Lingering Relics in North Carolina Tort Law: Alienation of Affection

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North Carolina’s recognition of alienation of affection is one of several nuances in North Carolina’s tort laws.  In late 2019, Kevin Howard of Greenville, North Carolina, was awarded $750,000 on his claim of alienation of affections against his former wife’s lover.  According to an article from CNN, Howard claimed that he and his wife had been married for twelve years and were attending marriage counseling at the time of their separation.  Howard then hired a private investigator and uncovered the affair.  Howard claims that his wife’s lover was a friend who had eaten dinner and spent time with the Howard family.  While the damage amount of $750,000 may seem high, it is insignificant compared to other recent awards.  North Carolina Cases of alienation of affection resulted in jaw-dropping awards of $8.8 million and $30 million in 2018 and 2011, respectively.

The Howard case is not the first North Carolina lawsuit to receive such notoriety.  Another notable example is Hutelmeyer v. Cox, 133 N.C. App. 364, 514 S.E. 2d 554 (1999).  This case involved a husband who left his wife for his secretary following a lengthy, public affair.  The wife was awarded a sum of $1,000,000 in compensatory and punitive damages for her claims of alienation of affection and criminal conversation.  This case served as the inspiration for the 1999 film “The Price of a Broken Heart.”

History of the Tort

To prevail on a claim of alienation of affection, the jilted spouse must prove that, before the commencement of the affair, he or she had a loving marriage, that the loving marriage was diminished or destroyed by the paramour’s conduct, and that it was that wrongful conduct that led to the diminishment of the marital relationship.  Of these three elements, the third is the most difficult to prove as defendants often attempt to show the marriage was already destined for failure before the affair.  Evidence in these cases typically comes in the form of private investigator reports.  The most substantial claims involve paramours who were friends of the plaintiff and who engaged in sexual activity in the plaintiff’s home.  These factors favored Kevin Howard in the 2019 case mentioned above, which created a perfect storm for the defendant.

Alienation of affection was born from English common law in the 18^th Century.  Though now actions can be brought by aggrieved spouses of either sex, the tort was born out of the premise that a wife was a husband’s chattel and that a husband should be able to seek a remedy against a paramour for the paramour’s interference with the marriage.  Although English courts were the first to recognize this civil action, England has long since abolished alienation of affection.  Forty-nine states recognized alienation of affection as a cause of action at one point or another.  Louisiana, with its deep civil law roots, is the lone state never to adopt the tort.  Despite its former popularity, the number of states that currently recognize the tort has dwindled to six.

This tort has mainly been abandoned in other states through judicial review and legislative acts.  The courts and legislature in North Carolina have made several efforts to abolish alienation of affection.  One notable effort to rid North Carolina of this tort came from the Court of Appeals in Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984).

In Cannon, the court relied on trends from other jurisdictions regarding the status of alienation of affection as its basis for abolishing both of the “heart balm” torts of alienation of affection and criminal conversation.  Criminal conversation runs hand-in-hand with alienation of affection; it is a civil action against a person who has sexual intercourse with the plaintiff’s spouse.  “Criminal conversation” is merely a pseudonym for extramarital relations.  North Carolina’s deviation from recognizing these torts was short-lived as the North Carolina Supreme Court overturned Cannon just three months later.  In a terse opinion that made no mention of the case’s facts, the Supreme Court scolded the Court of Appeals for acting outside of its authority by overruling the Supreme Court’s precedent.

Since Cannon, the state legislature has also tried on several occasions to abolish both alienation of affection and criminal conversation causes of action.  Some votes have even made it out of one of the legislature’s chambers; however, all the efforts were eventually voted down or expired.  From this history, it may be likely that the only way for the law in North Carolina to change would be a decision from the state’s Supreme Court.  However, it could be sometime before the necessary ideological shift on the court to take place.

In more recent news involving alienation of affection, several news outlets highlighted U.S. Senate Candidate Cal Cunningham’s vote to repeal North Carolina’s recognition of alienation of affection during his time in the state legislature.  These reports came amid Cunningham’s recent “sexting scandal” that emerged during the height of his campaign against the incumbent Senator Thom Tillis.  A slew of campaign advertisements and media outlets highlighted Cunningham’s alleged extra-marital affair.

Rationales

While it is easy to write alienation of affection off as an antiquated remnant of the common law, there are some conceivable benefits from its recognition.  Chief Justice Newby of the North Carolina Supreme Court offered the following rationale for the tort in 2006: “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 . . . .”  While preserving marriages within a state seems like a noble cause, one may wonder if this tort’s recognition has such an effect on marriage.  Another concern is whether the tort is an appropriate means of accomplishing this goal.

Additional scholarship provides other rationales for keeping alienation of affection.  One argument is that because the state plays a large role in marriage licensing, it should be interested in the preservation of marriages.  Another argument in favor of alienation of affection is that several third-party interference causes of action are recognized in American law.  A final argument is that loss of consortium is a readily available remedy in many other legal actions.

The rationale for alienation of affection that the state is heavily involved in the institution of marriage has weakened over time.  This was a common argument before the legalization of gay marriage on a national scale.  Alienation of affection proponents would compare states’ involvement in deciding who can marry to states’ allowing jilted spouses to sue their former spouse’s lover.  Now that same-sex marriage is no longer a state issue; this argument is diminished.

There are indeed numerous other torts that seek to redress harms caused by third parties.  Some examples of such causes of action in North Carolina are tortious interference with contractual relations and tortious interference with prospective economic advantage.  These causes of action differ from alienation of affection in that these torts protect business, trade, and occupation interests of the plaintiff.  These interests are far less personal than those protected by alienation of affection.  A lawsuit for alienation of affection is much more personal and can be much more harmful to the families involved.

Scholars also argue that alienation of affection should be recognized because loss of consortium is available to plaintiffs in different tort law areas.  While loss of consortium can be a standalone claim, it is contingent upon an injury caused by the negligence or intentional act of another.  In this vein, loss of consortium is just an avenue for additional damages in a civil suit.

There are several strong arguments for the repeal of recognizing alienation of affection as a cause of action.  One of the strongest arguments is the public nature of the lawsuit.  The 2019 case involving Kevin Howard, which made national news, exemplifies this.  In an era of social media and internet news, cases like this are available for all to see.  This publicity can be detrimental to the families involved in the suit.  As in the Howard case, the plaintiff in these cases will often have young children, and this exposure will impact their lives.  Additionally, there is little indication that alienation of affection serves as a deterrence from adultery.  Notably, North Carolina’s divorce rate is substantially higher than the national rate.

The roots of the tort’s origin also call into question the recognition of alienation of affection.  English Common Law adopted it under the presumption that a wife was the property of her husband.  Alienation of affection gave men an avenue for redress when their spouse chose to engage in extramarital affairs.  This rationale is completely antiquated in American culture today.

Conclusion

In short, North Carolina should abandon its adherence to the recognition of alienation of affection as a valid cause of action.  It is not only because of its antiquated and frankly sexist origins but also because it likely does not serve to protect marriages adequately.