Pharr v. Beck

Decision Date20 November 2001
Citation147 NC App. 268,554 S.E.2d 851
CourtNorth Carolina Court of Appeals
PartiesRuby Deaton PHARR, Plaintiff, v. Joyce W. BECK, Defendant.

Potter & McCarl, P.A., by Lucy R. McCarl, Lenoir, for plaintiff-appellee.

The Law Firm of J. Richardson Rudisill, Jr., by John M. Lewis, Hickory, for defendant-appellant.

GREENE, Judge.

Joyce W. Beck (Defendant) appeals a judgment filed 18 August 2000 pursuant to a jury verdict awarding damages to Ruby Deaton Pharr (Plaintiff) in the amount of $86,250.00 for Defendant's alienation of the affection of Plaintiff's husband Walter Pharr (Pharr) and $15,000.00 for criminal conversation with Pharr. Defendant's assignments of error, however, only relate to the alienation of affection claim.

On 11 September 1998, Plaintiff filed a complaint against Defendant for alienation of affection and criminal conversation. The evidence at trial, construed in the light most favorable to Plaintiff, Meacham v. Bd. of Educ., 59 N.C.App. 381, 383, 297 S.E.2d 192, 194 (1982) (delineating standard of review for directed verdict motion), established Plaintiff and Pharr were married for approximately ten years when Defendant and Pharr became acquainted in the early 1990's. Defendant, who worked at the same company as Pharr and shared Pharr's passion for running, had approached and asked Pharr if he would like to run and train with her. By June of 1992, Pharr ran almost daily, oftentimes with Defendant. Plaintiff supported Pharr's hobby and liked to accompany him when he competed in races.

In 1993, after competing in a race, Pharr suffered a heart attack. Defendant, who was with him at the time, notified Plaintiff and then drove her to the hospital. At the hospital, Defendant followed Plaintiff into the intensive care unit and held Pharr's hand. When Pharr was subsequently transferred to a different hospital, he insisted Plaintiff let Defendant know. Pharr's hospital stay lasted two weeks, and during that time Defendant visited Pharr on both weekends, bringing him a gift on one occasion. This was one of several gifts Defendant gave Pharr over the course of time.

Despite a doctor's warning not to run again for a while, Pharr resumed his running routine with Defendant just two days after his release from the hospital. Pharr stopped telling Plaintiff where he would be running and also discouraged Plaintiff from attending his races. Sometime later in 1993, Plaintiff felt the relationship between Pharr and Defendant was getting out of hand. Pharr seemed to spend more time alone with Defendant than he did with Plaintiff, and when Pharr was at home, he would constantly talk about Defendant. Plaintiff also worried about the looks Defendant gave Pharr, which to Plaintiff indicated more than friendship. Plaintiff confronted Pharr about his relationship with Defendant, and Pharr, after an initial display of indignation, promised to spend less time with Defendant.

Nevertheless, Pharr and Defendant continued running together and, beginning in 1996, Pharr and Defendant ate lunch together on a regular basis. In April 1996, Pharr told Plaintiff he was unhappy and wanted to move out. Pharr, however, continued to live with Plaintiff until 8 June 1996, when Pharr and Plaintiff separated. During the six-week period Pharr remained in the marital home (just prior to his separation from Plaintiff), Plaintiff discovered Defendant had given Pharr a phone card along with a piece of paper containing Defendant's telephone number and instructions on how to call her long distance while Pharr and Plaintiff were on vacation. With Defendant's permission, Pharr also began using Defendant's post office box. The month prior to Pharr's separation from Plaintiff, Pharr spent many evenings remodeling Defendant's home, which also became his home sometime after the separation.

Deborah Coffee (Coffee), a nurse whom Plaintiff had employed to care for her parents, testified she had seen Defendant and Pharr running together on numerous occasions before 8 June 1996 and that they "looked affectionate at times." She had also observed them "hugged up" on one occasion prior to the date of separation. Lester Beck (Beck), who was married to Defendant during the period covered by his testimony, testified that, in April 1994, he came home unexpectedly to find the back door locked. When Defendant opened the door for him, he saw Pharr coming from the bedroom area where Beck later noticed two mixed drinks on the night stand. Pharr apologized to Beck and Defendant offered to move out of the home. Defendant admitted to having had sexual intercourse with Pharr in December 1996, some six months after Pharr and Plaintiff separated.

Defendant moved for a directed verdict at the close of Plaintiff's evidence and at the close of all the evidence and for a judgment notwithstanding the verdict after return of a jury verdict in Plaintiff's favor. The trial court denied the motions and entered a judgment in the amount of $101,250.00.

The issues are whether: (I) evidence of post-separation activities between Pharr and Defendant is relevant to Plaintiff's alienation of affection claim; and (II) there is substantial evidence Defendant's malicious acts produced a loss of Pharr's affection for Plaintiff.

A claim for alienation of affection requires proof of three elements: (1) there was a marriage with love and affection existing between the husband and wife; (2) that love and affection was alienated;1 and (3) the malicious acts of the defendant produced the loss of that love and affection. Gray v. Hoover, 94 N.C.App. 724, 727, 381 S.E.2d 472, 473, disc. review denied, 325 N.C. 545, 385 S.E.2d 498 (1989). Defendant, in her brief to this Court, admits Plaintiff presented substantial evidence of the first two elements of the tort of alienation of affection but argues Plaintiff failed to present sufficient evidence that "Defendant committed `malicious conduct' which caused the alienation of affections of Plaintiff's spouse." Accordingly, we address only the sufficiency of the evidence with respect to the third element, which has two parts: malice and proximate cause.

Malicious act

A malicious act, in the context of an alienation of affection claim, has been loosely defined to include any intentional conduct2 that "would probably affect the marital relationship." 1 Suzanne Reynolds, Lee's North Carolina Family Law § 5.46(A), at 395 (5th ed.1993) [hereinafter 1 Reynolds]; see Heist v. Heist, 46 N.C.App. 521, 523, 265 S.E.2d 434, 436 (1980)

("unjustifiable conduct causing the injury complained of"); see also Sebastian v. Kluttz, 6 N.C.App. 201, 206, 170 S.E.2d 104, 106 (1969) ("a reckless indifference to the rights of others"). Malice is conclusively presumed upon a showing the defendant has engaged in sexual intercourse with the alienated spouse. Bishop v. Glazener, 245 N.C. 592, 596, 96 S.E.2d 870, 873 (1957); 41 Am.Jur.2d Husband and Wife § 466 (1968).

Proximate cause

A defendant's malicious conduct also must have proximately caused the alienation of the spouse's love and affection for the plaintiff spouse. It is not necessary that the defendant's conduct be the sole cause of the loss of love and affection because the proximate cause element is satisfied if the conduct is "the controlling or effective cause." Heist, 46 N.C.App. at 523,265 S.E.2d at 436. A person, however, "is not liable for merely becoming 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). Liability arises only if there is some "active participation, initiative or encouragement on the part of the defendant." Id. The alienated spouse's consent to or even initiation of the conduct that led to the loss of affection provides no defense to a plaintiff's claim.3 1 Reynolds, at 399.

I

In this case, Defendant argues the merits of the alienation of affection claim must be evaluated based solely on the events occurring prior to 8 June 1996, the date Pharr and Plaintiff separated. Plaintiff, on the other hand, contends her claim is properly founded on events occurring at any time prior to the spouses' divorce, including that period of time after the spouses separate. There is authority for Plaintiff's position, and it is based on the rationale "that even though the spouses are living apart, there is always a chance of reconciliation." 1 Homer H. Clark, The Law of Domestic Relations in the United States § 12.2, at 656-57 (2d ed.1987). This principle, however, is incompatible with our current alimony entitlement statute that defines "marital misconduct" as including only those "acts that occur during the marriage and prior to or on the date of separation," N.C.G.S. § 50-16.1A(3) (1999), and simply permits consideration of "incidents of post date-of-separation marital...

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11 cases
  • McCutchen v. McCutchen
    • United States
    • North Carolina Supreme Court
    • May 3, 2005
    ...pleaded and all facts with reference thereto are admitted, the question of limitations becomes a matter of law."). In Pharr v. Beck, 147 N.C.App. 268, 554 S.E.2d 851 (2001), plaintiff-wife was awarded damages based on the alienation of her husband's affections by defendant-mistress. The tri......
  • Oddo v. Presser
    • United States
    • North Carolina Court of Appeals
    • June 17, 2003
    ...separated, but before they divorced. However, plaintiff may not recover damages for post-separation conduct. Pharr v. Beck, 147 N.C.App. 268, 273, 554 S.E.2d 851, 855 (2001) (in an action for alienation of affections, spouse may not recover damages for postseparation ...
  • Nunn v. Allen
    • United States
    • North Carolina Court of Appeals
    • December 17, 2002
    ...was alienated; and (3) the malicious acts of the defendant produced the loss of that love and affection." Pharr v. Beck, 147 N.C.App. 268, 271, 554 S.E.2d 851, 854 (2001) (footnote omitted). With respect to the first element, the plaintiff need not prove that he and his spouse had a marriag......
  • McCutchen v. McCutchen
    • United States
    • North Carolina Supreme Court
    • January 27, 2006
    ...In holding plaintiff's claim was barred by the statute of limitations, the Court of Appeals majority relied on Pharr v. Beck, 147 N.C.App. 268, 554 S.E.2d 851 (2001). Pharr held that alienation claims must be based on pre-separation conduct and that post-separation conduct is admissible onl......
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