UNMASKING DAMAGES CAROLYN WOODRUFF JD, CPA, CVA WOODRUFF FAMILY LAW GROUP 420 WEST MARKET STREET GREENSBORO, NC 336-272-9122 [email protected] Carolyn Woodruff, J.D., CPA, CVA is a North Carolina Family Law Specialist and President of the preeminent Woodruff Family Law Group in Greensboro, North Carolina. She was graduated from Duke Law School with High Honors where she served as Research and Managing Editor of the Duke Law Review. As a North Carolina CPA, Carolyn has been a trailblazer in the area of business valuation and is a frequent writer and lecturer on business valuation and federal taxation. Carolyn is a Certified Valuation Analyst having met the requirements of this designation by the National Association of Certified Valuation Analysts. She serves on the public board of Blue Ridge Bankshares, Inc. (BRBS) and the local board of Carolina State Bank in Greensboro, NC. She is the only North Carolina female fellow in the distinguished American College of Tax Counsel. She is an instrument-rated multi-engine airplane pilot and avid ballroom show dancer. 1 TABLE OF CONTENTS ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION .................................... 3 I. Scope note ............................................................................................................................... 3 II. Alienation of affection ........................................................................................................... 3 III. Criminal conversation .......................................................................................................... 8 IV. Discovery case study .......................................................................................................... 12 V. Damages awards .................................................................................................................. 14 JURY INSTRUCTION – MAIN .................................................................................................. 19 N.C.P.I.—Civil 800.20 .............................................................................................................. 19 N.C.P.I.--Civil 800.22 ............................................................................................................... 23 N.C.P.I.—Civil 800.23 .............................................................................................................. 25 N.C.P.I.—Civil 800.23A ........................................................................................................... 28 N.C.P.I.—Civil 800.25 .............................................................................................................. 30 N.C.P.I.—Civil 800.26 .............................................................................................................. 33 N.C.P.I.—Civil 800.27 .............................................................................................................. 35 N.C.P.I.—Civil 800.27A ........................................................................................................... 37 JURY INSTRUCTION – PRESENT VALUE ............................................................................. 39 N.C.P.I.—Civil 810.96 .............................................................................................................. 39 N.C.P.I.—Civil 810.14 .............................................................................................................. 41 JURY INSTRUCTION – PER DIEM .......................................................................................... 44 N.C.P.I.—Civil 810.56 .............................................................................................................. 44 JURY INSTRUCTIONS-PUNITIVE DAMAGES ...................................................................... 46 N.C.P.I.—Civil 810.98 .............................................................................................................. 46 DR. BROD ECONOMIC REPORT ............................................................................................. 48 2 ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION Carolyn J. Woodruff Woodruff Family Law Group I. Scope note This presentation sets forth the elements of alienation of affection and criminal conversation. Part II covers the elements, damages, and statute of limitations for alienation of affection; Part III covers the same for criminal conversation. Part IV provides a case study on a discovery issue. Part V discusses alienation of affection and criminal conversation appellate cases upholding large damage awards and identifies factors supporting those awards. There have been several challenges to the torts of alienation of affection and criminal conversation, including a 2017 case in which the Court of Appeals rejected constitutional challenges based on Due Process and First Amendment grounds. Malecek v. Williams, 804 S.E.2d 592 (N.C. Ct. App. 2017), review denied, 370 N.C. 381, 807 S.E.2d 574 (2017). II. Alienation of affection Alienation of affection is the malicious and wrongful alienation of a genuine marital relationship between the plaintiff and his spouse. There are some differences depending on whether the cause of action arose from acts before or after October 1, 2009. The North Carolina Supreme Court held in 2006 that sexual conduct occurring after a married couple has separated, but before their divorce, is sufficient to support claims for alienation of affection. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). However, in 2009, the General Assembly codified alienation of affection in a statute specifically limiting the torts to arise only from acts committed prior to a married couple’s separation. N.C. Gen. Stat. § 52-13(a). A. Elements 1. Genuine marital relationship Plaintiff and his spouse were married and a genuine marital relationship existed between them. a. A “genuine marital relationship” is one where some degree of love and affection exists between the spouses. Affections include love, society, companionship, and comfort of the other spouse. Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988). 3 Legally protected marital interests include the affections, society and companionship of the other spouse, sexual relations and the exclusive enjoyment thereof. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969). b. The marital relationship need not be a perfect one nor one free of discord. A plaintiff need not prove a marriage free from discord, only that some affection existed between the spouses. The plaintiff satisfied this element where he provided evidence that he and his wife had a “loving marriage” where she did housework, prepared family meals, attended church with the family, took family trips, and had an interest in sexual relations with her husband. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002). A plaintiff must produce evidence of love and affection, but need not prove that her spouse had no affection for anyone else or that the marriage was one of “untroubled bliss.” McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). The plaintiff satisfied this element where she produced evidence that the couple purchased a car together, maintained joint finances, and participated in marriage counseling sessions, including a session in which the husband said that he was “not headed toward divorce.” The plaintiff produced sufficient evidence of a loving marriage where the couple maintained an active sexual relationship, vacationed together, she traveled with him on business trips, they coached their children’s soccer team together and volunteered in church and community organizations, and the husband often expressed his love for the plaintiff by writing romantic poetry, including a poem entitled “Why I Love You.” Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999). 2. Alienation The genuine marital relationship between the plaintiff and his spouse was alienated. Alienation means that the love and affection of the plaintiff’s spouse for the plaintiff was seriously diminished or destroyed. Diminution often does not happen all at once, and the question of when alienation occurs is usually one for the jury. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006) The plaintiff showed serious diminution or destruction by presenting evidence that his wife’s attention to housework and preparation of family meals, as well as her interest in sexual relations, began to decline. A year or two later, she stopped attending church with the family, did not want to take family trips and began sleeping separately from the plaintiff. The following year, she moved out of the marital home. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002). The plaintiff presented sufficient evidence that the love and affection that existed between he and his wife was alienated and destroyed where he testified that after the defendant started working with his wife, his wife began turning cold towards the plaintiff and their sex life started deteriorating. The plaintiff also testified that his wife turned down a trip to Europe and told him 4 she did not want to go anywhere with him. The plaintiff’s wife also told him she did not love him anymore and that she loved the defendant. Gray v. Hoover, 94 N.C. App. 724, 381 S.E.2d 472 (1989). 3. Causation, location, effect of separation The controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and his spouse was malicious and wrongful conduct on the part