Peake v. Shirley

427 S.E.2d 885 (1993) 109 N.C. App. 591

Susan G. PEAKE, Plaintiff/Appellee,
v.
Beverly D. SHIRLEY, Defendant/Appellant.

No. 9224SC336.

Court of Appeals of North Carolina.

April 6, 1993.

Lloyd Hise, Jr., P.A. by Lloyd Hise, Jr., Spruce Pine, for plaintiff-appellee.

Robert E. Riddle, P.A. by Robert E. Riddle, Asheville, for defendant-appellant.

WELLS, Judge.

Although defendant presents four assignments of error for our review, the dispositive issue before us is whether the trial court erred in denying defendant's motions for directed verdict and judgment notwithstanding the verdict on plaintiff's alienation of affections claim. We find no error.

To withstand a motion for directed verdict on an alienation of affections claim, plaintiff must present evidence to show that: (1) there was genuine love and affection between plaintiff and her husband, and (2) because of the wrongful conduct of defendant, the love and affection was in fact destroyed. Shaw v. Stringer, 101 N.C.App. 513, 400 S.E.2d 101 (1991). Plaintiff must also show active and affirmative conduct on the part of defendant. One is not liable for merely becoming the object of the affections that are alienated from a spouse. There must be active participation, initiative or encouragement on the part of the defendant in causing one spouse's loss of the other spouse's affections for liability to arise. Darnell v. Rupplin, 91 N.C.App. 349, 371 S.E.2d 743 (1988). We find plaintiff presented sufficient evidence to overcome defendant's directed verdict motion and take the case to the jury.

Plaintiff indicated that prior to 1988, Dr. Peake had genuine love and affection for her. Plaintiff testified that she thought they had a perfect marriage. Although defendant presented evidence that plaintiff's marriage was troubled by alcohol, this evidence merely created an issue of material fact as to whether genuine love and affection existed between plaintiff and her husband. Whether Dr. Peake and plaintiff had an affectionate marriage was not a question for the court but for the jury.

It is uncontroverted that the love and affection, if it existed, was alienated. The question then becomes whether plaintiff presented sufficient evidence that the wrongful acts of defendant produced the alienation of affections. Gray v. Hoover, 94 N.C.App. 724, 381 S.E.2d 472 (1989). We find that she did.

Plaintiff presented evidence that defendant came to plaintiff's house to see Dr. Peake when she knew plaintiff would not be home. Defendant also made the hotel reservations at the Red Roof Inn, where she spent over four hours in a hotel room with him. When defendant was confronted, she admitted her wrong, and said, "I am so sorry I have done this to you." Viewing this evidence in the light most favorable to the plaintiff, a jury could reasonably conclude that defendant actively participated in alienating Dr. Peake's affections and that her conduct led plaintiff's spouse to terminate the marriage.

For the reasons stated above and in keeping with prior case law, we hold that the trial court did not err in denying defendant's motions for directed verdict and judgment notwithstanding the verdict.

No error.

ORR and MARTIN, JJ., concur.