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Is the price of infidelity going down?

Over 200 alienation of affection lawsuits are filed in North Carolina every year, and each one provides the judiciary with an opportunity to decide the fate of the controversial tort.

Marc and Amber Malecek were married on November 12, 2011. In early 2014 they had a child and what Marc would describe as a happy home. This happiness continued until Marc discovered emails and text messages exchanged between his wife and a doctor she worked with at Wake Forest Baptist Health. The messages revealed an affair that began in December and included statements from Derek Williams, the doctor, that indicated he was well aware that she was married. The emails also included statements from Amber Malecek indicating that she was hesitant to break her vows. The affair eventually materialized and, upon discovery, Mr. and Mrs. Malecek separated; however, the story did not end there. Mr. Malecek filed a lawsuit in Forsyth County Superior Court against his wife’s paramour for the causes of alienation of affection and criminal conversation. A successful suit in this situation would allow Marc Malecek to recover both compensatory and punitive damages.

Judge Fox entered a judgment in Wake County against a defendant in an alienation of affection case in the amount of $30 million.

Actions of this type are filed an estimated 200 times a year. In March of 2011, NC Superior Court Judge Carl Fox entered a judgment in Wake County against a defendant in an alienation of affection case in the amount of $30 million. The judgment is said to be the largest judgment in the state’s history. The plaintiff in the case, Carol Puryear, sued the defendant, Betty Devin, after she discovered the on-going affair between the defendant and her husband. Donald Puryear and Betty Devin later married.

While judgments of that size are not common, they are not unheard of. Cynthia Shackelford sued Anne Lundquist in 2009 after a private investigator confirmed the affair that she had been suspecting between Ms. Shackelford’s husband and Ms. Lundquist. Alan Shackelford claims that the marriage had been in trouble for some time and that they had even gone through marriage counseling unsuccessfully on three separate occasions. He also indicated that Lundquist was not his first affair. The jury returned with a $9 million judgment. The judgment was the sum of the $5 million in compensatory damages and an additional $4 million in punitive damages.

There are three elements to proving an alienation of affection case. First, the plaintiff must prove that they had a loving and affectionate marriage. Second, that love and affection must be alienated or destroyed. Finally, the plaintiff must show that the wrongful and malicious acts of the defendant caused the alienation of affection. Malice can be presumed when evidence of sexual intercourse can be demonstrated. Proving the condition of the marriage prior to the interference by the third party can be done through testimony of the plaintiff or other witnesses that had the opportunity to observe the marriage. In Heist v. Heist (1980), the plaintiff had several friends testify about the appearance of her marriage prior to the affair and was successful in her case. A review of the record in the Malecek v. Williams case appears to show that all of these elements could be met, including the presumption of malice.

North Carolina is one of only seven states that still allow individuals to bring lawsuits under the theory of alienation of affection. Those states are Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. Alienation of affection cases are based on common law and date back to times when wives were considered the property of their husbands. The cases were originally only for husbands whose marriage had been interfered with by another man. Now the suits are brought by both husbands and wives. Although the suits currently go in either direction, there are still many who are calling for the law to be abolished. In 2003 Representative Joe Hackney sponsored a bill to abolish the civil actions of alienation of affection and criminal conversation. House Bill 1047 eventually failed. The debate over the topic tends to follow party lines. Republicans favoring the tort argue it provides a way to protect marriages, while many Democrats seek the tort’s abolition due to its ineffectiveness and history of treating women as property.

While Democrats have failed to destroy alienation of affection actions legislatively, there is another route. In many states such actions have been abolished judicially.

While Democrats have failed to destroy alienation of affection actions legislatively, there is another route. In many states such actions have been abolished judicially. In 2010 a North Carolina Court of Appeals panel consisting of Judge Bryant, Judge Beasley, and Judge Steelman upheld an Onslow County verdict in an alienation of affection case; however, the issue in that case was limited to the denial of a motion for a directed verdict. The opinion written by Judge Steelman addressed the burden the plaintiff faced in the case and how the plaintiff had satisfied the low burden necessary to survive the directed verdict. The plaintiff appellee did not even file a brief in the appeal and the panel did not take the opportunity to address other issues with the tort.

The Court of Appeals has once again had an opportunity to consider the status of alienation of affection as a recognized tort in North Carolina. In the previously mentioned Malecek v. Williams case, Judge L. Todd Burke granted the defendant’s motion to dismiss Marc Malecek’s claims of alienation of affection and criminal conversation. The attorney representing Derek Williams, Kim R. Bonuomo, argued in the brief submitted to the trial court in support of the motion to dismiss that both torts violated the Due Process clause of the Fourteenth Amendment by restricting the defendant’s right to personal autonomy and his right to consensual intimate contact. Bonuomo went on to argue that the torts violate the defendant’s rights under the North Carolina Constitution, as well as his rights of free speech and freedom of association under the First Amendment of the United States Constitution.

The case was dismissed and Marc Malecek appealed to the North Carolina Court of Appeals. Judge Elmore, Judge Tyson, and Judge Dietz heard the case on March 7, 2017 during a session held at Elon University School of Law in the business courtroom. While the opinion for that case has yet to be released, generally, the Court of Appeals tries to release its opinions within 90 days of being heard, or reviewed, by the panel. That timeline can depend on caseload, as well as the complexity of cases. It is also possible that the case could move forward regardless of which way the Court of Appeals decides. If a judge on the panel offers a dissent, then the party disagreeing with the majority opinion would have the right to have the North Carolina Supreme Court hear the case. If the panel is unanimous, then the losing party can petition the North Carolina Supreme Court to hear the case. Ultimately, hearing the case would be up to the Court’s discretion.

The release of the Malecek v. Williams opinion will favor either the plaintiff or the defendant. More than that, though, it will provide further insight as to whether North Carolina will maintain its interest in protecting marriage from outside intrusion through this form of legal action. The proposed issues on appeal included in the record before the Court of Appeals places the constitutionality of both alienation of affection and criminal conversation squarely in front of the panel. Malecek v. Williams has the potential to be a case that keeps rising through the levels of state and federal courts and eventually determines the fate of alienation of affection law in all seven states that still allow it.

Eric Ditmore
About Eric Ditmore (9 Articles)
Eric is a third year law student who serves as a Staff Writer for the Campbell Law Observer. Originally from Linden, NC., Eric received his undergraduate degree in education from Fayetteville State University. Before beginning law school, he was a high school teacher and a deputy with the Cumberland County Sheriff's Office. During his time at Campbell, Eric has worked with the Cumberland County District Attorney's Office, the Fayetteville Police Department, and the law firm of Lewis, Deese, and Nance. His is interested in pursuing work in either family law or as a legal advisor for a law enforcement agency.