Chapter 3 ALIENATION OF AFFECTION

• Jurisdiction: North Carolina

3 ALIENATION OF AFFECTION

A. Definition

Alienation of affection concerns a wrongful act that "deprives a married person of the affection, love, society, companionship, and comfort of the spouse."

Alienation of affection is sometimes referred to as a "heart balm" action because it purports to award money damages for emotional harm.¹ It is a tort action,² and one of long standing.³ It "evolved from a husband's common-law right to recover from anyone who intentionally 'enticed' his wife to leave the home, with the result that he lost his wife's society and services."⁴ Presently, it is available to either a husband or wife and concerns a wrongful act that "deprives a married person of the affection, love, society, companionship, and comfort of the spouse."⁵ A cause of action for damages against one who wrongfully and maliciously alienates the affection of a spouse has been described by the North Carolina Supreme Court as "a fundamental common law right."⁶ The action protects the interest of a spouse in a peaceful and uninterrupted marriage and in the exclusivity of the marital relationship, and affords the injured spouse a remedy against a third party's conduct that affects the protected interests.⁷ The defendant in an action for alienation of affection must be a natural person.⁸

A child has no action against a third party who causes alienation of a parent's affection,⁹ and the Court of Appeals has refused to extend the action to a parent to recover from another parent,¹⁰ or a third party,¹¹ for alienating the affection of his or her child. A different and distinguishable cause of action may arise where there are allegations of seduction or abduction of a child.¹²

That alienation of affection is a problematic tort was acknowledged by the Court of Appeals when it said:

We recognize that the injury attributable to the alienation of another's affections is a nebulous concept, which, unlike a broken bone, is not a readily identifiable event. The establishment of this tortious injury is further complicated because it may be sustained through one act or through successive acts of a defendant.¹³

Policy considerations and the difficulties associated with the action have caused most states to abandoned it, and indeed it died a brief death in North Carolina at the hands of the Court of Appeals,¹⁴ which found alienation of affection to be an archaic concept serving no purpose in modern society.¹⁵ The action was, however, quickly resurrected by the North Carolina Supreme Court.¹⁶ It remains in effect today, and efforts to encourage the Court of Appeals to attempt to kill it again have failed.¹⁷ That court has, however, warned that in the future, "courts will need to grapple with the reality that these common law torts burden constitutional rights and likely have unconstitutional applications."¹⁸ The tort continues to be a topic of great interest to authors of journal articles and while most writers advocate its abolition, it has supporters too.¹⁹

Since many states have abandoned the tort of alienation of affection,²⁰ choice of law issues may be important. The Court of Appeals has described alienation of affection as a "transitory tort," requiring the plaintiff to prove that the tortious injuries — defendant's alienation of affection — occurred in North Carolina, before North Carolina substantive law may be applied.²¹

B. Elements

The elements required to prove alienation of affection are as follows:

(1) The parties to the marriage²² were happily married with genuine love and affection existing between them,
(2) The love and affection was alienated and destroyed, and
(3) The wrongful and malicious acts of the defendant produced and brought about the loss and alienation of that love and affection.²³

Destruction of the marriage is not a necessary element of the action.²⁴

Adultery is not required to prove any of the elements, but may support the action. Where the plaintiff seeks to show adultery, direct proof is not necessary. Circumstances are sufficient for that purpose, if from them the jury can reasonably infer the guilt of the parties.²⁵

Actions for alienation of affection raise some evidentiary concerns. In an early case,²⁶ a plaintiff husband brought an action for alienation of affection and criminal conversation, and the North Carolina Supreme Court decided he was competent to testify about the adultery of his wife with the defendant.²⁷ Indeed, in Gray v. Hoover,²⁸ the plaintiff was the only witness to testify at trial. The lower court granted the defendant's motion for a directed verdict on the alienation of affection claim at the close of the plaintiff's evidence, but the Court of Appeals, reviewing the plaintiff's testimony, said that since there was "more than a scintilla of evidence" on each essential element of the tort, the trial court erred when it granted a directed verdict. The holding led one commentary to remark on the relatively low evidentiary standard in alienation of affection cases.²⁹

C. Elements Defined

1. Parties to Marriage were Happily Married with Genuine Love and Affection Existing Between Them

One commentary argues the evidentiary standard for meeting this element is low, requiring only the testimony of the plaintiff or an interested witness.³⁰ The plaintiff need only prove that his or her spouse had some genuine love and affection for him or her, not that the spouse had no affection for anyone else or that the marriage was previously one of "untroubled bliss."³¹ Where a defendant presented evidence that a marriage was "troubled by alcohol," the evidence created an issue of material fact about whether genuine love and affection existed between plaintiff and her husband.³²

2. Love and Affection was Alienated and Destroyed

"Alienation occurs if a spouse's affection for the other spouse is destroyed or diminished."³³ Evidence of alienation is sufficient if there is only a partial loss of affection.³⁴ Where the plaintiff and his "alienated" wife were still living together, their cohabitation affected the credibility of his evidence, but a jury question remained.³⁵ That the plaintiff is unaware of specific alienating acts, or believes the marriage can be salvaged, does not negate the fact that those acts may have diminished affection.³⁶ An unsuccessful attempt by the defendant to contact the plaintiff's spouse has been found insufficient to show alienation.³⁷

Separation alone does not establish a lack of "genuine love and affection" as a matter of law.³⁸ At one point, the Court of Appeals said that an alienation of affection claim had to be based on pre-separation conduct; post-separation conduct was admissible only to the extent it corroborated pre-separation activities that resulted in the alienation of affection.³⁹ The North Carolina Supreme Court, however, subsequently overruled that decision to the extent it required an alienation of affection claim to be based on pre-separation conduct alone.⁴⁰ Then, in 2009, the North Carolina Legislature weighed in and enacted a new statute under which no act of a defendant may give rise to a cause of action for alienation of affection that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either of them that the physical separation remain permanent.⁴¹ The Court of Appeals has now held that evidence of post-separation conduct is competent to support findings of pre-separation conduct.⁴²

3. Wrongful and Malicious Acts by Defendant Causing Loss and Alienation

The plaintiff has the burden to prove that the loss of affection was occasioned and brought about by the "wrongful and malicious counsel, advice and procurement of the defendant."⁴³ A defendant may not be liable for merely becoming the object of the affection that is alienated from a spouse; the plaintiff must show active and affirmative conduct by the defendant because there must be active participation, initiative or encouragement by the defendant in causing the loss of affection for liability to arise.⁴⁴

The third element consists of two parts: the plaintiff must prove both malice and proximate cause.⁴⁵

The plaintiff does not have to show the defendant intended to destroy the marriage to prove malice.⁴⁶ The malice need not necessarily be express; an intentional, unjustifiable and wrongful alienation is sufficient to imply the requisite malice.⁴⁷ In the context of an alienation of affection claim, a malicious act has been loosely defined to include any intentional conduct that would likely affect the marital relationship.⁴⁸ The acts have been defined as those constituting unjustifiable conduct causing the injury complained of.⁴⁹ Evidence the defendant knew of the marriage and acted intentionally in a way likely to affect it shows malice.⁵⁰ Mere contact with the plaintiff's spouse — even over the plaintiff's objections — may not show the required malice.

In Coachman v. Gould,⁵¹ for example, the defendant, who had an arguably legitimate business reason for calling the plaintiff's spouse, made numerous calls to her that the plaintiff characterized as being about business and "talk." The plaintiff asked that the defendant not call his wife on the telephone, but the calls continued. The court said that even assuming the defendant had no legitimate business reason to make the calls, they did not, in and of themselves, rise to the level of maliciousness necessary to satisfy the third element of alienation of affection. The court noted the plaintiff did not describe the calls as harassing, threatening or otherwise improper. The plaintiff failed to produce competent evidence sufficient to establish the elements of a claim for alienation of affection, and it failed as a matter of law.

In Pharr v. Beck,⁵² the court said malice is conclusively presumed on showing the defendant engaged in sexual intercourse with the alienated spouse. However, it is not required that the plaintiff show the defendant "lured" the alienated spouse. Indeed, the defendant need not even be the...