NORTH CAROLINA: What does “alienation of affection” mean Ms. Elizabeth Edwards?

Elizabeth Edwards, former (almost) wife of former presidential candidate John Edwards has threatened to sue former campaign aid Andrew Young for “alienation of affection.” What that means is that she is blaming Andrew for the breakdown/implosion of her marriage to the former senator and former presidential candidate. The idea is that Elizabeth seems to think that by aiding and abetting John in (a) dating Rielle Hunter (b)  hiding Rielle Hunter once she became pregnant (c) falling in love with Rielle Hunter, that in effect Mr. Young has “alienated” her husband’s affection from her and has caused Elizabeth Edwards her marriage.
Alienation of affection is a genuine cause of action in many states, by the way. It is totally illegal in a state like New York and even the threat of suing for alienation of affection (for monetary damages) can land a person in prison for up to 5 years! See Civil Rights Law section 83 and Fearon v. Treanor, 272 NY 268, 5 NE2d 815 (1936). Alienation of affection, one of the “heart balm” statutes, was abolished in the 1930’s here in New York and held void for public policy:

“It is unlawful for any person, either as a party or as an attorney, to file or serve, or to threaten filing or service, of any process or pleading in a New York court seeking to recover money damages based upon any abolished cause of actionm, irrespective of whether the cause of action arose in or outside of New York.” Civil Rights Law section 80-c.

But the same is not true in every state. There are still a handful of states (Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah [per Wikipedia]) that allow alienation of affection causes of action. South Carolina is not one of them, but North Carolina is. Now, where are the Edwardses from again? Is it North or South Carolina? I always get mixed up. If it is South Carolina, Elizabeth is out of luck.   But if it is  North Carolina, then  Elizabeth may be able to bring an anti heart balm lawsuit for alienation of affection.
However, it is unclear whether  she can bring such a suit against Andrew Young since Young was not the one who slept with the senator. At first blush it would seem that Rielle Hunter is the one who slept with Elizabeth’s husband, John Edwards, and if anything, Elizabeth needs to bring the lawsuit against Rielle, not Andrew. Certainly, the proof is in the pudding of little baby Quinn. She wouldn’t have a huge proof problem. On the other hand, the case law might actually support a winnable claim against Andrew. It would be a novel interpretation of the statute, but it is a viable argument. A recent North Carolina case should scare Andrew just a little bit. In Cooper v. Shealy the appellate division upheld a dismissal of the defendant’s motion to dismiss an alienation of affection lawsuit. This is what the North Carolina appeals court in Cooper said, in part:

 Therefore, in order for plaintiff’s claim for alienation of affections to withstand defendant’s motion to dismiss, plaintiff must have alleged in her complaint that:(1) plaintiff and [her husband] were happily married and a genuine love and affection existed between them; (2) the love and affection [between them] was alienated and destroyed; and (3) the wrongful and malicious acts of defendant produced the alienation of affections.” Chappell v. Redding, 67 N.C. App. 397, 399, 313 S.E.2d 239, 241, review denied, 311 N.C. 399, 319 S.E.2d 268 (1984). Furthermore, for plaintiff’s criminal conversation action to survive, plaintiff must have alleged that there were sexual relations between defendant and plaintiff’s husband. Horner v. Byrnett, 132 N.C. App. 323, 511 S.E.2d 342 (1999).

If this is the test, then Elizabeth’s threats could be problematic for Andrew because nowhere in the “test” is there a restriction on who can be a defendant in an alienation case. It is a three pronged test and it simply requires Elizabeth to show that she was married to John at the time the “alienation” took place; there was love and affection between them; and that the malicious behavior of Andrew Young produced the alienation of her husband’s affection. Sure, Rielle slept with the husband, but Andrew arguably orchestrated the whole thing and threw Elizabeth’s marriage under the bus. As far as it looks, the two of them, Rielle and Andrew can be defendants in an alienation case pursuant to North Carolina law.
How so? Well, Andrew Young facilitated the affair and the cover up of the pregnancy by his own admission in his New York Times best-selling book and all his TV interviews. He is definitely complicit with John and Rielle in “alienating” John’s affections from Elizabeth. His hands are not clean. And with good lawyering, and a creative argument, Andrew could find himself in hot water. And all the money he made from the book? It could all go to Elizabeth. And that reported sex tape he’s bagging? I want to tell you, the proceeds of that could all belong to Elizabeth if she wins assuming she’s sick enough to sell the thing as a way to embarrass John and Rielle. Admittedly, she’d have to be pretty sick for this one.
So what is North Carolina precedent on this issue of alienation of affection as far as pecuniary payouts? Well, it seems that parties can be made to pay big bucks for alienation of affection and “criminal conversation” transgressions in the state of North Carolina.  Christine Cooper of won $2,000,000 verdict against her husband’s mistress for alienation of affection.
Oh, you may be wondering what is “criminal conversation”? Sounds kinda cute. I never heard that one before now myself. A North Carolina attorney Lee Rosen describes criminal conversation on his website. This is what his site says about criminal conversation:

Criminal conversation is the name for a civil lawsuit sounding in tort (a kind of injury to the person) based on sexual intercourse between the defendant and the plaintiff’s spouse. Criminal conversation is something like a “strict liability tort” because the only things the plaintiff has to prove are (1) an act of intercourse and (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. For all practical purposes, there are no obvious defenses to a timely claim for criminal conversation, provided the plaintiff can prove a valid marriage and intercourse between the defendant and plaintiff’s spouse. It is not a defense that: the defendant did not know the other person was married, that the person consented to the sex, that the plaintiff was separated from his or her spouse, that the other person actually seduced the defendant, that the marriage was an unhappy one, that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage, that plaintiff had mistreated the spouse, or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff “consented” to the illicit intercourse; but defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.

Well, obviously, Elizabeth can’t accuse Andrew of “criminal conversation” in this case. But she sure as heck can sue him for “alienation of affection.” He, as well as Rielle Hunter, should be very scared.
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