Ward v. Beaton

• Decision Date: 19 December 2000
• Docket Number: No. COA99-1277.,COA99-1277.
• Citation: 539 S.E.2d 30,141 NC App. 44
• Parties: Patricia WARD, Plaintiff, v. Kristen BEATON, Defendant.
• Court: North Carolina Court of Appeals

539 S.E.2d 30

141 NC App. 44

Patricia WARD, Plaintiff, v. Kristen BEATON, Defendant.

No. COA99-1277.

Court of Appeals of North Carolina.

December 19, 2000.

Harrison & Poore, P.A., by Hal G. Harrison, Spruce Pine, for the plaintiff-appellee.

Ronald W. Howell, P.A., by Ronald W. Howell, Burnsville, for the defendant-appellant.

LEWIS, Judge.

Plaintiff Patricia Ward brought this action against defendant, Kristen Beaton, seeking compensatory and punitive damages for (1) alienation of affections, (2) criminal conversation and (3) intentional infliction of emotional distress. At the close of plaintiff's evidence, the court granted defendant's motion for directed verdict as to the criminal conversation and intentional infliction of emotional distress claims. The jury returned a verdict in favor of plaintiff on the alienation of affections claim and awarded plaintiff $52,000 in compensatory damages and $43,000 in punitive damages. Defendant made several post-trial motions, including a motion for judgment notwithstanding the verdict pursuant to N.C.R. Civ.P. 50(b) and (c), a motion for new trial pursuant to N.C.R. Civ.P. 59(a)(9) and a motion for relief from the court's judgment pursuant to N.C.R. Civ.P. 60(b)(1), (2), (3) and (6). The trial court denied each of these motions. Defendant appeals from the court's final judgment and from the court's order denying relief pursuant to Rule 60(b). Defendant has assigned as error the trial court's denial of her motion for directed verdict on the issue of alienation of affections. On a defendant's motion for directed verdict, the trial court must determine whether the evidence, when considered in the light most favorable to the plaintiff, is sufficient to take the case to the jury. N.C.R. Civ.P. 50(a); Hutelmyer v. Cox, 133 N.C.App. 364, 369, 514 S.E.2d 554, 558 (1999),appeal dismissed, 351 N.C. 356, ___ S.E.2d ___ (2000). Where the trial court finds there is more than a scintilla of evidence supporting each element of the plaintiff's claim, the motion for directed verdict should be denied. Norman Owen Trucking v. Morkoski, 131 N.C.App. 168, 172, 506 S.E.2d 267, 270 (1998).

To survive a motion for directed verdict on a claim for alienation of affections, the plaintiff must present evidence to show: (1) that there was a marriage with love and affection; (2) that the love and affection was alienated and destroyed; and (3) that the wrongful and malicious acts of defendant produced the loss of love and affection. Hankins v. Hankins, 202 N.C. 358, 361, 162 S.E. 766, 767 (1932). The "malicious acts" required have been defined as acts constituting "`unjustifiable conduct causing the injury complained of.'" Chappell v. Redding, 67 N.C.App. 397, 400, 313 S.E.2d 239, 241 (quoting Heist v. Heist, 46 N.C.App. 521, 523, 265 S.E.2d 434, 436 (1980)), disc. review denied, 311 N.C. 399, 319 S.E.2d 268 (1984).

Plaintiff testified that prior to 1998, plaintiff thought she and her husband had "the perfect marriage." (Tr. at 15.) Plaintiff also testified Mr. Ward was a "good husband" to her and a "good father" to his children. (Tr. at 19.) See, e.g., Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641, 642 (1966)

(holding plaintiff's own testimony that her marriage was a good one sufficient to establish a marriage with love and affection). Plaintiff's evidence also tended to show that the love and affection that once existed between her and her husband was alienated and destroyed by defendant's conduct. Plaintiff began to notice a change in her husband's affections in the late spring of 1998, around the time her husband met defendant. During this time, plaintiff's husband began to "draw away" from home and started missing evening meals with his family. (Tr. at 20-21.) As he was spending less time with plaintiff and his children, he began to spend an increasing amount of time with defendant.

Plaintiff's husband, who at the time was working as a captain at the Mitchell County Sheriff's Department, first met defendant in "early 1998," when he responded to several reports of domestic disputes at her home. (Tr. at 45-46.) In June 1998, defendant began inviting plaintiff's husband to her home, and did so on numerous occasions by contacting him at work. On one occasion she arrived at the police station asking to speak to plaintiff's husband. The officers noticed she emanated a strong odor of alcohol, but she refused to take an alkasensor test and insisted that plaintiff's husband drive her home. The increasing amount of time that defendant and plaintiff's husband were spending together culminated in plaintiff's husband moving into defendant's home on 4 July 1998, where he stayed for about two weeks. The evidence indicated that a sexual relationship developed between the defendant and plaintiff's husband during this time.

We conclude this evidence was sufficient to overcome defendant's motion for directed verdict. However, the defendant maintains that absent any evidence that defendant "lured" plaintiff's husband away, the evidence on the claim of alienation of affections could not be submitted to the jury. To the contrary, "luring" by the defendant is not required to sustain a claim for alienation of affections. Scott v. Kiker, 59 N.C.App. 458, 464, 297 S.E.2d 142, 146 (1982). A defendant need not even be the initiator in such a relationship, but must be only a willing participant, making occasions for a relationship to develop. Heist, 46 N.C.App. at 525,265 S.E.2d at 437. In addition, the defendant maintains the Wards' marriage was strained before defendant entered the picture. Even so, the defendant's actions need not be the sole cause of the alienation. As long as her conduct was a "controlling" or "effective" cause of the alienation, plaintiff may prevail even in the face of other contributing factors. Bishop v. Glazener, 245 N.C. 592, 596, 96 S.E.2d 870, 873 (1957). We find the evidence sufficient to suggest that the defendant was the effective cause of the alienation in this case.

In support of her Rule 60(b) motion for relief from judgment, the defendant submitted evidence of a consent order entering a divorce from bed and board between the plaintiff and her husband on 5 August 1998, the same day the complaint in this action was filed. This consent order relieved Mr. Ward of payment of alimony, post-separation support and child support. Defendant asserts on appeal that the findings in the consent order alleviating Mr. Ward of these responsibilities evidence a fraudulent scheme on the part of plaintiff and her husband in filing this claim for alienation of affections. Defendant contends the fraud indicated by the consent order required the trial court to direct a verdict in defendant's favor.

Fraud is an affirmative defense that must be specially pleaded. N.C.R. Civ.P. 8(c). Failure to plead an affirmative defense ordinarily results in waiver of the defense. Nationwide Mut. Insur. Co. v. Edwards, 67 N.C.App. 1, 6, 312 S.E.2d 656, 660 (1984). The parties may, however, still try the issue by express or implied consent. N.C.R. Civ.P. 15(b). Defendant neither pled nor tried the case on this theory, but only made it an issue in her post-trial motion for relief from judgment. Accordingly, she cannot now present it on appeal.

Defendant also contends the trial court erred in submitting the issue of punitive damages to the jury. Defendant first contends plaintiff's demand for punitive damages did not comply with the requirements set forth in Rule 9(k) of the North Carolina Rules of Civil Procedure. Rule 9(k) states, "A demand for punitive damages shall be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages shall be averred with particularity." One of the following aggravating factors listed in N.C. Gen.Stat. § 1D-15 must be established to recover punitive damages: (1) fraud, (2) malice or (3) willful or wanton conduct. In accordance with Rule 9(k), plaintiff's complaint averred both malice and willful and wanton conduct as the relevant aggravating factors under G.S. 1D-15. Absent any additional requirement in the statute that the complaint state with particularity the circumstances underlying these factors, we find the pleadings in compliance with Rule 9(k).

Defendant also challenges the sufficiency of the evidence to support the award of punitive damages based on malice or willful or wanton conduct. It is well settled that punitive damages may be awarded in an action for alienation of affections. Heist, 46 N.C.App. at 527, 265 S.E.2d at 438; see also N.C. Gen.Stat. § 1D-1 (1999) ("Punitive damages may be awarded, in an appropriate case ..., to punish a defendant for egregiously wrongful acts."). In order for the question of punitive damages to be submitted to the jury, however, there must be evidence of circumstances of aggravation beyond the proof of malice necessary to satisfy the elements of the tort to sustain a recovery of compensatory damages. Chappell v. Redding, 67 N.C.App. 397, 403, 313 S.E.2d 239, 243 (1984). Specific circumstances of aggravation include "willful, wanton, aggravated or malicious conduct." Heist, 46 N.C.App. at 526-27, 265 S.E.2d at 438; see also N.C. Gen.Stat. § 1D-15 (1999).

Evidence of "sexual relations" will allow a plaintiff to get to the jury on the issue of punitive damages in a claim for alienation of affections. 1 Suzanne Reynolds, Lee's North Carolina Family Law, § 5.48(c) (5th ed. 1993); see also Hutelmyer v. Cox, 133 N.C.App. at 371, 514 S.E.2d at 560

(finding sufficient aggravating factors where defendant engaged in sexual relationship with plaintiff's husband, publicly displayed the affair, welcomed him into her home numerous times and called plaintiff's home to determine his whereabouts); Jennings v. Jessen, 103 N.C.App. 739, 744, 407 S.E.2d 264, 267 (1991) (finding sufficient aggravating factors where defendant engaged in sexual intercourse with plaintiff's husband, as well as ...