Darnell v. Rupplin

• Decision Date: 20 September 1988
• Docket Number: No. 8721SC1048,8721SC1048
• Citation: 91 N.C.App. 349,371 S.E.2d 743
• Parties: Ann L. DARNELL v. Vivian RUPPLIN.
• Court: North Carolina Court of Appeals

Page 743

371 S.E.2d 743

91 N.C.App. 349

Ann L. DARNELL v. Vivian RUPPLIN.

No. 8721SC1048.

Court of Appeals of North Carolina.

Sept. 20, 1988.

Womble, Carlyle, Sandridge & Rice by Carole S. Gailor, E. Spencer Parris and Wallace R. Young, Jr., Raleigh, for plaintiff-appellee.

William M. Speaks, Jr., Richard D. Ramsey and David F. Tamer, Winston-Salem, for defendant-appellant.

ORR, Judge.

I.

On appeal, defendant contends an issue of fact exists as to which state the tort of alienation of affections took place. Defendant further argues the trial court committed prejudicial error by refusing to submit this issue of fact to the jury for determination. We agree.

A claim for "alienation of affections is comprised of wrongful acts which deprive a married person of the affections of his or her spouse--love, society, companionship and comfort of the other spouse.... The gist of the tort is an interference with one spouse's mental attitude toward the other, and the conjugal kindness of the marital relation.... [Evidence of alienation] is sufficient if there is no more than a partial loss of [a spouse's] affections." 2 R. Lee, N.C. Family Law § 207 at 553-554 (4th ed. 1980); accord, Sebastian v. Kluttz, 6 N.C.App. 201, 170 S.E.2d 104 (1969). In order for liability to arise for alienation of affections there must be active and affirmative conduct. Inaction is not enough to subject a defendant to the liability. There must be some act on the part of the defendant intended to induce or accomplish the result. One does not become liable for alienation of affections, without any initiative or encouragement, merely by becoming the object of the affections that are transferred from a spouse. It is only when there is such active participation, initiative or encouragement on the part of the defendant that he or she has in fact played a substantial part in inducing or causing one spouse's loss of the other spouse's affections, that liability arises.

2 R. Lee, N.C. Family Law § 207 at 554-555 (4th ed. 1980), quoting, Restatement (Second) of Torts § 683, comment (g) (1977).

To establish a claim for alienation of affections, plaintiff's evidence must prove: "(1) plaintiff and [her husband] were happily married and a genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and malicious acts of defendant produced the alienation of affections." Chappell v. Redding, 67 N.C.App. 397, 399, 313 S.E.2d 239, 24l, disc. rev. denied, 311 N.C. 399, 319 S.E.2d 268 (1984); Litchfield v. Cox, 266 N.C. 622, 146 S.E.2d 641 (1966).

However, to prevail under the present facts, plaintiff must do more than establish the essential elements named above.

A claim for alienation of affections is a transitory tort because it is based on transactions that can take place anywhere and that harm the marital relationship. 42 C.J.S. Husband and Wife § 683 (1975); Howle v. Express, Inc., 237 N.C. 667, 75 S.E.2d 732 (1953); Sebastian v. Kluttz, 6 N.C.App. 201, 170 S.E.2d 104. The substantive law applicable to a transitory tort is the law of the state where the tortious injury occurred, and not the substantive law of the forum state. 42 C.J.S. Husband and Wife § 683 (1975); Howle v. Express, Inc., 237 N.C. 667, 75 S.E.2d 732; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562 (1935).

In the case sub judice, defendant's involvement with plaintiff's husband, Daniel R. Darnell, spanned four states: North Carolina, Maryland, Virginia, and Washington, D.C. Of these four states, North Carolina is the only one that recognizes a legal cause of action for the tort of alienation of affections. Therefore, if the law of any of the other three states is found to be the substantive law governing this case, it cannot be tried in a North Carolina court. Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911 (1943); 3 Strong's N.C.Index 3d Courts § 21.5 (1976 & Supp. 1988).

Consequently, before North Carolina substantive law can be applied to plaintiff's action, she must prove that the tortious injury, defendant's alienation of her husband's affection, occurred in North Carolina.

II.

At trial the following evidence was produced relating to the state in which the cause of action arose.

Plaintiff's husband, Daniel R. Darnell, and defendant met in January 1984, when they were assigned to work together in the Greensboro office of G.E. Information Services Company.

Subsequently a relationship developed between Mr. Darnell and defendant, which culminated in sexual intercourse in Winston-Salem, North Carolina on 4 April 1984. Two more sexual encounters occurred between Mr. Darnell and defendant in North Carolina between 5 April and 13 April 1984. In April 1984, Mr. Darnell's work in Greensboro ended, and he returned to his wife and children at their home in Virginia.

Defendant and Mr. Darnell, however, maintained contact by telephone and mail. They also arranged to meet in Virginia on 31 May 1984, 1 June 1984, and August 1984; in Washington, D.C. in either July or August 1984; and in Maryland in July 1984, October 1984, November 1984, and December 1984, where according to the testimony they engaged in sexual relations.

On 27 December 1984, Mr. Darnell left plaintiff and his family and went to defendant's home in Winston-Salem, North Carolina. He stayed with defendant until 1 January 1985. Mr. Darnell then rented an apartment in Gaithersburg, Maryland and relocated there.

Mr. Darnell and defendant continued to see each other after his separation from plaintiff. He visited defendant at least three times in North Carolina, and she met with him numerous times in Maryland. They also engaged in sexual relations from 27 December 1984 until July 1985, when Mr. Darnell told defendant he wished to reconcile with plaintiff.

In August 1985, Mr. Darnell returned to plaintiff, but a short time later in September 1985 he left her for the second time.

Mr. Darnell and defendant resumed their relationship by meeting on 25 September 1985 in Maryland. They communicated by telephone and mail from 25 September 1985 until November 1985, when they renewed their sexual relationship during a visit by Mr. Darnell to defendant's home in North Carolina.

From November 1985 until July 1986, Mr. Darnell and defendant traveled frequently between North Carolina and Maryland to be together. Finally in July 1986, defendant moved to Gaithersburg, Maryland, where Mr. Darnell resided. A month before the trial, April 1987, plaintiff and Mr. Darnell's divorce became final. At the time of the trial, defendant and Mr. Darnell were still involved in a relationship.

Based upon the evidence set forth above, defendant contends that a question of fact is present as to the state in which defendant alienated Mr. Darnell's affections. We agree with defendant's contention.

III.

To determine whether this question should have been presented to a jury for determination, we must examine N.C.G.S. § 1A-1, Rule 38.

Rule 38 governs the issues a jury may decide. Subsection (b) of Rule 38 permits a party in a suit to demand a jury trial for any issue triable of right by a jury. N.C.G.S. § 1A-1, Rule 38(b) (1983). Subsection (c) of this rule further says, when a party demanding a jury trial fails to specify which issues the jury will decide, he is deemed to have demanded a jury trial for all triable issues. N.C.G.S. § 1A-1, Rule 38(c) (1983).

An issue that arises under the pleadings and is determinative of the parties' rights in an action is triable of right by a jury. Uniform Service v. Bynum International, Inc., 304 N.C. 174, 282 S.E.2d 426 (1981); Johnson v. Lamb, 273 N.C. 701...