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PATRICIA MCCUTCHEN v. DEBORAH T. MCCUTCHEN
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of
a divided panel of the Court of Appeals, 170 N.C. App. 1, 612
S.E.2d 162 (2005), affirming an order entered on 6 August 2003 by
Judge Narley L. Cashwell in Superior Court, Wake County. Heard
in the Supreme Court 17 October 2005.
The Mueller Law Firm, P.A., by Colby L. Hall, for plaintiff-
Tharrington Smith, L.L.P., by Lynn P. Burleson and Jill
Schnabel Jackson, for defendant-appellee.
The issue is whether the accrual of a cause of action for
alienation of affections occurs as a matter of law on or before
the date a married couple separates. We hold the claim accrues
whenever alienation is complete, regardless of the date ofseparation, and that the determination of when alienation occurs
is generally a question of fact for the jury.
Plaintiff and Byron McCutchen (Byron) married on 1 June
1968 and had three children between 1969 and 1980. The couple
separated on 9 September 1998 and divorced on 30 May 2002.
Before the couple's separation, Byron met defendant, now his
wife, and began a sexual relationship with her. Defendant admits
she had actual knowledge of Byron's marriage when she entered the
On 25 April 2003, plaintiff filed suit against defendant
asserting causes of action for alienation of affections and
criminal conversation. In her complaint, plaintiff alleged
defendant engaged in an adulterous relationship with Byron before
the couple's divorce. Plaintiff further alleged defendant
wrongfully and maliciously destroyed her marriage to Byron. She
claimed defendant continued her relationship with Byron despite
knowing that Byron and plaintiff were engaged in counseling and
reconciliation efforts. Plaintiff asserted she and Byron
purchased a car titled in both of their names in May 1999 using
funds from a joint account and continued managing their finances
together until October 2001. In addition, plaintiff maintained
that on at least three occasions following the date of separation
Byron expressed his desire to return to the marriage and asked
plaintiff to refrain from taking legal action while they were
attempting to reconcile. Plaintiff contended Byron told her at
their last joint counseling session in February 2001 that he wasnot heading toward divorce, but approximately two weeks later
informed her the marriage was over.
Defendant responded, asserting the statute of limitations as
a bar to plaintiff's alienation claim, and filed a motion for
summary judgment. The trial court granted summary judgment for
plaintiff on her criminal conversation claim, reserving damages
for a jury determination, but granted summary judgment for
defendant on plaintiff's alienation claim after concluding it was
barred by the statute of limitations. A divided panel of the
Court of Appeals determined plaintiff's interlocutory appeal was
proper and affirmed summary judgment in favor of defendant,
holding plaintiff's cause of action for alienation accrued by the
date of separation and was thus barred by the statute of
limitations. McCutchen v. McCutchen, 170 N.C. App. 1, 4, 6-7,
612 S.E.2d 162, 164, 166 (2005). Although convinced plaintiff's
interlocutory appeal was not properly before the court, the
dissent argued plaintiff's alienation claim was timely filed.
Id. at 9, 612 S.E.2d at 167 (Tyson, J., dissenting). For reasons
detailed below, we affirm the majority's holding that plaintiff
is entitled to an immediate appeal but reverse the ruling that
plaintiff's claim is barred by the statute of limitations.
I. INTERLOCUTORY APPEAL
 We first consider whether the Court of Appeals properly
exercised appellate jurisdiction. A final judgment is one which
disposes of the cause as to all the parties, leaving nothing to
be judicially determined between them in the trial court. Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377,
381 (1950). Any order resolving fewer than all of the claims
between the parties is interlocutory. Dep't of Transp. v. Rowe,
351 N.C. 172, 174, 521 S.E.2d 707, 708-09 (1999). Interlocutory
orders are appealable before entry of a final judgment if (1) the
trial court certifies there is no just reason to delay the
appeal of a final judgment as to fewer than all of the claims or
parties in an action or (2) the order 'affects some substantial
right claimed by the appellant and will work an injury to him if
not corrected before an appeal from the final judgment.' Id. at
175, 521 S.E.2d at 709; see also N.C.G.S. §§ 1-277; 1A-1, Rule
54(b); 7A-27 (2005).
In the present case, the issue of damages for plaintiff's
criminal conversation claim remained unresolved when the trial
court granted summary judgment for defendant on the alienation of
affections claim. Plaintiff's appeal is therefore interlocutory.
Since the trial court did not certify its decision, we must
decide whether plaintiff has a substantial right that would be
lost absent immediate review. Both plaintiff and defendant agree
this case involves a substantial right warranting immediate
review; however, acquiescence of the parties does not confer
subject matter jurisdiction on a court.
The parties assert the substantial right at stake is the
right to have the same jury hear plaintiff's claims for
alienation of affections and criminal conversation. [B]ecause
the two causes of action and the elements of damages here are soconnected and intertwined, only one issue of . . . damages should
[be] submitted to the jury. Sebastian v. Kluttz, 6 N.C. App.
201, 220, 170 S.E.2d 104, 116 (1969). If decided by separate
juries, any recovery for one is reduced by that of the other.
Gray v. Hoover, 94 N.C. App. 724, 731, 381 S.E.2d 472, 476, disc.
rev. denied, 325 N.C. 545, 385 S.E.2d 498 (1989). In light of
this legal interdependence, the same jury should determine
damages for both claims. This right will be lost if plaintiff
must wait to appeal summary judgment on her alienation claim
until the issue of damages for criminal conversation is resolved.
Accordingly, the interlocutory order granting summary judgment on
plaintiff's alienation claim is subject to appeal.
II. ACCRUAL OF ALIENATION OF AFFECTIONS CLAIM
 We next turn to the issue of when a cause of action for
alienation of affections accrues. To establish a common law
claim for alienation, a plaintiff must prove '(1) [t]hat [she
and her husband] were happily married, and that a genuine love
and affection existed between them; (2) that the love and
affection so existing was alienated and destroyed; [and] (3) that
the wrongful and malicious acts of the defendant produced and
brought about the loss and alienation of such love and
affection.' Litchfield v. Cox
, 266 N.C. 622, 623, 146 S.E.2d
641, 641 (1966) (citation omitted). Although the plaintiff must
introduce evidence of a valid marriage, as well as marital love
and affection, the plaintiff need not prove that [her] spouse
had no affection for anyone else or that [the] marriage waspreviously one of 'untroubled bliss.' Brown v. Hurley
, 124 N.C.
App. 377, 380, 477 S.E.2d 234, 237 (1996); see also
Reynolds, Lee's North Carolina Family Law
§ 5.46(A), at 394 (5th
As a general rule, the statute of limitations begins to run
once a cause of action accrues. Wilson
, 276 N.C. at 214, 171
S.E.2d at 884. Section 1-52(5) of the General Statutes requires
a plaintiff to file suit within three years [f]or criminal
conversation, or for any other injury to the person or rights of
another, not arising on contract and not hereafter enumerated.
N.C.G.S. § 1-52(5) (2005). Because alienation of affections is
not specifically referenced in the statute, this three-year
limitations period applies
Accrual of an alienation claim occurs when the wrong is
complete. Wilson v. Crab Orchard Dev. Co.
, 276 N.C. 198, 214,
171 S.E.2d 873, 884 (1970).
The wrong in an alienation of
affections case is the actual alienation of the spouse's
affections by a third party. Alienation connotes the
destruction, or serious diminution, of the love and affection of
the plaintiff's spouse for the plaintiff. Charles E. Daye &
Mark W. Morris, North Carolina Law of Torts
§ 11.22.2, at 106 (2d
ed. 1999). This diminution or destruction often does not happen
all at once. 'The mischief is a continuing one . . . .'
Cottle v. Johnson
, 179 N.C. 426, 431, 102 S.E. 769, 771 (1920)
. It is only after the diminution or, when
applicable, the destruction of love and affection is completethat plaintiff's cause of action accrues and the statute of
limitations begins to run. Saunders v. Alford
, 607 So. 2d 1214,
1215 (Miss. 1992); see also
41 Am. Jur. 2d Husband and Wife
241, at 214 (2005)
. The question of when alienation occurs is
ordinarily one for the fact finder. See Snyder v. Freeman
N.C. 204, 208, 266 S.E.2d 593, 596 (1980) (holding date of
accrual of cause of action is question of fact); Litchfield
N.C. at 623, 146 S.E.2d at 642 (holding fact that plaintiff and
his wife continued to live together affected credibility of the
evidence, but alienation still remain[ed] a question for the
Although separation may be strong evidence of alienation
may affect the damages available to the plaintiff, we have never
held that plaintiff and spouse must live together at the time the
cause of action arises.
(See footnote 1)
Likewise, the fact that spouses
continue living together after the alleged alienation does not
preclude the possibility that alienation of affections has
already occurred. Litchfield
, 266 N.C.
at 623, 146 S.E.2d at
642. Rather, for an alienation claim to arise, the couple need
only be married
with genuine love and affection at the time of
defendant's interference. While still married, they may retain
the requisite love and affection for one another despiteseparation. See generally
1 Homer H. Clark, Jr., Law of Domestic
§ 12.2, at 656-57 (2d ed. 1987).
Commencing the statute of limitations only after alienation
is complete comports with North Carolina's public policy favoring
the protection of marriage.
We recognize and adhere in this
state to a policy which within reason favors maintenance of the
marriage. This policy militates against the application of any
procedural rule which forces a spouse to file . . . any action
which tends to sever the marital relation before that spouse is
really desirous of pursuing such a course. Gardner v. Gardner
294 N.C. 172, 180-81, 240 S.E.2d 399, 405 (1978). Mandatory
accrual on the date of separation would force spouses to take
prompt legal action, often to the detriment of reconciliation
efforts. Such a rule would prejudice those who reasonably
believe love and affection remains in their marriage and postpone
legal action until the chance of reconciliation no longer exists.
In holding plaintiff's claim was barred by the
statute of limitations, the Court of Appeals majority relied on
Pharr v. Beck
, 147 N.C. App. 268, 554 S.E.2d 851 (2001). Pharr
held that alienation claims must be based on pre-separation
conduct and that post-separation conduct is admissible only to
corroborate pre-separation events. Id.
at 273, 554 S.E.2d at
reasoned that a common law claim for alienation of
affections premised on post-separation conduct was incompatible
with the alimony statute in Chapter 50 of our General Statutes,
which defines marital misconduct as including only 'acts thatoccur during the marriage and prior to or on the date of
The logic of Pharr
fails because North Carolina's alimony
statute does not govern the common law tort of alienation of
affections. Although the General Assembly has the authority to
modify common law torts, courts strictly construe statutes in
derogation of the common law. McKinney v. Deneen
, 231 N.C. 540,
542, 58 S.E.2d 107, 109 (1950). Even when viewed broadly,
nothing in the divorce, alimony, and child support provisions of
Chapter 50 pertains to alienation of affections. The
restrictions established in Chapter 50 are thus irrelevant to the
tort of alienation of affections.
Significantly, the holding in Pharr
with both prior and subsequent decisions of the Court of Appeals
, the court held a claim for alienation of affections was
facially plausible although the only evidence presented
involved post-separation conduct. Brown
, 124 N.C. App. at 378-
79, 381, 477 S.E.2d at 236, 238. Moreover,
within weeks of
issuing the Pharr
decision, another panel of the Court of Appeals
's analysis and recognized that N.C.G.S. § 50-
16.3A(b)(1) (permitting courts to consider post-separation
conduct solely to corroborate marital misconduct which occurred
before the date of separation) concerns only entitlement for
alimony. Johnson v. Pearce
, 148 N.C. App. 199, 201, 557 S.E.2d
189, 190-91 (2001) (declining to limit criminal conversation
claims to incidents occurring before separation). We herebyoverrule Pharr
to the extent it requires an alienation of
affections claim to be based on pre-separation conduct alone.
Turning to the facts of the present case, we note this
appeal arises from an order granting summary judgment. Our
review is therefore de novo
. Howerton v. Arai Helmet, Ltd.
N.C. 440, 470, 597 S.E.2d 674, 693 (2004). The trial court
should grant summary judgment 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(c) (2005). The
evidence must be considered in a light most favorable to the
non-moving party. Howerton
, 358 N.C. at 470, 597 S.E.2d at 693.
Viewed in this light, plaintiff's evidence shows she and
Byron married on 1 June 1968 and had three children together.
They were happily married with genuine love and affection
before the interference of the [d]efendant. Although the
couple separated on 9 September 1998, Byron expressed his desire
to return to the marriage multiple times between October 1999 and
September 2000 and asked plaintiff not to take legal action
during that time. The couple purchased a car together in May
1999, following Byron's indication that he had broken off his
relationship with defendant. Plaintiff and Byron also maintained
joint finances after their separation. Additionally, they
participated in marriage counseling from July 1998 to February
2001. During their last counseling session, Byron told plaintiffhe was not heading toward divorce. In fact, Byron did not file
for divorce until more than a year after the date he was legally
permitted to do so under state law. Plaintiff apparently had
reason to believe the couple would reconcile until Byron made a
final decision in February 2001 to end their marriage.
Plaintiff's allegations in her sworn affidavit and verified
complaint present a genuine issue of material fact as to whether
there was love and affection following her separation from Byron.
Because a jury could determine alienation did not occur until as
late as February 2001, when Byron made the final decision to end
the marriage, and plaintiff filed her complaint within three
years of his decision, plaintiff's claim for alienation of
affections is not facially barred by the statute of limitations.