Clark v. Clark

• Decision Date: 07 December 2021
• Docket Number: No. COA20-447,COA20-447
• Citation: 867 S.E.2d 743
• Parties: Elizabeth Ann CLARK, Plaintiff, v. Adam Matthew CLARK and Kimberly Rae Barrett, Defendants.
• Court: North Carolina Court of Appeals

867 S.E.2d 743

Elizabeth Ann CLARK, Plaintiff,

v.Adam Matthew CLARK and Kimberly Rae Barrett, Defendants.

No. COA20-447

Court of Appeals of North Carolina.

Filed December 7, 2021

The Michael Porter Law Firm, by Michael R. Porter, Fayetteville; and The Charleston Law Group, by Jose A. Coker, Fayetteville, and R. Jonathan Charleston, for Plaintiff-Appellee.

Tharrington Smith, LLP, Raleigh, by Jeffrey R. Russell and Evan B. Horwitz, for Defendant-Appellant.

WOOD, Judge.

¶ 1 On September 17, 2019, a jury found Defendant, Adam Clark, ("Defendant Clark") liable for unlawful disclosure of private images, intentional infliction of emotional distress ("IIED"), and libel. Post-trial, Defendant Clark filed a motion for judgment notwithstanding the verdict ("JNOV"), and in the alternative, motion for new trial, which was denied. On appeal, Defendant Clark contends the trial court erred in admitting expert witness testimony; allowing Plaintiff, Elizabeth Clark, ("Plaintiff") to proceed with an IIED claim; and denying his post-trial motion. After careful review of the record and applicable law, we disagree.

I. Factual and Procedural Background

¶ 2 On April 3, 2010, Plaintiff and Defendant Clark were married. At the time of their marriage, Defendant Clark held the rank of Captain in the United States Army. In or around May 2010, Plaintiff placed a personal advertisement on the website Craigslist. Through this advertisement, Plaintiff met a man with whom she had a sexual affair. According to Plaintiff, her extramarital affair lasted approximately ten months.

¶ 3 The couple remained together and attended several "marriage retreats," through the U.S. Army. During their marriage retreats, Plaintiff and Defendant Clark completed "exercises of trying to open up to your spouse, reconnect[ing] .... [T]hey go into forgiveness of things." Thereafter, the couple procreated two children in 2014 and 2015, respectively. In October 2015, Defendant Clark was promoted to Major.

¶ 4 In the spring of 2016, Defendant Clark attended Army training at Fort Belvoir, Virginia. While staying at Fort Belvoir, Defendant Clark met Defendant, Kimberly Barrett, MD ("Defendant Barrett"). Defendant Barrett held the rank of Lieutenant Colonel in the Army and knew Defendant Clark was married at the time. While at Fort Belvoir, Defendants Clark and Barrett stayed in barracks. The barracks were "like a U shape and it was two floors and [Defendants Clark and Barrett] were [in] the same long building, but [Defendant Barrett] was down on the other end." While attending their training, Defendants Clark and Barrett "had been all alone in each other's rooms."

¶ 5 Defendant Barrett testified that her relationship with Defendant Clark started by Defendant Clark "helping [her] with homework or papers. Sometimes [she] had questions. There is a lot of acronyms in the -- field, but in the military, there are a lot of acronyms that [she] wasn't familiar with." While at Fort Belvoir, Defendant Clark told Defendant Barrett "he did not have a good relationship" with his wife.

¶ 6 While Defendant Clark completed his educational program at Fort Belvoir, Plaintiff "notice[d] a little bit of change" in her husband. Defendant Clark did not travel home to North Carolina to visit and "wasn't texting [Plaintiff] as often. One time [Plaintiff] couldn't get ahold of him and [she] tried calling his hotel room, [but he] wouldn't pick up when he was supposed to be in there .... He was short with [her] on the telephone."

¶ 7 Plaintiff used her cellphone to "trace or track" Defendant Clark's cellphone, during which time Defendant Clark's phone was "showing a different location from where his room was at." Defendant Clark's phone was "pinging ... from the other end of the hall," from where Defendant Barrett was staying.

¶ 8 When Defendant Clark came home from Fort Belvoir for Independence Day, Plaintiff discovered he "was texting a female. [She] found a number in his phone." When Plaintiff asked Defendant Clark who the female was, he replied, "I don't know what you're talking about." Finding the phone number caused Plaintiff "a lot of emotional distress." The couple argued about it, and Plaintiff experienced "stroke-like symptoms." Plaintiff was ultimately diagnosed with "[m]igraines and stress." Defendant Clark returned to Fort Belvoir shortly thereafter.

¶ 9 In September 2016, Plaintiff discovered text messages between Defendants Clark and Barrett, in which Defendant Clark sent Defendant Barrett a picture of his penis taken in Plaintiff and Defendant Clark's home. At the time she discovered the sexually explicit photograph, Defendant Clark had changed Defendant Barrett's name in his cellphone's contact information to "Jane S." Plaintiff knew "Jane S." was Defendant Barrett because she had matched the cellphone number of "Jane S." with that of Defendant Barrett.

¶ 10 On September 11, 2016, Plaintiff asked Defendant Clark if he "still had [Defendant Barrett's] number." Plaintiff threatened to call Defendant Barrett, and Defendant Clark "jumped up really fast and chased after [Plaintiff] as [Plaintiff] was dialing [Defendant Barrett's] number." Plaintiff threatened to ask Defendant Barrett if she and Defendant Clark were having an extramarital affair. Because of this interaction, the couple fought, and Defendant Clark left their marital home.

¶ 11 Although Plaintiff and Defendant Clark separated on September 11, 2016, the couple attempted reconciliation by maintaining an emotionally and sexually intimate relationship. On March 17, 2017, Plaintiff and Defendant Clark executed a separation agreement, in which Defendant Clark agreed to pay $1,850 in monthly child support to Plaintiff. The separation agreement was drafted by Defendant Clark's attorney, and Plaintiff was not represented by independent counsel at the time.

¶ 12 Throughout June and July 2017, Plaintiff and Defendant Clark engaged in sexual intercourse and recorded themselves doing so. Also in July 2017, Defendant Clark and Defendant Barrett conceived a child together through in vitro fertilization. Defendant Clark continued to maintain an intimate and sexual relationship with both his wife and with his paramour during this time. In August 2017, Defendant Clark was located in Boston, Massachusetts for additional training. Plaintiff attempted to videocall Defendant Clark through Facetime, but Defendant Clark did not answer. When Defendant Clark did not answer, Plaintiff "sent him a topless photo." Plaintiff did not send the topless photograph to anyone else.

¶ 13 In September 2017, Plaintiff and Defendant Clark stopped having sexual intercourse. Around this time, Defendant Clark began complaining about the amount he paid to Plaintiff in child support. In October 2017, Plaintiff and Defendant Clark exchanged text messages, in which Plaintiff sent Defendant Clark "a picture of female genitalia." Around that same time, Plaintiff discovered Defendant Barrett was pregnant with Defendant Clark's child.¹

¶ 14 In January 2018, Plaintiff discovered a Craigslist advertisement and believed it to be about herself. The advertisement stated,

Liz is super hot! Shows you what plastic surgeons and eating disorders can do for you in 2018. There's a reason she's been divorced twice and can't take care of her kids. She's a plaything, nothing more. Hope you fellas are wearing condoms, she's got herpes.

Plaintiff believed Defendant Clark posted the advertisement, because he "always said [she] had an eating disorder and when [they] started not getting along, he said that [she] didn't take care of [her] children and [she] was a bad mother." Plaintiff responded to the advertisement, stating that she knew Defendant Clark posted it. Whomever posted the advertisement denied being Defendant Clark. However, when Plaintiff sent insulting language to the poster of the advertisement, Defendant Clark sent Plaintiff a text message inquiring as to why he received such language.

¶ 15 In the text message, Defendant Clark included a "screenshot" of the message he received. Plaintiff observed that the message was sent to an email address with the username "elizabethclark0403." Plaintiff did not use an email address with that username but attempted to log into the email account. When Plaintiff attempted to do so, the "recovery email" matched that of Defendant Clark's personal email address.

¶ 16 In March 2018, Plaintiff began interacting with Defendant Clark, who was using the alias "Brian Bragg" on the social networking platform, Kik.² The Brian Bragg³ account sent Plaintiff the photograph of her nude breasts, saying, "Saw this floating around the internet in the Fayetteville chat rooms just letting you know." "Brian Bragg" also stated the image was "all over the place," and that he hoped Plaintiff "[slept] well knowing [her] fun bags [were] hanging out there for the world to see."

¶ 17 In May 2018, Plaintiff discovered a Facebook "weight loss" advertisement depicting Plaintiff. The advertisement was composed of a post-pregnancy photograph of Plaintiff next to the photograph of Plaintiff's nude breasts. Prior to Plaintiff finding the advertisement, "Brian Bragg" had threatened to find and post Plaintiff's post-pregnancy photographs on Kik.

¶ 18 Throughout 2018, Plaintiff's friends and co-workers contacted her when they saw "Liz Clark" profiles, using a photograph of Plaintiff as a profile picture, in Kik chatrooms soliciting "no strings attached sex." Kik business records revealed that the "Liz Clark" Kik profiles could be traced to an IP address that matched the IP address of Defendants Clark and Barrett's residence.

¶ 19 When Plaintiff's friends and co-workers notified her that they saw the saw "Liz Clark" Kik profiles, she "was extremely embarrassed" and her "heart started racing." Plaintiff also received photographs from "Brian Bragg" depicting herself and her vehicle. Attached to these photographs were messages discussing how people were following Plaintiff. One message from "Brian Bragg"...