Appeal by plaintiff from judgment entered 31 July 2001 by
Judge Jerry Braswell in Superior Court, Duplin County. Heard in
the Court of Appeals 12 June 2002.
Bruce H. Robinson, Jr. for plaintiff-appellant.
Fredric C. Hall for defendant-appellee.
McGEE, Judge.
Arnold Norris (plaintiff) filed a complaint against James T.
Alexander (defendant) alleging alienation of affections and
criminal conversation.
Evidence for plaintiff at trial before a jury tended to show
the following. Defendant testified that he had been married to
Jerri Alexander (Mrs. Alexander) for forty-four years. Defendant
first met plaintiff's wife, Reba Wood (Ms. Wood), in November 1962.
At that time both defendant and Ms. Wood worked at a J.P. Stevens
textile plant and they became good friends. Ms. Wood separated
from plaintiff on 10 September 1996 and moved into a trailer.
Defendant testified that he visited Ms. Wood's trailer three times,
including once in late September or early October 1996 for aboutfifteen to twenty minutes "just to see that she was settled in and
was all right." Defendant stated that he remembered Ms. Wood's
daughter also being there on that occasion. Defendant visited Ms.
Wood another time just prior to Thanksgiving 1996. On that
occasion, defendant testified that Ms. Wood "was making some mints
for a wedding and I sat there and drank some coffee and she made
the mints; stayed a while, we chatted and I left." Defendant again
visited Ms. Wood on 31 December 1996. Defendant testified that he
never hugged or kissed Ms. Wood and never had sexual intercourse
with her.
Mrs. Alexander, defendant's wife, testified that on the
evening of 31 December 1996 she was looking for her husband and
called plaintiff to see where Ms. Wood was because she "had [a]
little inkling that something -- that [defendant and Ms. Wood]
might be together." Mrs. Alexander and plaintiff went to Ms.
Wood's trailer where they saw defendant's truck parked. Plaintiff
went to the trailer and "busted the door down." Mrs. Alexander
followed plaintiff into the trailer where she saw Ms. Wood coming
towards the door. Mrs. Alexander testified that Ms. Wood and
defendant were fully clothed and defendant was sitting on the
middle of the couch. She denied that she and plaintiff found
defendant and Ms. Wood in a compromising position. Mrs. Alexander
testified that plaintiff grabbed defendant and started shaking and
choking him. Thereafter, Mrs. Alexander and plaintiff left.
Mrs. Alexander testified that about a year earlier, she
discovered that defendant had been calling Ms. Wood. Mrs.Alexander stated that she overheard some of the conversations
between defendant and Ms. Wood, and during one conversation she
particularly remembered, Ms. Wood and defendant had talked about
their flowers. Defendant and Mrs. Alexander lived in Wallace and
owned a lake house at White Lake.
Plaintiff testified that he and Ms. Wood were married on 19
May 1990 and separated for the third time on 10 September 1996,
when Ms. Wood left him. They were later divorced. Plaintiff
further testified that on the night of 31 December 1996 he went
into Ms. Wood's trailer and saw defendant "laying on the couch, on
his back, [Ms. Wood] between his legs, on top of him and [Ms. Wood]
came off that couch and met me middle-way the floor[.]" Plaintiff
stated that both Ms. Wood and defendant had their clothes on and
that he did not see them hugging or kissing. Plaintiff testified
that after some "heated words" he and Mrs. Alexander left.
Plaintiff testified that telephone records from defendant's
residence at White Lake showed that 443 long distance telephone
calls were made from the White Lake residence over a two and one-
half year period.
At the close of plaintiff's evidence, defendant moved for a
directed verdict, which the trial court granted in a judgment
entered 31 July 2001. Plaintiff appeals from this judgment.
Defendant argues that plaintiff failed to include in his brief
to our Court a statement of the question presented for our review,
in violation of N.C.R. App. P. 28(b)(2). We agree; however, we
elect to exercise our discretion pursuant to N.C.R. App. P. 2 andaddress the merits of plaintiff's appeal.
Plaintiff argues that the trial court erred in granting a
directed verdict for defendant because there was sufficient
evidence for plaintiff's claims to be submitted to the jury. "On
a defendant's motion for directed verdict, the trial court must
determine whether the evidence, when considered in the light most
favorable to the plaintiff, is sufficient to take the case to the
jury." Ward v. Beaton, 141 N.C. App. 44, 47, 539 S.E.2d 30, 33
(2000), cert. denied, 353 N.C. 398, 547 S.E.2d 431 (2001) (citing
N.C.R. Civ. P. 50(a); Hutelmyer v. Cox, 133 N.C. App. 364, 369, 514
S.E.2d 554, 558 (1999), appeal dismissed, 351 N.C. 356, 542 S.E.2d
211 (2000)). "Where the trial court finds there is more than a
scintilla of evidence supporting each element of the plaintiff's
claim, the motion for directed verdict should be denied." Id.
(citing Norman Owen Trucking v. Morkoski, 131 N.C. App. 168, 172,
506 S.E.2d 267, 270 (1998)).
Although causes of action for alienation of affections and
criminal conversation are controversial, our Supreme Court has
stated that causes of actions for both torts still exist in North
Carolina. See Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888
(1985). "Only our General Assembly and Supreme Court have the
authority to abrogate or modify a common law tort." Johnson v.
Pearce, 148 N.C. App. 199, 202, 557 S.E.2d 189, 191 (2001)
(citations omitted).
A. Alienation of Affections
To establish a cause of action for alienation of affections,plaintiff is required to produce evidence of three elements: "(1)
that there was a marriage with love and affection existing between
the husband and wife; (2) that love and affection was alienated;
and (3) the malicious acts of the defendant produced the loss of
that love and affection."
Pharr v. Beck, 147 N.C. App. 268, 271,
554 S.E.2d 851, 854 (2001) (footnote omitted) (citing
Gray v.
Hoover, 94 N.C. App. 724, 727, 381 S.E.2d 472, 473,
disc. review
denied, 325 N.C. 545, 385 S.E.2d 498 (1989)). The malicious acts,
in the context of an alienation of affections claim, refer to acts
constituting "'"unjustifiable conduct causing the injury complained
of."'"
Heist v. Heist, 46 N.C. App. 521, 523, 265 S.E.2d 434, 436
(1980) (citations omitted). "[A]n alienation of affection claim
must be based on pre-separation conduct, and post-separation
conduct is admissible only to the extent it corroborates pre-
separation activities resulting in the alienation of affection."
Pharr, 147 N.C. App. at 273, 554 S.E.2d at 855 (footnote omitted).
Plaintiff argues he met his burden of proof as to all three
elements of the cause of action. Defendant concedes in his brief
that plaintiff met his burden of proof regarding the first two
elements of the cause of action; however, defendant argues that
there was no evidence presented at trial tending to show any
malicious acts of defendant which produced the alienation of
affections. Plaintiff argues, however, that the evidence of 443
long distance telephone calls made from defendant's White Lake
residence over a two and one-half year period, coupled with
evidence that plaintiff found defendant and Ms. Wood together afterplaintiff and Ms. Wood separated, is sufficient evidence that
defendant intended to break up the marriage of plaintiff and Ms.
Wood.
We disagree that the telephone calls, the only evidence in the
record regarding pre-separation conduct by defendant, evince
wrongful and malicious acts by defendant. There is no evidence in
the record indicating in which two and one-half year period the
telephone calls were made, nor does the record show to what
telephone number or numbers these telephone calls were made. The
only evidence as to the nature of one telephone call between
defendant and Ms. Wood was testified to by Mrs. Alexander, who said
that defendant and Mrs. Wood were discussing their flowers. This
hardly rises to the level of "intonation of improper conduct by
defendant" as required in
Coachman v. Gould, 122 N.C. App. 443,
448, 470 S.E.2d 560, 564 (1996), nor does it "rise to the level of
malicious conduct by defendant, designed to alienate the affections
of" Ms. Wood.
Id.
The trial court did not err in granting a directed verdict for
defendant on plaintiff's alienation of affections claim because
plaintiff failed to produce evidence to establish the third element
of the cause of action.
B. Criminal Conversation
"Criminal conversation is adultery."
Scott v. Kiker, 59 N.C.
App. 458, 461, 297 S.E.2d 142, 145 (1982). The elements of the
tort are (1) actual marriage between the spouses and (2) sexual
intercourse between defendant and the plaintiff's spouse during themarriage.
Johnson, 148 N.C. App. at 200-01, 557 S.E.2d at 190. A
claim for criminal conversation can be based upon post-separation
conduct.
Id. at 201, 557 S.E.2d at 191.
In the case before us, plaintiff argues that although he did
not produce direct evidence of sexual intercourse between defendant
and Ms. Wood, "there is sufficient circumstantial evidence for a
reasonable person to conclude that the parties, during the period
of time that they engaged in frequent communication, and then,
being found together in the same trailer at night, certainly
provides a circumstantial evidentiary foundation for criminal
conversation." Defendant contends that plaintiff failed to produce
any evidence that defendant and Ms. Wood engaged in sexual
intercourse.
Adultery is rarely proven by direct evidence.
In Re Estate of
Trogdon, 330 N.C. 143, 148, 409 S.E.2d 897, 900 (1991). When
attempting to prove adultery 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.
Id. "Thus, 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, 122 N.C. App. at 447, 470 S.E.2d at 563.
In this case, the circumstantial evidence plaintiff argues
proves adultery amounts only to mere suspicion and conjecture. Therecord reveals no evidence tending to show that either defendant or
Ms. Wood had adulterous inclinations. Defendant and Ms. Wood had
been good friends since 1962, well before Ms. Wood married
plaintiff. Defendant testified that he visited Ms. Wood on three
occasions following her separation from plaintiff. No evidence
from defendant's first two visits remotely indicates that he and
Ms. Wood engaged in sexual intercourse. In fact, the evidence
shows only that on the first visit defendant stayed for fifteen to
twenty minutes and that Ms. Wood's daughter was also present, and
on the second occasion, Ms. Wood made mints while defendant drank
coffee and they visited.
Even considering the evidence regarding defendant's third
visit on 31 December 1996 in a light most favorable to plaintiff,
plaintiff's testimony that he found defendant and Ms. Wood in a
compromising position amounts to no more than evidence they were
touching. This evidence does not support a conclusion that
defendant and Ms. Wood were engaging in, or had engaged in, sexual
intercourse; in fact, plaintiff also testified that defendant and
Ms. Wood were fully clothed and were not kissing or hugging when
plaintiff unexpectedly entered the trailer. Both defendant and
Mrs. Alexander denied that defendant and Ms. Wood were in a
compromising position. Defendant refuted on the record that he and
Ms. Wood had engaged in adultery. He denied they had ever hugged,
kissed or had sexual intercourse. A finding that defendant and Ms.
Wood committed adultery in this case would be based upon pure
speculation and therefore the trial court did not err in directinga verdict for defendant on plaintiff's claim of criminal
conversation.
Plaintiff's assignment of error is overruled. We affirm the
trial court's judgment directing a verdict in favor of defendant.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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