was entitled to prove that
defendant had legal capacity to commit alleged
acts with the elements of aggravation necessary to
justify an award of punitive damages.
58. Johnston v. Johnston, 213 N.C. 255, 195
S.E. 807 (1938).
This case affirms plaintiff’s judgment for alienation of affections as against her mother-in-law.
The jury was properly instructed regarding
whether the defendant was motivated by natural
parental regard versus malice towards the plaintiff.
59. Taylor v. Taylor, 210 N.C. 837, 188 S.E.
95 (1936).
There was no error in dismissing the action by
plaintiff’s wife against her mother-in-law and
father-in-law where the evidence failed to establish
liability.
60. Chestnutt v. Sutton, 204 N.C. 476, 168
S.E. 680 (1933).
An action by plaintiff against defendant for
alienating his wife’s affections. The wife was competent as a witness to testify that she had indeed
had sexual relations with her husband since separation and that she had not been in a compromising position with the defendant as testified to by
other witnesses.
61. Hankins v. Hankins, 202 N.C. 358, 162
S.E. 766 (1932).
This case deals with the plaintiff’s wife alienation of affection claim against her in-laws.
62. Townsend v. Holderby, 197 N.C. 550,
149 S.E. 855 (1929).
In this action by plaintiff’s wife against her inlaws the court held that the conduct of a parent or
near relative must be malicious to authorize
recovery for alienation of affections.
63. Hyatt v. McCoy, 194 N.C. 760, 140 S.E.
807 (1927).
Affirming there was evidence that the wife’s
affections had been alienated.
64. Cottle v. Johnson, 179 N.C. 426, 102 S.E.
769 (1920).
The jury could not award punitive damages in
action for alienation for affection unless plaintiff’s
husband showed circumstances of aggravation in
addition to the malice implied by law which was
necessary to recover compensatory damages. It
was error to charge the jury that they could award
punitive damages without requiring a finding that
defendant acted from personal ill-will towards
plaintiff or from reckless indifference to plaintiff’s
rights where the evidence was conflicting as to
whether defendant induced and enticed plaintiff’s
spouse to leave or whether plaintiff’s spouse left
because of his improper treatment of her.
65. Powell v. Strickland, 163 N.C. 393, 79
S.E. 872 (1913).
In an action by husband for alienation of affections alleging adultery, the evidence was sufficient
to sustain a finding of adultery where defendant a
married man with bad character had been seen at
the home of plaintiff’s spouse in the absence of
plaintiff. Further, that one day plaintiff’s spouse
had left his store out the back door and the defendant did not take the stand to explain these “suspicious” circumstances. ˆ
Endnotes
1. For such a discourse, see the Court of
See TRIANGLES page 10
FAMILY FORUM 7
8 JUNE 2007
Case Summaries
April-May 2007
B Y M ICHAEL W ELLS J R .
County of Durham DSS, ex rel. v.
Charles, Decided North Carolina Court of
Appeals, April 3, 2007, No. 06-307. On Sept. 23,
1997, defendant father executed a “Father’s
Acknowledgement of Paternity” with respect to a
minor child born in 1988. On Oct. 3, 1997, the
court entered an order of paternity establishing
that the defendant was the father of the child. On
Sept. 23, 1997, defendant executed a voluntary
support agreement and order, agreeing to make
monthly child support payments for the minor
child, and an order was entered in October
1997. On Feb. 21, 2005, the plaintiff mother
made statements indicating that defendant was
not the father of the child. On March 4, 2005,
defendant filed a motion pursuant to N.C.R.Civ.P.
60(b)(6) and N.C.G.S. Section 110-32, seeking
to set aside his acknowledgement of paternity
and seeking a paternity test. The trial court
denied defendant’s motion pursuant to Rule
60(b)(b), but granted defendant relief under
N.C.G.S. Section 110-132. The court further
ordered the defendant, mother and minor child
to submit to a paternity test. Plaintiff moved for a
temporary stay, for a writ of certiorari and for a
writ of supersedeas. The Court of Appeals, on
Oct. 17, 2005, granted a temporary stay of the
trial court’s order, and, on Nov. 3, 2005, the
Court allowed plaintiff’s petitions for writs of
certiorari and supersedeas. Plaintiff contended
the trial court erred in granting relief to defendant pursuant to N.C.G.S. Section 110-132.
The Court of Appeals reversed the trial
court’s ruling granting defendant’s motion pursuant to N.C.G.S. Section 110-132 and remanded
the matter to the trial court for an order consistent with the Court’s opinion. The Court further
reasoned that N.C.G.S. Section 110-132 did not
provide a basis for defendant to revoke his
acknowledgement of paternity, separate and
apart from the provisions under Rule 60(b). The
Court further reasoned the one-year time period
for seeking relief under Rule 60(b)(1),(2) and
(3) applies to challenges under N.C.G.S. Section
110-132. Since defendant’s motion was filed
over seven years after the filing of his acknowledgement of paternity, his claims were barred
and should have been dismissed by the trial
court. The Court noted that Rule 60(b)(6) does
not contain the one-year requirement. However,
the trial court dismissed defendant’s claim under
this provision, and defendant failed to preserve
this claim on appeal.
Spouse’s Elective Share
In the Matter of: the Estate of Josephine
Hood Archibald (Edwards), Decided North
Carolina Court of Appeals, May 15, 2007, No. 04E-933. Decedent and appellee married on Oct.
6, 2001, and they separated the following year
for approximately six months. During the separation, decedent and appellee prepared a separation agreement containing a provision wherein
they waived inheritance rights from each others’
estates. The separation agreement was filed with
the Register of Deeds office in Cumberland
County, North Carolina on Sept. 30, 2002. The
next day, however, the couple reconciled, and
they lived together until the decedent’s death.
Decedent executed a will about seven years
before her marriage to appellee. Appellant is a
devisee under the will, but appellee is not.
Decedent died testate on March 19, 2004. On
Nov. 24, 2004, decedent’s will was admitted to
probate, and, on the same day, appellee applied
for and was granted a one-year spousal
allowance. On May 24, 2005, appellee elected a
spousal share of his wife’s estate. On Dec. 5,
2005, the Assistant Clerk of Court entered an
Patron:
25
th ANNIVERSARY
PATRON CAMPAIGN
1982 - 2007
order denying appellant’s motion to deny
appellee an elective share on the grounds that
the time for appeal had expired eight months
earlier. The Assistant Clerk also denied appellant’s motion to deny appellee an elective share
on the grounds that appellee and decedent’s reconciliation had canceled and rescinded the provisions of the separation agreement waiving
interest in each other’s estates. Appellant
appealed from the Clerk’s order to the Superior
Court, which entered an order affirming the
Assistant Clerk’s order on March 28, 2006.
The Court of Appeals held that the waiver of
inheritance rights was rescinded and canceled by
the reconciliation of decedent and appellee, and
the Court affirmed the trial court’s order. The
Court reasoned that reconciliation of a married
couple serves to rescind and nullify a separation
agreement’s waiver of estate rights. Further,
appellant’s appeal could not stand, with respect
to the one-year statutory allowance issue,
because appellant did not file an appeal within
the 10 days required by the statute. Accordingly,
the motion to set aside the one-year statutory
allowance was correctly denied as a procedural
matter because appellant appealed more than
eight months after filing the appeal. ˆ
WELLS IS AN ASSOCIATE WITH WELLS
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patronus, a protector, defender]
1: A Bar Association member
who, through generous contributions, makes it possible for
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saint 3: a very fine lawyer and
human being.
e
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Triangles
from page 7
Appeals opinion in Cannon v. Miller, and other
cases discussing the harm of an alienation case to
the family unit. Reason includes the harm to children (who may be required) to testify to details of
their family life in open court. O’Neil v.
Schuckardt, 733 P.2d 693, 698 (Idaho 1986);
Nguyen, Hey, That’s My Wife, 68 Mo. L. Rev. 241
(Winter 2008).
2. For an excellent overview, see Elliot, North
Carolina Prima Facie Tort Manual (3d. ed.
2006).
3. Although this case has been cited as leaving
open the possibility of employer liability for heartbalm torts, it is hard to see how the possibility of
employer liability has any sound legal authority,
even in the cases citing the misguided rationale
which led to the development of these common
law torts. Moreover, the Jackson v. Righter, 891
P.2d 1387 (Utah 1995) opinion cited by the
Mercier plaintiff led to an outcome of no employer liability. Indeed, if there was no employer liability under the facts of Jackson, it is difficult to see
how there could ever be a basis for employer liability. In Jackson, the employer’s awareness of a
romantic relationship between two of its employees did not give the employer sufficient knowledge
to anticipate a claim for alienation of affection. A
supervisor promoting his subordinate, authorizing
her to record unworked overtime hours, and
requiring her to spend a great deal of time in his
office and accompany him on business trips simply did not give the employer a reason to foresee
that the acts would alienate the subordinates affections toward her husband. The case goes on to
note that policy considerations preclude imposition of a duty upon employers to police private
conduct of their employees for protection of the
employees spouses. Employers have no duty to
monitor romantic relationships among their
employees as employers do not even have a duty
to determine the marital status of their employees.
Id. Further, there is no evidence that more rules or
a different supervisor would have prevented the
situation. Id. Luckily, the dicta in Mercier has
been widely dismissed by North Carolina trial
courts, and I am aware of no North Carolina cases
where a plaintiff has survived a 12(b)(6) motion
against an employer. Perhaps our superior court
judges realize that imposing employer liability for
policing such personal matters would simply put
employers that investigated, policed, or took
proactive measures trying to avoid such suits at
grave risk for intrusion of privacy claims and
harassment claims by their employees.
4. Note in this case defendant claimed that
plaintiff’s spouse had told her that he was separat-
ed from plaintiff and she believed that he had
moved out of the marital home and into an apartment.