Cannon v. Miller, 833SC908

• Decision Date: 04 December 1984
• Docket Number: No. 833SC908,833SC908
• Citation: 71 N.C.App. 460,322 S.E.2d 780
• Court: North Carolina Court of Appeals
• Parties: Haywood A. CANNON v. Jeffrey L. MILLER.

Page 780

322 S.E.2d 780

71 N.C.App. 460

Haywood A. CANNON v. Jeffrey L. MILLER.

No. 833SC908.

Court of Appeals of North Carolina.

Dec. 4, 1984.

Haywood A. Cannon, pro se, for plaintiff-appellant.

Dallas Clark, Jr. and James M. Roberts by James M. Roberts and Jeffrey L. Miller, pro se, Greenville, for defendant-appellee.

JOHNSON, Judge.

The plaintiff's appeal presents the question of whether the trial court erred in granting summary judgment in favor of defendant on the plaintiff's claims for alienation of affections and criminal conversation. The defendant's appeal primarily raises the question of whether these causes of action, sometimes referred to as "heart balm" torts, should be judicially abolished in this jurisdiction. Because we are of the opinion that summary judgment was erroneously entered in favor of the defendant, we must also address the question presented by the defendant. For the reasons set forth below, we conclude that there is no longer any legal or logical basis for the retention of the causes of action for alienation of affections and criminal conversation and that these tort actions should, therefore, be abolished in this jurisdiction. We first address the plaintiff's appeal.

I

Plaintiff has presented a number of procedural questions for review, however, we need not address these in light of our ultimate disposition of this appeal. Therefore, we turn directly to his substantive contentions.

The plaintiff contends that the trial court erred in granting summary judgment in favor of defendant because the evidentiary forecast disclosed the existence of genuine issues of material fact as to each of plaintiff's causes of action. We agree.

Rule 56(c) of the Rules of Civil Procedure provides, in pertinent part, that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court; his papers are to be carefully scrutinized and those of the opposing party are on the whole indulgently regarded. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). This burden may be met by the movant by either (1) proving that an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 268 S.E.2d 190 (1980); Moore v. Fieldcrest, supra. The device of summary judgment effectively forces the non-moving party to produce a forecast of the evidence which he has available for presentation at trial to support his claim or defense. Moore v. Fieldcrest, supra 296 N.C. at 470, 251 S.E.2d at 422. Rule 56 authorizes the trial court to determine only whether a genuine issue of facts exists; it does not authorize the court to decide an issue of fact. Id.

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is disclosed. Id. Claims or defenses which are not well suited to summary judgment are those in which the determination of essential elements of these claims or defenses rests within the peculiar expertise of fact finders. "Thus if there is any question as to the credibility of affiants in a summary judgment motion or if there is a question which can be resolved only by the weight of the evidence, summary judgment should be denied." City of Thomasville v. Lease-Afex, Inc., supra 300 N.C. at 655, 268 S.E.2d at 193-94; Moore v. Fieldcrest, supra 296 N.C. at 470, 251 S.E.2d at 422. Under these standards, the defendant, as the moving party, must initially either (1) prove that an essential element of plaintiff's claims for alienation of affections and criminal conversation is nonexistent or (2) show that a forecast of the evidence indicates that plaintiff will not be able to prove facts giving rise at trial to all essential elements of the claims alleged.

An action for alienation of affections is comprised of wrongful acts which are said to deprive a married person of the affections of his or her spouse, including love, society, companionship and comfort. 2 Lee, N.C.Family Law, § 207, p. 553-54 (1980). In order to sustain a cause of action for alienation of affections, the plaintiff must show the following facts:

(1) that he [plaintiff] and his wife were happily married and that a genuine love and affection existed between them;

(2) that the love and affection so existing was alienated and destroyed;

(3) that the wrongful and malicious acts of the defendant produced and brought about the loss and alienation of such love and affection.

See Hankins v. Hankins, 202 N.C. 358, 162 S.E. 766 (1932); Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980); Warner v. Torrence, 2 N.C.App. 384, 163 S.E.2d 90 (1968). In this context, the term "malice" does not necessarily mean that which proceeds from a spiteful, malignant, or revengeful disposition, but merely implies conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions the injury. If the conduct is unjustifiable, and actually caused the injury complained of, malice in law will be implied. (Citations omitted.) Cottle v. Johnson, 179 N.C. 426, 429, 102 S.E. 769, 770 (1920). The wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections; it is sufficient if that conduct is the controlling or effective cause of the alienation, even though there were other causes, which might have contributed to the alienation. Bishop v. Glazener, 245 N.C. 592, 96 S.E.2d 870 (1957); Heist v. Heist, supra. It is also sufficient if there is no more than a partial loss of the spouse's affections. 2 Lee, supra at 554.

The term "criminal conversation" is synonymous with "adultery;" the cause of action is founded on the violation of the right of exclusive sexual intercourse between spouses. Cottle v. Johnson, supra; 7 Strong's N.C. Index 3d, Husband and Wife, § 27, p. 84. The elements of the cause of action for criminal conversation are as follows:

(1) the actual marriage between the spouses;

(2) sexual intercourse between defendant and plaintiff's spouse during coverture.

Sebastian v. Kluttz, 6 N.C.App. 201, 209, 170 S.E.2d 104, 108 (1969). Alienation of affection is not a necessary element. Id.

A valid separation agreement entered into between the spouses will not necessarily bar an action for alienation of affections or for criminal conversation which occurred prior to the separation. Sebastian v. Kluttz, supra; 2 Lee, supra at 567; 7 Strong's N.C.Index, supra at 84-85. Moreover, the mere fact of separation will not bar an action for criminal conversation occurring during the separation. Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938); 2 Lee, supra at 568. The consent of the participating spouse is not recognized as a defense to either the action for alienation of affections, Chestnut v. Sutton, 207 N.C. 256, 176 S.E. 743 (1934), or to the action for criminal conversation, Bryant v. Carrier, supra.

The defendant submitted three affidavits in support of his motion for summary judgment two from Rachel Beaman, plaintiff's ex-wife, and one from defendant himself. Ms. Beaman, in her first affidavit, stated that she and the plaintiff had separated or discussed separations several times during the marriage; that since 1976 the marriage was troubled and discordant; that she and the plaintiff had a fundamental difference over matters of religious belief and lifestyle; that there had been violent episodes between them; and that the couple had initially separated in May of 1979 and did not live together thereafter. Ms. Beaman also stated that she had begun to date various other men in the late fall of 1979 and early January of 1980. She became acquainted with Jeffrey Miller, the defendant, in December of 1979 and first dated him in February of 1980. Attached to the affidavit as exhibits are copies of two judgments relating to the Cannons' divorce proceedings. The first judgment was entered on 19 March 1981 in the District Court of Greene County. The court found that the parties had initially separated in May of 1979; that Mrs. Cannon established a separate residence for herself, with plaintiff residing on his parents' property; and that the parties had attempted a reconciliation between May and 15 October 1979. Thereafter, the court found that the parties have lived totally separate and apart. Additionally, the judgment recited several instances of marital quarrelling between Rachel and Haywood Cannon that had occurred during the late spring and summer of 1980 as they related to the issue of the fitness of the parents as custodians of their minor child. Based upon its findings, the court granted Rachel Cannon a divorce from bed and board from Haywood Cannon and custody of the parties' minor child. The second exhibit consists of a judgment entered 20 May 1981, granting Rachel Cannon an absolute divorce from the plaintiff; the court finding that the action was instituted in October of 1980, and the jury having found that the parties had been living separate and apart for one year prior to the bringing of the action (October, 1979).

In response, plaintiff filed his own affidavit which essentially contradicted all of the assertions of his ex-wife regarding the quality of their marital relationship, the reasons for their separation, and the ultimate failure of the parties to successfully...