Loss of love can result in lawsuit

Published 12:00 am Thursday, December 29, 2011

By Shavonne Potts
SALISBURY — Do you take this woman? Do you take this man? Will you be faithful as long as you both shall live?
Many a man and woman have exchanged those wedding vows through the centuries, but what happens when someone strays from the marriage?
Nowadays, a lawsuit.
In North Carolina, a person can sue someone who “alienated” a spouse’s affections, essentially causing interference in the marriage.
Only seven states still allow such lawsuits.
“It’s a heart balm tort, which is a private wrong for which the law provides a remedy,” said Salisbury attorney James Davis.
Recently, a Rowan jury granted Laura Delaney a remedy, awarding her $10,002 in an alienation of affection/criminal conversation lawsuit.
Davis, who did not represent Laura Delaney in this suit but has handled similar cases, said there are about 200 of these types of lawsuits filed in North Carolina a year.
Delaney filed the suit in January 2010 against Donna Johnson Kiser, a woman who volunteered at the Landis Fire Department where Delaney’s husband, Art, worked as a firefighter.
Criminal conversation is adultery, while alienation of affection is just as it says — alienating the affections of another. Laura Delaney sued for both.
In a response via attorney Rick Locklear, Kiser denied the affair, but a jury ruled in Laura Delaney’s favor.
The jury said she was entitled to recover $1 as a result of the “malicious conduct” of Kiser in alienating the affection of her husband, $1 for criminal conversation (adultery), $5,000 in punitive damages for alienation of affection, and $5,000 in punitive damages for criminal conversation.
Kiser caused the “ultimate and complete destruction of the plaintiff’s marriage to her husband,” court documents said, and as a result of her actions, the “genuine love and affection which previously existed between the plaintiff and her husband was alienated and destroyed.”
Laura Delaney said she brought the suit because Kiser involved her children. “She was coming to my house when I was at work.”
The Delaneys, who separated in December 2009, were divorced in May 2011. They had been married 19 years.
Some say North Carolina’s law regarding alienation of affection is antiquated, but Davis says it serves a purpose. The law works to uphold the sanctity of marriage and deter adultery, he said.
Critics believe in the “freedom to have relationships” and that “to end one’s marriage is an individual’s right,” Davis said.
In some cases, jurors award jilted spouses millions. Asked if such awards encourage lawsuits, Davis said some legitimate claims must be made before a person could even fathom receiving a large award.
There are far fewer legitimate claims than the general public may think, he said.
The possibility of winning millions may get people interested, but lawyers take time with clients to outline legal and factual issues of a case, he said. Simply put, some people may not have a case worth pursuing.
Kiser said she offered Laura Delaney a settlement greater than what the court awarded, but it was not taken.
“I believe the jury spoke honestly, loud and clear when they awarded her ($1 each for alienation of affection and criminal conversation) judgment. I would’ve never hoped it would’ve come to this. It’s sad that it did,” Kiser said.
Kiser, speaking of the Delaneys’ children and her own, who were brought into court, said she felt the children were the ones who suffered the most.
She just wants to move on, she said. “I’m ready to move forward.”
Art Delaney also said he felt the children were most affected.
“It was unfortunate and terrible they dragged the kids into it. Those things happen and we get through it,” he said.
Salisbury attorney Robert Inge, who represented Laura Delaney, said being in the Bible belt is likely the reason the state has failed to abolish the law.
“This state recognizes and places more emphasis on marriage,” Inge said.
The dissolution of a marriage, like the end of a business relationship, includes an economic impact because of the loss of income and sometimes a division of property, Inge said.
In an alienation of affection and criminal conversation suit, damages can include compensatory and punitive.
Compensatory works to compensate for emotional health, pain and economic loss while punitive damages works to punish the defendant and deter others from a similar situation.
“A lot of people think these actions shouldn’t be,” he said.
A lot of states feel the alienation of affection law shouldn’t exist, either.
“Many states got rid of this common law or tort law at the end of the 19th century when states bypassed married women as property,” said Maxine Eichner, a law professor with the University of North Carolina School of Law.
She said other states got rid of these torts when the states moved to no-fault divorce because it was a conflict with people leaving their marriage when they wanted.
North Carolina hung onto this “heart balm” law, she said.
In ruling on a case in the 1980s, the N.C. Court of Appeals abolished alienation of affection and criminal conversation, but the N.C. Supreme Court overruled the Court of Appeals decision and reinstated the law.
In July, a Rowan jury awarded Brian McCoy of Statesville $2.3 million in an alienation of affection suit he filed against a former Iredell County deputy who he said broke up his marriage.
This award is believed to be the highest ever in Rowan County.
Michael J. Freeman of Mooresville was ordered to pay McCoy after McCoy’s 11-year marriage ended.
McCoy originally filed the suit in Iredell County in 2005, but was awarded a transfer to Rowan County last year.
According to the lawsuit, Angela Brewer McCoy and Freeman carried on an adulterous affair while both were working in the Iredell County Courthouse — she as a clerk, he as a deputy.
Angela McCoy left her husband one day shy of their 11th wedding anniversary, according to the lawsuit.
Brian McCoy’s attorney, Robert Inge, said his client isn’t likely to see that money — the case had more to do with making a point.
Contact reporter Shavonne Potts at 704-797-4253.

Alienation of Affection — facts at a glance:
• A common law cause of action or tort action, passed through case law. There is no original general statute, but there are amendments.
• Alienation of affection is still recognized in Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah.
• In North Carolina, an estimated 200 alienation of affection lawsuits are filed a year.
• In April 2009, the N.C. General Assembly took steps to abolish alienation of affection/criminal conversation with a bill. It was not enacted.
Three elements must be proven (alienation of affection):
• A genuine marital relationship and some degree of love existed between the spouses.
• The third party destroyed the love and affection.
• The third party’s intentions were malicious and the conduct destroyed the marriage and the love between the spouses.
• Criminal conversation: Sexual intercourse with another’s spouse during the marriage.
Two elements must be proven (criminal conversation):
• The person had sex with the spouse of another while that person was married.
• Sexual intercourse occurred before the couple had a physical separation.
• Called heart balm laws because the lawsuits are brought on by people looking for monetary damages to “salve” their broken hearts.