Alienation of Affection and Criminal Conversation Part 1
This presentation sets forth the elements of alienation of affection and criminal conversation. Part II covers the elements, damages, and statute of limitations for alienation of affection; Part III covers the same for criminal conversation. Part IV provides a case study on a discovery issue. Part V discusses alienation of affection and criminal conversation appellate cases upholding large damage awards and identifies factors supporting those awards.
There have been several challenges to the torts of alienation of affection and criminal conversation, including a 2017 case in which the Court of Appeals rejected constitutional challenges based on Due Process and First Amendment grounds. Malecek v. Williams, 804 S.E.2d 592 (N.C. Ct. App. 2017), review denied, 370 N.C. 381, 807 S.E.2d 574 (2017).II. Alienation of affection
Alienation of affection is the malicious and wrongful alienation of a genuine marital relationship between the plaintiff and his spouse. There are some differences depending on whether the cause of action arose from acts before or after October 1, 2009. The North Carolina Supreme Court held in 2006 that sexual conduct occurring after a married couple has separated, but before their divorce, is sufficient to support claims for alienation of affection. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). However, in 2009, the General Assembly codified alienation of affection in a statute specifically limiting the torts to arise only from acts committed prior to a married couple's separation. N.C. Gen. Stat. § 52-13(a).A. Elements1. Genuine marital relationship
Plaintiff and his spouse were married and a genuine marital relationship existed between them.
a. A "genuine marital relationship" is one where some degree of love and affection exists between the spouses.
Affections include love, society, companionship, and comfort of the other spouse. Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988).
Legally protected marital interests include the affections, society and companionship of the other spouse, sexual relations and the exclusive enjoyment thereof. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).
b. The marital relationship need not be a perfect one nor one free of discord.
A plaintiff need not prove a marriage free from discord, only that some affection existed between the spouses. The plaintiff satisfied this element where he provided evidence that he and his wife had a "loving marriage" where she did housework, prepared family meals, attended church with the family, took family trips, and had an interest in sexual relations with her husband. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002).
A plaintiff must produce evidence of love and affection, but need not prove that her spouse had no affection for anyone else or that the marriage was one of "untroubled bliss." McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). The plaintiff satisfied this element where she produced evidence that the couple purchased a car together, maintained joint finances, and participated in marriage counseling sessions, including a session in which the husband said that he was "not headed toward divorce."
The plaintiff produced sufficient evidence of a loving marriage where the couple maintained an active sexual relationship, vacationed together, she traveled with him on business trips, they coached their children's soccer team together and volunteered in church and community organizations, and the husband often expressed his love for the plaintiff by writing romantic poetry, including a poem entitled "Why I Love You." Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).2. Alienation
The genuine marital relationship between the plaintiff and his spouse was alienated.
Alienation means that the love and affection of the plaintiff's spouse for the plaintiff was seriously diminished or destroyed.
Diminution often does not happen all at once, and the question of when alienation occurs is usually one for the jury. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006)
The plaintiff showed serious diminution or destruction by presenting evidence that his wife's attention to housework and preparation of family meals, as well as her interest in sexual relations, began to decline. A year or two later, she stopped attending church with the family, did not want to take family trips and began sleeping separately from the plaintiff. The following year, she moved out of the marital home. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002).
The plaintiff presented sufficient evidence that the love and affection that existed between he and his wife was alienated and destroyed where he testified that after the defendant started working with his wife, his wife began turning cold towards the plaintiff and their sex life started deteriorating. The plaintiff also testified that his wife turned down a trip to Europe and told him
she did not want to go anywhere with him. The plaintiff's wife also told him she did not love him anymore and that she loved the defendant. Gray v. Hoover, 94 N.C. App. 724, 381 S.E.2d 472 (1989).3. Causation, location, effect of separation
The controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and his spouse was malicious and wrongful conduct on the part of the defendant, which took place in the State of North Carolina, and for acts occurring on or after October 1, 2009, which occurred before the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent.a. Causation
(1) Defendant's conduct need not be the sole cause of the alienation
A defendant's conduct must be merely the controlling or effective cause. Bishop v. Glazener, 245 N.C. 592, 96 S.E.2d 870 (1957).
The defendant's conduct was the controlling and effective cause of the alienation of affection, where before she became involved with the plaintiff's husband, plaintiff and husband had always resolved their differences. For example, the husband had previous affairs, but had been forgiven by the plaintiff before the defendant interfered with the relationship. There was also evidence that the plaintiff's relationship with her husband was impaired by husband's drinking, but that was not more than a contributing cause of the separation. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).
The plaintiff demonstrated causation where, although she may have been rather argumentative, overbearing and domineering of conversation while her husband was a quiet, patient mild mannered man, for thirty years (until the relationship with defendant), the plaintiff and her husband managed to have an affectionate marital union. The plaintiff's evidence tends to show that defendant, despite the plaintiff's protests, continued to see the plaintiff's husband on a regular, frequent basis and these visitations culminated in the ultimate separation of the plaintiff and her husband. The husband told the plaintiff that, unlike the plaintiff, the defendant was kind to him, had a soft voice, and was pleasant to be with. Heist v. Heist, 46 N.C. App. 521, 265 S.E.2d 434 (1980)
(2) Defendant's conduct must be malicious and wrongful
Malice is shown by evidence that the defendant knew of the marriage and intentionally acted in a way likely to affect it. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002).
Malice is conclusively presumed if the defendant engaged in sexual intercourse with the plaintiff's spouse. Rodriguez v. Lemus, 810 S.E.2d 1 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018).
The plaintiff showed causation where the defendant openly flirted with the plaintiff's husband at work, dined with him alone, worked late hours alone with him, traveled with him on business, and eventually began an intimate relationship with him. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).
"Luring" is not required. The defendant must just be an active and willing participant, not necessarily the initiator. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000), Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988).
Evidence of numerous phone calls to the marital home by the defendant were not sufficient to demonstrate malicious conduct. The defendant and the plaintiff's wife had an ongoing business relationship and thus the defendant allegedly had a valid, inoffensive reason for calling the marital home. In addition, although the plaintiff asked the defendant to stop calling the home, there was no indication that the phone conversations were marked by salacious whisperings, plans for clandestine meetings, or any other intonation of improper conduct by defendant. The calls may be proof of a "gregarious spouse" but not malicious conduct by the defendant. Coachman v. Gould, 122 N.C. App. 443, 470 S.E.2d 560 (1996).b. Location
The conduct must have taken place in the State of North Carolina.
The tortious injury occurs where a defendant's alienating acts occur, not the state of the plaintiff's residence or marriage. Therefore, the trial court erred by finding no subject matter jurisdiction, where the plaintiff lived in South Carolina, the defendant lived in North and South Carolina and some acts occurred in each state, although the bulk of the conduct occurred in South Carolina. The issue should at least have gone to the jury, because there were phone calls made from the state of North Carolina, as well as sexual acts in two trips to the state. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009). See also Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988) (sufficient alienating acts occurred in North Carolina; even though plaintiff's husband and defendant had sexual encounters in Virginia, D.C., and Maryland, they had two encounters in North Carolina before husband returned home from his temporary work assignment in North Carolina to Virginia).
Sufficient alienating conduct arose within North Carolina where the plaintiff's wife and the defendant had sexual relations only in Cancun and Florida, but defendant picked up the wife in North Carolina and drove her to Indiana. While in North Carolina, they kissed and embraced each other and slept in the same hotel bed. Hayes v. Waltz, 246 N.C. App. 438, 784 S.E.2d 607 (2016).c. Effect of separation
For actions arising on or after October 1, 2009, the defendant's conduct must have occurred before the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent. N.C. Gen. Stat. § 52-13(a).B. Damages1. Nominal damages.
If the defendant is found liable for alienation of affection, the plaintiff is entitled to nominal damages, even without proof of actual damages.2. Actual damages
Compensatory damages may be based on loss of love, affection, society, assistance, companionship, comfort, sexual relationship, favorable mental attitude; mental anguish, shame, humiliation, or disgrace suffered by the plaintiff; injury to plaintiff's health, feelings, or reputation; and any loss of support.
Compensatory damages need not be based on a pecuniary loss. Where the plaintiff's income increased after his divorce, the jury award of $25,000 in actual damages was upheld based on loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and disgrace. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).
The plaintiff demonstrated damages where she showed a loss of income, life insurance, and pension benefits, as well as loss of consortium, mental anguish, humiliation, and injury to health. She became physically and emotionally ill, suffered from insomnia, lost 20 pounds due to her lack of appetite, and sought counseling to cope with the emotional pain and stress. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).
Future damages consisting of college tuition benefits were not too speculative (at the time of trial, the children were ages ten, seven, and three) where the benefit was guaranteed to all employees, and there was no evidence that the college would stop providing the benefit. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004) (citing the concurring and dissenting opinion in the court of appeals decision as the rationale: Oddo v. Presser, 158 N.C. App. 360, 581 S.E.2d 123 (2003).3. Punitive damages
Punitive damages may be awarded in addition to compensatory damages where the conduct of the defendant was willful, aggravated, malicious, or of a wanton character. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969); Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).
A $500,000 punitive damages award was upheld due to evidence of circumstances of aggravation in additional to malice. Those circumstances included the defendant's public display of her relationship with the plaintiff's husband. She held hands with him in the workplace, straightened his tie and brushed lint off of his suit at corporate events, and drank out of his cup at
a social gathering. Her actions meant that the entire office knew they were having an affair. She also invited him into her home overnight, traveled with him on business trips, and "was audacious enough" to call his home. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).
Evidence of sexual relations allows a plaintiff to get to the jury on the issue of punitive damages. In this case, the issue properly went to the jury because the plaintiff presented evidence that the defendant had sex with the plaintiff's husband at least two times. There were also other aggravating circumstances, such as the defendant coming to the plaintiff's house unannounced and asking if they could be friends. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000).C. Statute of limitations1. Actions arising from acts occurring on or after October 1, 2009
A plaintiff must file the action within three years of the date of the last act of the defendant giving rise to the plaintiff's claim. N.C. Gen. Stat. § 52-13(b) (2009).
The law further provides that if the plaintiff and the plaintiff's spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such separation may give rise to the plaintiff's alienation of affection claim.2. Actions arising from acts occurring prior to October 1, 2009
A plaintiff must file the action within three years of the date when the alienation between the plaintiff and his spouse became complete. The spouses need not be living together when the cause of action accrues. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006).III. Criminal conversation
Criminal conversation is sexual intercourse with the spouse of another person during the marriage. As with alienation of affection, there are differences in the cause of action, depending on whether the action arises from acts occurring before or after October 1, 2009. N.C. Gen. Stat. § 52-13(a) specifically limits the tort to arise only from acts committed prior to a married couple's separation.A. Elements1. Marital relationship
Conduct occurred during the marriage of the plaintiff and his spouse.
It is not necessary that the defendant be aware of the marriage.
Unlike alienation of affection claims, it is not necessary that the marriage be one of love and affection. The cause of action is based on the violation of the fundamental right to exclusive
sexual intercourse between spouses. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).2. Conduct
The defendant had sexual intercourse with the spouse of the plaintiff.
A single act is enough to allow to the plaintiff to recover damages. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009).
The jury may not consider whether the spouse consented to or enticed the sexual intercourse. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982). The only substantive defense is the consent of the plaintiff. Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985).
The jury cannot consider the plaintiff's behavior. Where the plaintiff admitted to being unfaithful to his wife, the admission did not bar a claim for criminal conversation. The court rejected the defendant's argument that he should not be liable for damages because the cause of action for criminal conversation is based on the violation of exclusive sexual intercourse between spouses. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).
The plaintiff may rely on circumstantial evidence, although the evidence must rise to more than mere conjecture. Evidence is generally sufficient if the plaintiff can show opportunity and inclination. Rodriguez v. Lemus, 810 S.E.2d 1 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018).
The plaintiff demonstrated sexual intercourse through circumstantial evidence with evidence that the plaintiff caught the defendant in plaintiff's trailer at a lake with the defendant hanging onto the wife's arm, that the plaintiff's wife and the defendant were living together in a condominium in Florida while plaintiff and his wife were still married, and that the defendant admitted to plaintiff in a phone conversation that he was having sex with the plaintiff's wife. The court noted that the defendant did not raise any objection to the testimony, nor did the defendant or plaintiff's wife testify at trial. Gray v. Hoover, 94 N.C. App. 724, 381 S.E.2d 472 (1989).
A plaintiff failed to present sufficient evidence of sexual intercourse where he presented evidence of frequent phone calls between his wife and the defendant, an ambiguous statement by his wife that she had "been with" defendant (which was subject to multiple interpretations, especially since she was in a "medicated stupor" when the statement was made), and a car ride with the wife and defendant which the plaintiff observed. The defendant had also admitted to a sexual relationship with the wife which ended more than three years prior. The court found a lack of opportunity, noting that phone calls and car rides are not the necessary type of "opportunities" for sexual intercourse. Coachman v. Gould, 122 N.C. App. 443, 470 S.E.2d 560 (1996).3. Location
Conduct took place in the State of North Carolina.
Where the plaintiff's husband and the defendant engaged in a single occurrence of sexual intercourse in North Carolina, the trial court erred by granting summary judgment to the defendant based on lack of subject matter jurisdiction. Summary judgment should have been granted to the plaintiff, even though at the time of the occurrence, all of the parties were South Carolina, not North Carolina residents. The court rejected the defendant's argument that North Carolina has no interest in the exclusive right of the sexual relationship between residents of South Carolina because for actions arising in tort, the law of the state where the tort was allegedly committed controls the substantive issues of the case. There was no issue of material fact regarding plaintiff's criminal conversation claim arising out of the June 2004 sexual intercourse in North Carolina and therefore the plaintiff was entitled to judgment as a matter of law. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009).4. Separation as a bara. For acts occurring on or after October 1, 2009
The sexual intercourse between the defendant and the spouse of the plaintiff must have occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent. N.C. Gen. Stat. § 52-13(a) (2009).
Evidence of post-separation acts may be considered for the purpose of corroborating or supporting any evidence of conduct prior to the separation.
Rodriguez v. Lemus, 810 S.E.2d 1 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018).b. For acts occurring prior to October 1, 2009
Separation does not bar an action for criminal conversation occurring during that separation. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969); Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234 (1996); Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938).B. Damages1. Nominal damages
If the defendant is found liable for criminal conversation, the plaintiff is entitled to nominal damages, even without proof of actual damages.2. Actual damages
The measure of damages is incapable of precise measurement, but in awarding actual damages, the jury may consider any mental anguish, shame, humiliation or disgrace suffered by the plaintiff; any loss of sexual relations between the plaintiff and his spouse; any injury to reputation, loss of support or other economic loss; any other adverse effect on the quality of the
marital relationship; or the loss by the plaintiff of the consortium of his spouse. Consortium means the marital fellowship of husband and wife, and the right of each to the company, cooperation, affection, and aid of the other. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999); Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).
The plaintiff's infidelity could be considered when determining damages, because it impaired the marital relationship. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).
The plaintiff submitted substantial evidence of his mental anguish and humiliation, including testimony from his father that he was depressed and his own testimony that he had consulted a clergyman to help with deal with the emotional turmoil caused by the affair between his wife and the defendant. There was also evidence that the plaintiff (up until a week before trial) tried many times to speak with his wife by leaving notes on her car. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002)
Evidence of a portion of the damages suffered by the plaintiff was not too speculative, where the damages were based on a tuition benefit the plaintiff lost because the defendant's actions caused him such mental anguish that he lost his job at a college. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004).
The jury cannot consider the plaintiff's behavior. Where the plaintiff admitted to being unfaithful to his wife, the admission did not bar damages for criminal conversation. The court rejected the defendant's argument that he should not be liable for damages because the cause of action for criminal conversation is based on the violation of exclusive sexual intercourse between spouses. The plaintiff's infidelity could be considered when determining damages, because it impaired the marital relationship. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).3. Punitive damages
Punitive damages may be awarded for criminal conversation. Punitive damages awarded shall not exceed the greater of three times the amount of compensatory damages or $250,000 whichever is greater. N.C. Gen. Stat. § 1D–25(b); Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).4. Combined damages
Proof of alienation of affection does not require criminal conversation and proof of criminal conversation does not require alienation of affection. However, because the two causes of action are so intertwined, when a plaintiff sues for both, only one issue of compensatory and one issue of punitive damages should be submitted to the jury. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).C. Statute of limitations1. Actions arising from acts occurring on or after October 1, 2009
A plaintiff must file the action within three years of the date of the last act of the defendant giving rise to the plaintiff's claim. N.C. Gen. Stat. § 52-13(b).
If the plaintiff and the plaintiff's spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such physical separation may give rise to the plaintiff's criminal conversation claim.2. Actions arising from acts occurring prior to October 1, 2009
A plaintiff must file the action within three years of the date it became apparent or ought reasonably to have become apparent to the plaintiff that the defendant had committed criminal conversation with the plaintiff's spouse. Misenheimer v. Burris, 360 N.C. 620, 637 S.E.2d 173 (2006).IV. Discovery case studyA. Background
The plaintiff, Mrs. Smith, filed an alienation of affection and criminal conversation action against Mrs. Jones, alleging that Mrs. Jones wrongfully alienated the affections of Mr. Smith (Mrs. Smith's former husband). The extramarital affair between Mrs. Jones and Mr. Smith also gave rise to a previous claim for similar relief, made by Mrs. Jones' husband, Mr. Jones, against Mr. Smith. That claim was settled in a written agreement between Mr. Jones and Mr. Smith. In Mrs. Smith's action, she filed a notice to depose Mr. Jones and requested that Mr. Jones produce all agreements with Mr. Smith. Both Mr. Jones and Mr. Smith attempted to quash the discovery (citing a confidential clause in the settlement agreement).B. Issues1. Relevance arguments
Mr. Jones and Mr. Smith argued that the agreement is not relevant. For example, the damages suffered by Mr. Jones are essentially for emotional distress, loss of consortium, and loss of reputation, and those factors are specific to Mr. Jones. In addition, a settlement agreement is not an admission of culpability. And, they argued, disclosing settlement agreements will discourage parties from settling cases. Given those factors, the agreement is not sufficiently relevant to justify disregarding the confidentiality provision in the agreement.
Mrs. Smith asserted that the scope of discovery for her alienation of affection and criminal conversation action was broad enough to cover the agreement, because the agreement was relevant to the subject matter of the action (i.e., the extramarital affair between Mr. Smith and Mrs. Jones) and could contain factual material directly relevant to Mrs. Smith's case. For example, evidence of specific dates on which sexual activity occurred, statements relevant to the cause or causes of the breakdown of the Smith marriage, or evidence of money spent by Mr.
Smith in pursuance of his relationship with Mrs. Jones (evidence that could be important for proof of damages). Given the subject of the agreement, there is a reasonable probability that it contains material relevant to this action. She does not seek to use the settlement agreement as an admission but to determine whether the settlement agreement contains evidence, or leads to other evidence, relevant to her claim against Mrs. Jones. The evidence would therefore not be barred by the rule against the admission of settlement negotiations.2. Privilege arguments
Mr. Smith and Mr. Jones made several argument in favor of privilege. The first was marital privilege: "No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage." N.C. Gen. Stat. § 8-57(c). The marital privilege applies when (1) a communication is made between married persons, (2) the communication is confidential, and (3) the communication is made during the marriage. The settlement agreement is clearly not a "communication between married persons," but the parties raised the issue as relevant to questions that might be asked of Mr. Jones in depositions. Mrs. Smith argued that it was premature to raise the privilege at this point—any objection should wait until a specific question has been asked.
Mr. Smith and Mr. Jones also argued that disclosure of the settlement agreement, and perhaps questions to be asked at the deposition, will require them to breach a contract with a third party. But, Mrs. Smith argued, she did not sign the agreement and is not contractually bound by it. Without the agreement or at least the confidentiality clause in evidence, there was no evidence of the confidentiality provision. It is possible that Mr. Smith and Mr. Jones may have agreed only to refrain from voluntary disclosure of certain information. Disclosure that is required by a subpoena is involuntary disclosure, which may not be a breach of the agreement. Mr. Smith and Mr. Jones should have to produce the confidentiality agreement. And even if the confidentiality provision does bar involuntary disclosure, it is entirely unenforceable. If a husband buys a mink coat with marital funds and gives it to his paramour, can he agree with the paramour that neither will disclose the gift to the wife and thereby avoid discovery in a divorce case? Recognizing such a privilege would provide an incentive for defendants to sign confidentiality agreements with friendly third parties and avoid discovery. At the time the agreement was executed, Mrs. Smith's interest in the extramarital affair was obvious to all parties. If a confidentiality clause is present, it was added to the agreement voluntarily by Mr. Smith and Mr. Jones, in deliberate disregard of rights they had every reason to foresee. They cannot, by contract signed only by them and not by Mrs. Smith, restrict Mrs. Smith's right to seek discovery of information relevant to the subject matter of this lawsuit.
Mr. Smith asserted that a privilege existed because information could be revealed that is the subject of his personal interest, right, and privilege. But it is inherent in the torts of alienation of affections and criminal conversation that matters involving sexual relationships will be discussed in court. To recognize some sort of "personal interest privilege" barring discussion of such relationships is effectively to repeal these torts, which the North Carolina Supreme Court has emphatically refused to do.
Mr. Jones asserted an "emotional distress privilege," arguing that answering deposition questions would force him to relive the incidents that caused him great suffering. North Carolina courts have not considered an emotional distress privilege. Federal courts, however, have taken up the question and expressly held that similar claims of emotional distress are not a valid basis for granting a protective order against a deposition. Mr. Jones further protested that he would be unduly burdened by having to recall extremely difficult periods of his marriage. But his emotional distress did not stop him from pursuing a claim for alienation of affections and criminal conversation against Mr. Smith, and apparently from recovering a substantial amount. He was willing to relive past experiences for the benefit of his own claim; he should be required to do the same thing for the benefit of Mrs. Smith's claim.