Hutelmyer v. Cox

• Citation: 133 NC App. 364,514 S.E.2d 554
• Decision Date: 01 June 1999
• Docket Number: No. COA98-624.,COA98-624.
• Court: Court of Appeal of North Carolina (US)
• Parties: Dorothy Rowen HUTELMYER, Plaintiff, v. Margie B. COX, Defendant.

514 S.E.2d 554

133 NC App. 364

Dorothy Rowen HUTELMYER, Plaintiff, v. Margie B. COX, Defendant.

No. COA98-624.

Court of Appeals of North Carolina.

June 1, 1999.

Walker & Bullard, by Daniel S. Bullard, Gibsonville, for plaintiff-appellee.

Wishart, Norris, Henninger & Pittman, P.A., by Pamela S. Duffy, Burlington, for defendant-appellant.

TIMMONS-GOODSON, Judge.

Margie B. Cox (defendant) appeals from an order denying her motion for a new trial or, in the alternative, for remittitur of the compensatory and punitive damages awarded to Dorothy Rowen Hutelmyer (plaintiff) in her action for alienation of affections and criminal conversation. Having thoroughly examined defendant's assignments of error, we uphold the decision of the trial court. Plaintiff brought this action against defendant on 8 March 1996 for alienating the affections of her husband and for criminal conversation. Plaintiff's evidence tended to show the following facts. Plaintiff and Joseph Hutelmyer were married on 14 October 1978 and lived together with their three children until 5 January 1996, when Mr. Hutelmyer left the marital home to live with defendant. Plaintiff and Mr. Hutelmyer subsequently divorced, and on 15 May 1997, he and defendant were married.

Throughout the 1980's and into the early 1990's, plaintiff and Mr. Hutelmyer had what plaintiff described as "a fairy tale marriage"—one that was loving, warm, and devoted. They vacationed together with their family, and plaintiff often traveled with Mr. Hutelmyer on business trips to England, Hawaii, Arizona, Florida, West Virginia, Boston and San Francisco. Together, they also coached their children's soccer teams and volunteered in church and community organizations.

Mr. Hutelmyer often expressed his love for plaintiff by writing romantic poetry for her. In 1981, Mr. Hutelmyer wrote a poem entitled "Why I Love You," and in 1990, he wrote the sequel entitled "Why I Love You, II" as a gift for plaintiff on Valentine's Day. Mr. Hutelmyer conceded that "things must have been going pretty well then ... to write that poem and give it to her." For Valentine's Day in 1992, Mr. Hutelmyer recorded a collection of love songs for plaintiff and gave her a card, in which he drew a heart and wrote "1992." The couple also maintained an active sexual relationship, engaging in sex at least once or twice per week.

During the marriage, Mr. Hutelmyer was employed at Seaboard Underwriters, and defendant began work as his secretary in 1986. According to her co-workers, defendant's demeanor when she began her employment was "matronly." She wore predominantly dark clothing and long skirts. Then, in May of 1992, defendant separated from her husband, and she, thereafter, became openly flirtatious and spent increasingly more time alone with Mr. Hutelmyer. Defendant's co-workers testified that she changed her appearance. She cut and dyed her hair and wore short skirts, low-cut blouses, and tight clothing to the office. At or near the same time, defendant and Mr. Hutelmyer began to arrive at work together or within minutes of each other, to dine together alone, and to work late hours at the office. Many nights, defendant and Mr. Hutelmyer were the only employees working late. The testimony of defendant's co-workers also revealed that although defendant rarely traveled in connection with her employment prior to 1990, in 1992, she began accompanying Mr. Hutelmyer on business trips.

Plaintiff's evidence further showed that beginning in 1993, Mr. Hutelmyer began to spend a considerable amount of time at defendant's home. Defendant's former neighbor testified that she frequently saw Mr. Hutelmyer's vehicle parked at defendant's home overnight, from approximately 9:00 p.m. until 5:30 a.m. the following morning. In addition, a co-worker of defendant and Mr. Hutelmyer testified that when she visited her parents, who resided near defendant, she observed Mr. Hutelmyer's car at defendant's house at all hours of the day and night.

Co-workers of defendant and Mr. Hutelmyer also testified that the couple flaunted their familiarity with one another. The lovers would hold hands at the workplace, and defendant would sit in Mr. Hutelmyer's office in a dress with her legs thrown sideways across the chair. Additionally, defendant often straightened Mr. Hutelmyer's ties and brushed lint from his suits. During a workrelated outing at a Putt-Putt facility, defendant stood very close to Mr. Hutelmyer and ate ice out of his drinking cup.

As defendant and Mr. Hutelmyer became closer, he began to spend less time with his wife and family. Plaintiff testified that their sexual relationship began to deteriorate because Mr. Hutelmyer began to lose interest in her sexually. On one occasion in 1992 when plaintiff attempted to initiate intimacy with her husband, he stated, "I—I don't feel right about doing this." When she asked him what was wrong, he claimed to be experiencing work-related pressures but maintained that he was still very much in love with her. Plaintiff further testified that Mr. Hutelmyer began coming home very late at night, and when he went to their children's evening soccer games, he would not come home with the family after the games were over, claiming that he had to go back to work.

Plaintiff also recalled that in 1992, Mr. Hutelmyer stopped allowing her to travel with him on business trips. When she questioned him about the change, he told her that there had been a change in the company policy which excluded spouses from workrelated trips. Despite the changes in Mr. Hutelmyer's behavior, plaintiff believed that her husband still loved her. She continued to regard their marriage as strong and loving, until 1994, when Mr. Hutelmyer lost all desire to have sex with plaintiff and their sexual relationship ceased. The couple, nonetheless, remained together until 5 January 1996, when Mr. Hutelmyer told plaintiff that he was leaving. Plaintiff testified that she was shocked and heartbroken by the news, because it was the first time they had mentioned separation.

According to defendant, she and Mr. Hutelmyer began a sexual relationship in 1994, which continued, with few interruptions, throughout the duration of his marriage to plaintiff. Defendant claimed that Mr. Hutelmyer had told her that he and plaintiff were separated, and she believed that he had moved out of the marital home and into an apartment. Mr. Hutelmyer told defendant at various times in their relationship that he wanted to end the affair and try to work things out with his wife. Invariably, however, they resumed their relationship, and on 1 January 1996, Mr. Hutelmyer gave defendant an engagement ring. On 5 January 1996, he left the marital home and moved in with defendant.

At the close of plaintiff's evidence and again at the close of all the evidence, defendant moved for a directed verdict on all claims. The trial court denied the motions, and the case was submitted to the jury. The jury returned a verdict finding defendant liable for alienation of affections and criminal conversation, for which the jury awarded plaintiff $500,000 in compensatory damages and $500,000 in punitive damages. Defendant's subsequent oral motions for judgment notwithstanding the verdict (j.n.o.v.), to set aside the award of punitive damages, and for remittitur were all denied. Then, on 15 August 1998, defendant filed a written motion for a new trial under Rule 59(a) of the North Carolina Rules of Civil Procedure. The trial court denied the motion by order dated 30 September 1997, and defendant appeals.

Defendant, by her first assignment of error, contends that the trial court erroneously denied her motions for directed verdict and j.n.o.v. on plaintiff's claim for alienation of affections. Defendant argues that the evidence was insufficient as a matter of law to show that she acted maliciously in alienating the affections of plaintiff's husband. We must disagree.

A motion for directed verdict or j.n.o.v. tests the sufficiency of the evidence to carry the case to the jury. Chappell v. Redding, 67 N.C.App. 397, 399, 313 S.E.2d 239, 241 (1984). In deciding whether to grant or deny a motion for directed verdict or j.n.o.v., the trial court must examine the evidence in the light most favorable to the plaintiff, who is entitled to the benefit of every inference and intendment that may reasonably be drawn from the evidence. Id. Where, after engaging in such an analysis, the trial court finds that there is more than a scintilla of evidence supporting each element of the plaintiff's claim, the motion for directed verdict or j.n.o.v. should be denied. Owen Trucking, Inc. v. J.A. Morkoski, 131 N.C.App. 168, 171-172, 506 S.E.2d 267, 270 (1998).

To survive a motion for directed verdict or j.n.o.v. on a claim for alienation of affections, the plaintiff must present evidence to show that: "(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, 67 N.C.App. at 399,313 S.E.2d at 241. A defendant is not liable for the tort simply because she has "becom[e] the object of the affections that are alienated from a spouse." Peake v. Shirley, 109 N.C.App. 591, 594, 427 S.E.2d 885, 887 (1993). "There must be active participation, initiative or encouragement on the part of the defendant in causing one spouse's loss of the other spouse's affections for liability to arise." Id. However, it is not necessary that the malicious conduct of the defendant, by itself, provoke the alienation of affections. Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980). All that is necessary to establish the tort is to show that the wrongful acts of the defendant were "the controlling or effective cause of the alienation, even though there were other causes, which might have contributed to the alienation."...