On December 7, 2021, the North Carolina Court of Appeals published opinions in Clark v. Clark & Clark v. Barrett affirming the Cumberland County District Court jury award in favor of the Plaintiff former wife and against the paramour in an amount of $1,200,000. This result, at least as to alienation of affection (the award included damages for intentional infliction of emotional distress), could not have occurred in all but six states. Only North Carolina, Hawaii, Mississippi, New Mexico, South Dakota, and Utah still recognize this heartbalm tort. It has been abolished in all other states. There are alienation cases where a large award appears inconsistent with the conduct and unfair to the Defendant. This is not one of them.
In the companion case based on the same facts, the jury awarded damages to the former wife and against the former husband in the amount of $2,010,000.00 in damages for libel per se, unlawful disclosure of private images/revenge porn, and intentional infliction of emotional distress.
Here are my pro tips for those contemplating adultery in North Carolina gleaned from the two Clark cases. First, for the unfaithful spouse. If you are going to have a sexual affair with someone other than your spouse while married and still living with your spouse in North Carolina:
- Do not have sex in North Carolina, do not even meet with the paramour in North Carolina.
- Do not have any communication with the paramour that might create a connection between the illicit behavior and the State of North Carolina.
- Do not let your conduct lead your spouse to exhibit “stroke-like symptoms” which may ultimately lead to a diagnosis of “migraines and stress.”
- Do not send your paramour a picture of your genitalia taken in your marital home.
- When your wife threatens to call your paramour to ask if the two of you are having an extramarital affair, do not jump up really fast, chase after your spouse as she is dialing the number and allow this interaction to lead to a fight.
- Do not conceive a child together with your paramour through in vitro fertilization.
- Do not post on social media that your now estranged spouse is “super hot! Shows you what plastic surgeon and eating disorders can do for you. There’s a reason she’s been divorced twice and can’t take care of her kids. She’s a plaything, nothing more. Hope you fellas are wearing condoms, she’s got herpes.”
- Do not post on social media a photograph of your spouse’s nude breasts, saying, “Saw this floating around the internet in the local chat rooms just letting you know. This image was all over the place, and I hope she slept well knowing her fun bags were hanging out there for the world to see.”
Second, for the paramour who is having sex with a person who is married in North Carolina:
- Do not have sex in North Carolina, do not even meet with the married spouse in North Carolina.
- Do not have any communication with the paramour that might create a connection between the illicit behavior and the State of North Carolina.
- Do not agree to partake in in vitro fertilization while the couple is still married.
- Do not encourage the married spouse’s daughter to call you “Mommy.”
- Avoid conduct tending to cause severe emotional distress to the innocent spouse in the form of anxiety, sleeplessness, and severe depression and physical manifestations, including stroke-like symptoms.
- Do not conspire with the married spouse to message the innocent spouse that we will do “everything in our power to make your life miserable.”
- Do not send an email to the innocent spouse saying she was a bad mother, that she was uneducated, that she was a bad wife, and that she came from an unsuccessful family.
The Court analyzed and concluded that there was sufficient connection between the wrongful conduct and the state of North Carolina to establish subject matter jurisdiction. Further, all of the elements of alienation of affection were met as to the paramour. There was (1) a marriage with genuine love and affection; (2) the alienation and destruction of the marriage’s love and affection; and (3) that the paramour’s wrongful and malicious acts brought about the alienation of such love and affection. As to the conclusion that both wrongdoers were liable for intentional infliction of emotional distress, the Court analyzed and concluded the conduct was sufficiently extreme or outrageous. That it exceeded all bounds usually tolerated by decent society. Or, that is was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
It is our views of alienation of affection and intentional infliction of emotional of distress, for more information and discussion, please contact the Law Office of Stephen E. Robertson Team
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