Alienation of Affection and Criminal Conversation Part 2

V. Damages awardsA. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999)

An ex-wife sued her former husband's new wife for alienation of affection and criminal conversation. The jury awarded $500,000 in compensatory damages and $500,000 in punitive damages.

The plaintiff and her husband were married in 1978 and lived together with their three children until 1996, at which point the husband left to move in with the defendant. The plaintiff produced evidence of their genuine marital relationship, including that they had an active sexual relationship, vacationed together, she traveled with him on business trips, they coached their children's soccer team together and volunteered together in church and community organizations. The plaintiff's husband often expressed his love for her by writing romantic poetry, including a poem entitled "Why I Love You" in 1981 and a sequel, "Why I Love You, II" in 1990. For Valentine's Day in 1992, he recorded a collection of love songs for her. The

appellate court agreed that the evidence tended to show that prior to 1993, the couple had a "fairy tale marriage." The appellate decision reprinted the "Why I Love You, II" poem in its entirety.

The defendant's behavior was discussed at length by the court. She worked as the husband's secretary starting in 1986. She separated from her husband in 1992 and at that point, became openly flirtatious with the husband. She also changed her appearance and cut and dyed her hair and began wearing short skirts, low-cut blouses, and tight clothing to the office. She began accompanying the husband on business trips. There was testimony that the husband and defendant flaunted their familiarity with one another at the workplace. The defendant claimed that the husband told her he had moved out of the marital home into an apartment, but the appellate court agreed that the love and affection between the plaintiff and her husband was alienated and destroyed by the defendant's conduct, citing her open flirtation, spending time alone with him, working late hours alone with him and traveling with him, and their sexual relationship.

Compensatory damages were justified by evidence that the plaintiff became physically ill after the husband left. She suffered from insomnia, lost 20 pounds, and sought counseling.

Punitive damages for alienation of affection were justified by the defendant's public display of the intimate nature of her relationship with the husband. The two held hands in the workplace, the defendant frequently straightened the husband's tie and drank out of his cup at an office social gathering. Most of the co-workers knew of the affair. The defendant also welcomed the husband into her home at all hours, and was "audacious enough" to call the plaintiff's home on Thanksgiving Day in an attempt to discover the husband's whereabouts. Punitive damages for criminal conversation were justified by the fact that the defendant engaged in a sexual relationship with the plaintiff's husband for several years. The court also noted several general factors supporting punitive damages: reprehensibility of the conduct, likelihood of serious harm, degree of the defendant's awareness of the consequences of the conduct, duration of the conduct, and actual damages suffered by the plaintiff.

B. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000)

The appellate court affirmed the award of $52,000 compensatory and $43,000 punitive damages. The plaintiff's husband worked in a county sheriff's department and first met the defendant in early 1998 when he responded to several domestic disturbance reports at her home. Several months later, the defendant began inviting the plaintiff's husband to her home. On numerous occasions, she contacted him at work and on one occasion, she arrived at the police station asking to speak to plaintiff's husband. They spent an increasing amount of time together and the plaintiff's husband moved into the defendant's home in July 1998, where he stayed for about two weeks. A sexual relationship developed between the defendant and plaintiff's husband during this time.

The defendant argued that the evidence was insufficient to support an award of punitive damages. But the court noted that evidence of sexual relations will allow the issue of punitive damages in an alienation of affection case to go to the jury. The court also commented on other aggravating circumstances justifying punitive damages, including the fact that the defendant appeared at the plaintiff's home, asking if they could be friends. The court rejected the defendant's argument that the trial court erred in admitting evidence of her assets before the jury determined that compensatory damages were warranted. Because she did not request a bifurcated trial on the issue of punitive damages, evidence regarding her assets was admissible as part of the plaintiff's case.

C. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004)

The plaintiff was awarded $910,000 in compensatory and $500,000 in punitive damages. The Court of Appeals remanded the case for a new trial on the issue of compensatory damages, but the North Carolina Supreme Court reversed on that issue (and upheld the Court of Appeals decision as to the punitive damage award).

The plaintiff and his wife were married in 1988. In February 1999, the wife had become unhappy with the marriage and contacted a former boyfriend. The two met several times during March 1999, had phone conversations, and exchanged emails. The next month, the plaintiff and wife separated. The plaintiff suffered such mental anguish that he lost his primary job as an investment advisor and his secondary job as a wrestling coach at Davidson College.

The court held that the punitive damages award was not excessive, because the plaintiff presented evidence of aggravating circumstances. Evidence of sexual relations allows a plaintiff to get to the jury on the issue of punitive damages and the amount of the award was upheld because it was substantially less than the compensatory damages award (and thus far under the cap of three times compensatory damages).

On compensatory damages, one issue was related to the loss of the plaintiff's income as an investment advisor. The defendant argued that the claimed future income was too speculative, based on the uncertainties of future commissions, growth/decline of financial markets, etc. But the court found that while those damages may have been less certain, the expert testimony was sufficient to support the award. The defendant also argued that most men in the plaintiff's shoes would not have lost their jobs due to mental distress and depression, but that was a question for the jury.

The other main compensatory damages issue related to the plaintiff's benefits through his secondary job. His side job as a wrestling coach at Davidson gave him access to Davidson's tuition benefit program. The college paid 80% of the tuition for an employee's child, or 70% if the child attended a school other than Davidson. The plaintiff's expert (an economics professor from UNC-Greensboro) used a benchmark rate of inflation to calculate the probable cost of tuition at Davidson through the period of time the plaintiff's children would likely attend college (at the time of trial, they were ten, seven, and three years of age). The court held that the evidence was not overly speculative, because the youngest was at least three and other appellate decisions have upheld damages awards for lost earning capacity for children less than three. Also, although the plaintiff did not offer evidence that the tuition program would continue to exist in the future, it was currently guaranteed to all employees and there was no evidence that it would cease to exist.

D. Shackelford v. Lundquist, 233 N.C. App. 787, 759 S.E.2d 711 (2014) (unpublished)

The jury awarded $5,000,000 in compensatory and $4,000,000 in punitive damages. The plaintiff and her husband were married in 1972. In 2004, the defendant and the husband began having an affair. The plaintiff alleged that the defendant (who was then the dean at a local college) began and continued a course and pattern of conduct that interfered with the loving marital relationship. The affair lasted for several years. The defendant lived in New York at the time of trial and did not appear at trial or have counsel present. Most of the issues on appeal were on around the defendant's argument that the trial court had erred when it denied her emergency motion for a continuance. The appellate court rejected her arguments, because she had not done much (if anything) to preserve her rights. She sent several letters to the clerk, stating that she did not have an attorney and could not afford one. But her responses and requests came after deadlines and she failed to comply with local rules. She failed to give the lawsuit the attention a prudent person would give and if she was unaware of the trial date, it was because of her own lack of diligence.

E. Hayes v. Waltz, 246 N.C. App. 438, 784 S.E.2d 607 (2016)

The plaintiff sued for alienation of affection, arising out of the defendant's extra-marital relationship with the plaintiff's wife. A jury awarded compensatory damages of $82,500 and punitive damages of $47,000. The trial judge vacated the punitive damage award and both sides appealed. The court of appeals reversed and remanded the decision on punitive damages, ordering the trial judge to provide a written opinion setting forth the reasons why the evidence was insufficient to support the jury's verdict.

The couple was married in 2000. They had two children and the plaintiff legally adopted his wife's child from her prior marriage. In 2006, the family moved to North Carolina, where the wife worked as a legal administrative assistant for Bayer. In February 2011, she went to a work conference in Cancun and met the defendant (also a Bayer employee), who lived in Indiana. The two engaged in sexual relations for two nights while at the conference and then returned home to North Carolina and Indiana. In March-June 2011, the wife and defendant communicated frequently. They exchanged 423 text messages and phone calls during the month of March, 977 in April, 1,093 in May, and 894 in June. They spent over 26 hours on the telephone together during this time period. The plaintiff noticed the phone calls on the bill and called the defendant (who did not answer, but informed the wife of the call). The wife told the plaintiff to stop calling the number, telling him "He's not going to answer." She also admitted to several previous affairs. The plaintiff then called the defendant from the wife's phone and the defendant admitted that he had had sex with the plaintiff's wife in Cancun and that he knew she was married. The plaintiff told the defendant to leave his wife alone, because they were going to try and work things out. The plaintiff went to Florida to pick up the children and while he was out of town, the defendant drove from Indiana to North Carolina to pick up his own children and also picked up the wife and took her to Indiana, where they spent about a week together.

On appeal, the defendant argued that none of the sexual encounters took place in North Carolina. But the court found that other intentional conduct that would have affected the marital relationship did occur in North Carolina: the voluminous number of text messages and phone calls, many of which were late at night or on weekends. The defendant asserted that they were work related calls, with some discussions of topics such as travel and raising children. But the fact that the defendant admitted that he chose not to answer the phone call from the plaintiff because he had an inkling it was from the plaintiff (and then immediately texted the wife to let her know her husband was trying to contact him) allowed the jury to find that the communications between the wife and defendant were not solely business related. Also, after the plaintiff told the defendant to leave his wife alone, the defendant came to North Carolina and took her on a six-day trip. This was less than a week after being told to leave her alone. The wife had had previous affairs, but the plaintiff testified that they had gone to counseling and "moved on" and that this affair was different.

The compensatory damages award was supported by the plaintiff's emotional and financial suffering. He lost the support of the wife's income and the marital home went into foreclosure because he could not pay the mortgage payment on his own. He also suffered emotionally from having his children no longer live with him full time and testified that friends and others in the community viewed and treated him differently.

The court held that the punitive damages award should not have been set aside without the trial court addressing specifically the evidence it found to be lacking on the issue of aggravating factors.

F. Rodriguez v. Lemus, 810 S.E.2d 1, 2 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018)

An award of $65,000 was upheld. The plaintiff and her husband married in 2007. The defendant was a family friend who attended the couple's wedding and spent time with them. In 2011, the plaintiff began noticing that the marriage seemed to be changing, checked her husband's phone, and discovered that he and the defendant were in regular contact (for example, 120 contacts in one month in early 2012). The husband and defendant denied any wrongdoing, but the plaintiff found a credit card bill for stays at two different hotels, which occurred when her husband was supposed to be at work. She also learned that the defendant was at one of the hotels. The plaintiff contacted the hotel, obtained a copy of the bill, and was told that her husband had been there with an unidentified woman. In April 2012, the husband told the plaintiff their relationship was over and moved out of the marital home. Less than three weeks later, the plaintiff gave birth (to her and her husband's first child). The husband began living with the defendant, who gave birth to a child in October 2013. The issue in this case was whether evidence of post-separation acts is admissible to support an inference of pre-separation acts constituting alienation of affection or criminal conversation. The court held that evidence of post-separation conduct may be used to corroborate evidence of pre-separation conduct and can support claims for alienation of affection and criminal conversation, so long as the evidence of pre-separation conduct is sufficient to give rise to more than mere conjecture.

The pre-separation conduct included the phone records (120 contacts in a one-month period, all at times when the husband was not at home), hotel charges on the husband's credit card, information from a hotel that the husband had been there with a woman, and social media postings by the defendant and the husband. Post-separation conduct included the fact that the husband began living with the defendant in late 2012 or early 2013, the defendant gave birth to a child in October 2013 and gave it the husband's first name, the husband told the plaintiff that they could not reconcile because he loved the defendant and because she was pregnant, and the defendant admitted that she had sex with the husband after the separation. The court found that to be sufficient evidence to corroborate the evidence of pre-separation conduct, and found that it was reasonable to infer that the defendant was the woman with the husband at the hotel.

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