Clark v. Clark

• Decision Date: 07 December 2021
• Docket Number: No. COA20-446,COA20-446
• Citation: 867 S.E.2d 704
• Parties: Elizabeth Ann CLARK, Plaintiff, v. Adam Matthew CLARK and Kimberly Rae Barrett, Defendants.
• Court: North Carolina Court of Appeals

867 S.E.2d 704

Elizabeth Ann CLARK, Plaintiff,

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

No. COA20-446

Court of Appeals of North Carolina.

Filed December 7, 2021

The Charleston Law Group, by Jose A. Coker, Fayetteville, and R. Jonathan Charleston ; The Michael Porter Law Firm, by Michael Porter, Fayetteville, 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, Kimberly Barrett, ("Defendant Barrett") liable for intentional infliction of emotional distress ("IIED") and alienation of affection. Post-trial, Defendant Barrett filed a motion for judgment notwithstanding the verdict ("JNOV"), which was denied. On appeal, Defendant Barrett contends the trial court erred in admitting expert witness testimony; allowing Plaintiff, Elizabeth Clark, ("Plaintiff") to proceed with her IIED claim; and denying her motion for JNOV. After careful review of the record and applicable law, we conclude there was no error at trial and affirm the trial court.

I. Factual and Procedural Background

¶ 2 Plaintiff married Defendant, Adam Clark, ("Defendant Clark") on April 3, 2010. At the time of their marriage, Defendant Clark held the rank of Captain in the United States Army. In or around May 2012, Plaintiff placed a personal advertisement on the website Craigslist, through which she met a man with whom she had a sexual affair. Plaintiff's extramarital affair lasted approximately ten months.

¶ 3 Plaintiff testified Defendant Clark was unaware of her affair, and the couple remained together and attended several "marriage retreats" provided by the Army. During these retreats, Plaintiff and Defendant Clark completed "exercises of trying to open up to your spouse, reconnect[ing] .... [T]hey go into forgiveness of things." The couple "wrote each other letters on trying to put the past behind [them] and move forward, how much [they] really loved each other." Thereafter, the couple procreated two children in 2014 and 2015, respectively.

¶ 4 In the spring of 2016, Defendant Clark attended a training at Fort Belvoir, Virginia. While staying at Fort Belvoir, Defendant Clark met Defendant Barrett, a Lieutenant Colonel in the Army and a staff obstetrics and gynecology physician. At the time Defendants Clark and Barrett met, Defendant Barrett knew Defendant Clark was married, but felt Defendant Clark "did not have a good relationship" with his wife.

¶ 5 While at Fort Belvoir, Defendants Clark and Barrett resided in barracks. The barracks were "like a U shape and it was two floors and [Defendants Clark and Barrett] were [in] the same ... building, but [Defendant Barrett] was down on the other end." While attending their training, Defendants Clark and Barrett spent time "all alone in each other's rooms."

¶ 6 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." After Defendants Clark and Barrett met each other, 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." Because of the changes she noted in Defendant Clark's behavior, 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's room was located.

¶ 7 On or around July 4, 2016, Defendant Clark traveled home to North Carolina for Independence Day. While he was home, 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, and Plaintiff experienced "stroke-like symptoms" and went to the hospital for treatment. Plaintiff was ultimately diagnosed with "[m]igraines and stress." Defendant Clark returned to Fort Belvoir the same day Plaintiff was hospitalized.

¶ 8 In September 2016, Plaintiff discovered text messages between Defendants Clark and Barrett, in which Defendant Clark sent Defendant Barrett a picture of his penis. The picture sent was taken in a bathroom in Plaintiff and Defendant Clark's home. At the time Plaintiff 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.

¶ 9 On September 11, 2016, Plaintiff confronted Defendant Clark and asked 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.

¶ 10 Although Defendant Clark left the marital home in September 2016, the couple maintained an emotionally and sexually intimate relationship. Plaintiff testified, "It was very complicated, because he would keep coming over.... And he was holding me and we had sex a couple of times." In January 2017, Plaintiff and Defendant Clark purchased real property together. The property the couple purchased was owned by a close family friend of Plaintiff's, whom she knew through her father. Ultimately, the loan obtained to purchase the land was put in Defendant Clark's sole name, because Plaintiff "didn't really have any kind of credit or anything like that." At the time the real property was purchased, Defendant Clark and Plaintiff "were actually reconciling at that time. And [Defendant Clark] told Plaintiff that ... [they were] going to still build a house on it." At the time of trial, Defendants Clark and Barrett had built a house on the land and were residing on this property together.¹

¶ 11 In March 2017, Plaintiff and Defendant Clark executed a separation agreement, in which Defendant Clark agreed to pay $1,850 in monthly child support. The separation agreement was drafted by Defendant Clark's attorney, and Plaintiff was not represented by independent counsel at the time of its execution.

¶ 12 Throughout June and July 2017, Plaintiff and Defendant Clark engaged in sexual intercourse and recorded videos of 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 traveled to 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," in which Plaintiff's naked breasts were exposed. 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 were still texting one another, and Plaintiff sent Defendant Clark "a picture of female genitalia." It was around this time that Plaintiff discovered Defendant Barrett was pregnant with Defendant Clark's child.²

¶ 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.

¶ 15 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."

¶ 16 In March 2018, Plaintiff began interacting with Defendant Clark, who was using the alias "Brian Bragg" on the social networking platform, Kik.³ The Brian Bragg⁴ account sent Plaintiff the "topless photo," with a message saying, "Saw this floating around the internet in the Fayetteville chat rooms just letting you know." Brian Bragg also informed Plaintiff that 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...