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The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina, 63 N.C

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The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina, 63 N.C NORTH CAROLINA LAW REVIEW Volume 63 | Number 6 Article 26 8-1-1985 Cannon v. Miller: The rB ief Death of Alienation of Affections and Criminal Conversation in North Carolina James Leonard Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation James Leonard, Cannon v. Miller: The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina, 63 N.C. L. Rev. 1317 (1985). Available at: http://scholarship.law.unc.edu/nclr/vol63/iss6/26 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Cannon v. Miller: The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina Two facts were certain: that on October 15, 1979, Haywood Cannon and his wife Rachel were separated, and that on May 20, 1981, they were divorced. 1 The circumstances of Rachel's relationship with Jeffrey Miller were less clear. Few would have approved had it begun before Rachel's separation from Hay- wood, but perhaps the relationship began innocently after the Cannons' mar- riage had finally failed. This moral distinction, however, does not make a difference under the tort law of North Carolina. In either event, the law offers "heart balm' 2 to Haywood. If Rachel and Jeffrey had engaged in sexual rela- tions before the divorce, Haywood could recover damages in an action for crimi- nal conversation-despite the couple's separation. 3 If the relationship began before the separation, Haywood was likely to prevail in an action for alienation of affections. 4 These causes of action are ancient and are entrenched in the law of North Carolina. 5 The North Carolina Court of Appeals, however, abolished these causes of action in the recent case of Cannon v. Miller,6 temporarily de- stroying Haywood's hope of recovery. Haywood's chances for recovery, how- ever, were restored three months later when the North Carolina Supreme Court vacated the court of appeals' decision on procedural grounds and remanded the case for trial.7 The supreme court made its reversal without reaching the merits of the case and without reviewing the viability of causes of action for alienation of affections and criminal conversation. This Note analyzes the court of appeals' decision in Cannon and concludes that, despite the court of appeals' mispercep- tion of its ability to abolish the causes of action, 8 the merits of the case were correctly resolved. 1. Cannon v. Miller, 71 N.C. App. 460,460-61, 322 S.E.2d 780, 783 (1984), vacated, 313 N.C. 324, 327 S.E.2d 888 (1985). 2. "The poetic name 'Heart Balm' refers to a financial soothing of the pocketbook of a victim in compensation for an unfortunate affaire de coeur." K. REDDEN, MODERN LEGAL GLOSSARY 241 (1980). A heart balm action is a legal term of art referring to civil actions for loss of romantic love. Id. See infra notes 16-50 and accompanying text. 3. See infra notes 36-50 and accompanying text. 4. See infra notes 18-35 and accompanying text. 5. Bishop v. Glazener, 245 N.C. 592, 595, 96 S.E.2d 870, 873 (1957). The court in Bishop stated: The existence of a cause of action for damages in favor of a husband against one who wrongfully and maliciously alienates the affections of his wife depriving him of his conjugal rights to her consortium has long been recognized in England and this country. This is a fundamental common law right. Id. 6. 71 N.C. App. 460, 322 S.E.2d 780 (1984), vacated, 313 N.C. 324, 327 S.E.2d 888 (1985). 7. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). The supreme court allowed plain- tiff's petition for discretionary review for "the sole purpose of vacating the decision of the Court of Appeals purporting to abolish the causes of action for Alienation of Affections and Criminal Conver- sation." Id. The supreme court stated that the court of appeals had "acted under a misapprehension of its authority to overrule decisions of the Supreme Court of North Carolina and its responsibility to follow those decisions, until otherwise ordered by the Supreme Court." Id. 8. See supra note 7. 1318 NORTH CAROLINA LAW REVIEW [Vol. 63 In Cannon the North Carolina Court of Appeals abolished the causes of action for alienation of affections and for criminal conversation. Plaintiff hus- band, acting pro se, brought both actions against Jeffrey Miller, a Pitt County attorney, seeking a total of $250,000 in compensatory and punitive damages. 9 In support of his action for alienation, he alleged that his wife had taken a job as deputy clerk at the Pitt County Courthouse in May 1979, that she had become acquainted with defendant that summer, and that by late September or early October defendant had persuaded his wife to have sexual relations. Plaintiff al- leged that defendant's activity" 'affected the will' of [his] wife and caused her 'to transfer her love, loyalty, and devotion from this plaintiff to the defendant' " and that "the influence was so strong that plaintiff's wife showed an 'obvious loss' of the genuine love and affection that had existed during the marriage until that time."'1 To support his action for criminal conversation, plaintiff alleged that defendant had engaged in sexual relations with plaintiff's spouse at various times before the divorce.1 1 Defendant responded by filing a motion to dismiss on the grounds that the causes of action were unconstitutional, or, alternatively, were contrary to the public policy of North Carolina. This motion was denied.1 2 The court did, however, grant defendant's motion for summary judgment based on affidavits and exhibits (the Cannons' divorce records) which indicated that the marriage had been unhappy and that defendant's relationship with the spouse had begun after the separation. 13 Plaintiff appealed, and defendant cross-appealed the de- nial of his motion to dismiss. After holding that summary judgment had been improperly granted, 14 the court of appeals agreed with defendant that the ac- tions should have been dismissed. The court based its holding on its conclusion that alienation of affections and criminal conversation are archaic concepts that serve no purpose in modern society. 15 Criminal conversation and alienation of affections are tort actions that seek to protect the marital relationship against intentional interference by third par- ties. Along with seduction and breach of promise to marry, they are com- monly-and derisively-termed "heart balm" actions since they purport to award money damages for emotional harm.1 6 The specific interest protected is one spouse's right to the other's consortium.1 7 Though these actions often are brought against the same defendant and arise from the same set of events, they are historically separate and involve different elements of proof. Actions for alienation of affections evolved from a husband's common-law right to recover from anyone who intentionally "enticed" his wife to leave the 9. Cannon, 71 N.C. App. at 460, 322 S.E.2d at 783. 10. Id. at 461, 322 S.E.2d at 783. 11. Id. 12. Id. at 461-62, 322 S.E.2d at 783. 13. Id. at 462, 322 S.E.2d at 783-84. 14. Id. at 463-70, 322 S.E.2d at 784-88. 15. Id. at 497, 322 S.E.2d at 803-04. 16. W. PROSSER & W. KEETON, THE LAW OF TORTS § 124, at 929 (5th ed. 1984). 17. See infra notes 18-35 and accompanying text. 1985] TORTS 1319 home, with the result that he lost his wife's society and services.18 The action of enticement was based on general common-law rules governing the master-ser- vant relationship and the view that the wife was the husband's servant. 19 This principle was first articulated in the 1745 English case of Winsmore v. Green- 22 bank,20 and was commonly followed in this country,21 except in Louisiana. North Carolina recognized the action of enticement in the 1849 case of Barbee v. 23 Armstead. Early actions in enticement had little to do with the emotional state of mar- riage; rather, they sought to protect a husband's right to his wife's consortium. Consortium, in its traditional sense, has been defined as "a bundle of legal rights to the alliterative trio of the services, society, and sexual intercourse of the wife."2 4 The wife's duty to the husband derived from her legally inferior posi- tion, which essentially made her the husband's servant. One commentator describing the wife's status observed: It appears. that the foundation of the husband's right of action for the loss of consortium is based on the idea that the wife is her hus- band's servant, since an interference with the service of a servant is an actionable trespass. The wife is sub virga viri sui, is classified with the servants, and both wife and servants are considered chattels. The very nature of the relationship and the duties which it imposed on the wife together with her inferiority and subservience easily gave to the hus- band proprietary interest in2 5her, and in turn led to proprietary actions for the loss of her services. Actions for enticement, however, have little utility in an age in which the wife is viewed as a partner in marriage rather than as her husband's servant.
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