{ "id": 9251096, "name": "DONALD RAY NUNN, Plaintiff v. CLAY ALLEN, Defendant", "name_abbreviation": "Nunn v. Allen", "decision_date": "2002-12-17", "docket_number": "No. COA01-1570", "first_page": "523", "last_page": "542", "citations": [ { "type": "official", "cite": "154 N.C. App. 523" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "315 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2404290, 2394312, 2394409, 2400307, 2401243 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0625-04", "/nc/310/0625-02", "/nc/310/0625-01", "/nc/310/0625-03", "/nc/310/0625-05" ] }, { "cite": "307 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "813" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527020 ], "year": 1983, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0439-01" ] }, { "cite": "498 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "348 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659911 ], "year": 1998, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0260-01" ] }, { "cite": "125 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "315" } ], "opinion_index": 0 }, { "cite": "257 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565413 ], "year": 1962, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0052-01" ] }, { "cite": "524 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240704 ], "year": 2000, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0493-01" ] }, { "cite": "400 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "103", "parenthetical": "defendant's laughter about situation held to be evidence of malice" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527928 ], "year": 1991, "pin_cites": [ { "page": "517", "parenthetical": "defendant's laughter about situation held to be evidence of malice" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0513-01" ] }, { "cite": "547 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135589, 135576, 135762, 135672, 135965 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0398-01", "/nc/353/0398-04", "/nc/353/0398-02", "/nc/353/0398-05", "/nc/353/0398-03" ] }, { "cite": "539 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "34", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439464 ], "year": 2000, "pin_cites": [ { "page": "49-50", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0044-01" ] }, { "cite": "25 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "parenthetical": "\"connivance\" of spouse in adultery of other spouse will bar action for criminal conversation" } ], "opinion_index": 0 }, { "cite": "223 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601553 ], "year": 1943, "pin_cites": [ { "parenthetical": "\"connivance\" of spouse in adultery of other spouse will bar action for criminal conversation" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0151-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "550 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "145 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438508 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/145/0453-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 52-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2002, "opinion_index": 0 }, { "cite": "198 S.E. 619", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "parenthetical": "fact that intercourse occurs during separation of plaintiff and spouse does not bar action for criminal conversation" } ], "opinion_index": 0 }, { "cite": "214 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629431 ], "year": 1938, "pin_cites": [ { "parenthetical": "fact that intercourse occurs during separation of plaintiff and spouse does not bar action for criminal conversation" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0191-01" ] }, { "cite": "557 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364769 ], "year": 2001, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0199-01" ] }, { "cite": "511 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "346", "parenthetical": "appellate court will not reverse ruling on motion for new trial without showing of an abuse of discretion \" 'resulting in a substantial miscarriage of justice' \"" }, { "page": "344" }, { "page": "346" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237709 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "328", "parenthetical": "appellate court will not reverse ruling on motion for new trial without showing of an abuse of discretion \" 'resulting in a substantial miscarriage of justice' \"" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0323-01" ] }, { "cite": "170 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "115" }, { "page": "115-16" }, { "page": "111" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 201", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547525 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "219" }, { "page": "220" }, { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0201-01" ] }, { "cite": "265 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551741 ], "year": 1980, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0521-01" ] }, { "cite": "477 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "237" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889511 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0377-01" ] }, { "cite": "554 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "854", "parenthetical": "footnote omitted" }, { "page": "854" }, { "page": "854" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379118 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "271", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0268-01" ] }, { "cite": "550 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "264", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438193 ], "year": 2001, "pin_cites": [ { "page": "422", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0418-01" ] }, { "cite": "354 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741304 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0397-01" ] }, { "cite": "346 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "82 N.C. App. 385", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358981 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/82/0385-01" ] }, { "cite": "365 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "697", "parenthetical": "appellant must show that erroneous admission of evidence \"probably influenced the jury verdict\"" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 223", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521217 ], "year": 1988, "pin_cites": [ { "page": "226", "parenthetical": "appellant must show that erroneous admission of evidence \"probably influenced the jury verdict\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0223-01" ] }, { "cite": "367 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516596 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0309-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "any error in exclusion of evidence harmless where evidence of same import admitted through the testimony of other witnesses" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "year": 1995, "pin_cites": [ { "parenthetical": "any error in exclusion of evidence harmless where evidence of same import admitted through the testimony of other witnesses" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] }, { "cite": "541 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155972, 1155750, 1155657, 1155611, 1155774 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0104-04", "/nc/351/0104-01", "/nc/351/0104-05", "/nc/351/0104-02", "/nc/351/0104-03" ] }, { "cite": "514 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "560", "parenthetical": "knowledge that relationship would harm plaintiff's children listed as factor showing malice" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219728 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0364-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "56 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "231 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628948 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/231/0173-01" ] } ], "analysis": { "cardinality": 1296, "char_count": 48191, "ocr_confidence": 0.753, "pagerank": { "raw": 3.361427912431713e-07, "percentile": 0.875309139644821 }, "sha256": "7159fd62d7c13467992126fe5afde4fc2381043788a7f3acbd02b779f56ba36a", "simhash": "1:bf6fcc2bf69e2572", "word_count": 7597 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge THOMAS concur." ], "parties": [ "DONALD RAY NUNN, Plaintiff v. CLAY ALLEN, Defendant" ], "opinions": [ { "text": "MARTIN, Judge.\nPlaintiff brought this action seeking compensatory and punitive damages from defendant, alleging that defendant had alienated the affection of plaintiffs wife and had engaged in criminal conversation with her. Defendant denied the allegations.\nBriefly summarized, the evidence at trial tended to show that plaintiff Donald Nunn married Vickie O\u2019Brien Nunn, now Vickie Woods (hereinafter \u201cMrs. Nunn\u201d), on 1 July 1978; three sons were born to the marriage. Mrs. Nunn moved out of the couple\u2019s home in April 1997. Plaintiff and Mrs. Nunn signed a separation agreement on 8 September 1997, and were divorced on 17 August 1998.\nEvidence regarding the state of the marriage prior to the couple\u2019s separation, as well as the cause and date of onset of the deterioration of the marriage, is conflicting. Mrs. Nunn had been employed for several years at Allen Brothers Timber Company (\u201cAllen Brothers\u201d) as secretary of the corporation. Defendant is also employed by Allen Brothers; his father is president of the company and defendant is a vice-president. Plaintiff introduced evidence tending to show that defendant spent time with Mrs. Nunn at work, after work, and on the weekends before and during the couple\u2019s separation, and that the corporation helped Mrs. Nunn buy a new car and provided a residence for her grandmother, into which Mrs. Nunn moved after her separation from plaintiff. Plaintiff testified that in September 1997, he went, with his father and Herman Searcey, to defendant\u2019s residence and, looking into a window, observed Mrs. Nunn and defendant kissing; as he continued to watch, it appeared to him that Mrs. Nunn placed her head between the defendant\u2019s legs as though she was performing oral sex upon him. Mr. Searcey testified that he saw Mrs. Nunn performing oral sex upon defendant. The next day, plaintiffs attorney prepared a separation agreement which plaintiff and Mrs. Nunn signed on 8 September 1997.\nThrough the testimony of Mrs. Nunn and other witnesses, there was evidence that plaintiff had accused or suspected Mrs. Nunn of having affairs with other men during their marriage. Mrs. Nunn testified that \u201crumors\u201d circulated that her youngest son, who was born in 1991, was, in fact, fathered by defendant\u2019s father Bruce Allen or his cousin Steve Allen, Jr. Plaintiff testified that when he confronted Steve Allen, Jr., about these rumors, Steve said, \u201cClay is your man.\u201d\nMrs. Nunn and defendant both testified that they had sexual intercourse for the first time in or about October 1997; Mrs. Nunn testified that it occurred after she and plaintiff had signed the separation agreement. In addition, plaintiff offered evidence that defendant, by his failure to respond to plaintiff\u2019s Request for Admissions dated 5 May 1999, had admitted to a sexual relationship with Mrs. Nunn \u201cduring the year of 1997\u201d and that such relationship continued to the date of the Request for Admissions.\nThere was evidence that plaintiff had engaged in an extra-marital relationship with a co-worker in or about 1996. Although there was no evidence that the relationship was sexual, the two often had lunch together, and were seen by witnesses in physically close situations in plaintiff\u2019s truck and office. In the fall of 1996, Mrs. Nunn found greeting cards the co-worker had given to plaintiff. Mrs. Nunn and other witnesses testified that the cards appeared to be of a romantic nature and that Mrs. Nunn was upset by their discovery. Mrs. Nunn testified that she stopped sleeping in the same bed with her husband because he would not bathe after coming home from his job working on cars and before getting into bed, and that she was generally disgusted with him and other things going on in her life. She testified that defendant had nothing to do with her separation from plaintiff.\nThe jury answered the issues of alienation of affection and criminal conversation in favor of plaintiff and awarded compensatory damages of $50,000 and punitive damages of $50,000. Defendant\u2019s post-verdict motions were denied and the trial court entered judgment on the verdict. Defendant appeals.\nIn his brief to this Court, defendant argues, in support of his twenty-eight assignments of error, (I) the common law claims for alienation of affection and criminal conversation should be judicially abolished; (II) the trial court erred in various of its evidentiary rulings; (III) the trial court erred in denying his motions for directed verdict, for judgment notwithstanding the verdict, for a new trial, and in entering judgment on the verdict, because the evidence was insufficient to support a judgment in plaintiffs favor on any theory; and (IV) the trial court erred in its instructions to the jury. After careful review of defendant\u2019s arguments, we decline to disturb the verdict or the judgment.\nI.\nDefendant asserts that the torts of alienation of affection and criminal conversation are \u201carchaic, antiquated, and offensive to the concept of feminine equality,\u201d and asks that we abolish the torts in North Carolina. Neither tort is a statutory creation; both emanate from the common law and have been recognized by our Supreme Court. See, e.g., Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432 (1949). This Court has no authority to overrule decisions of the North Carolina Supreme Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985); Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554, disc. review denied, 351 N.C. 104, 541 S.E.2d 146 (1999).\nII.\nBy six assignments of error, defendant contends the trial court erred in various rulings admitting or excluding evidence. First, defendant contends the trial court erred by excluding his testimony concerning statements made to him by Mrs. Nunn concerning her relationship with plaintiff. Defendant argues the evidence was relevant to show his state of mind and beliefs and, therefore, was relevant to the issue of the existence or absence of malice on his part, an element necessary to prove alienation of affection and also necessary for an award of punitive damages. However, some of the excluded evidence was later admitted through the testimony of Mrs. Nunn, rendering harmless its exclusion during defendant\u2019s testimony. See State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995) (any error in exclusion of evidence harmless where evidence of same import admitted through the testimony of other witnesses). Defendant made no offer of proof as to the other testimony he contends was erroneously excluded by the trial court. N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (error may not be predicated upon a ruling excluding evidence unless substance of evidence was apparent or made known to trial court by offer).\nDefendant also assigns error to the trial court\u2019s rulings permitting plaintiff to cross-examine him concerning property owned by his father and to cross-examine Mrs. Nunn concerning the pendency of charges against her for embezzlement from Allen Brothers Timber Company. On appeal, defendant argues, without citing any authority, the evidence was not relevant. At trial, however, he interposed only general objections and, as such, did not clearly present the alleged error to the trial court as required by G.S. \u00a7 8C-1, Rule 103(a)(1). The rulings, therefore, have not been preserved for appeal. See State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988). In any event, defendant has neither argued nor demonstrated that he was prejudiced by the challenged cross-examinations. See Dept. of Transportation v. Craine, 89 N.C. App. 223, 226, 365 S.E.2d 694, 697 (1988) (appellant must show that erroneous admission of evidence \u201cprobably influenced the jury verdict\u201d); McNabb v. Town of Bryson City, 82 N.C. App. 385, 346 S.E.2d 285, review dismissed, 319 N.C. 397, 354 S.E.2d 239 (1987).\nDefendant also assigns error to the trial court\u2019s rulings permitting plaintiff to elicit testimony from Vickie Daniel, an employee in the child support section of the Richmond County Clerk of Superior Court, concerning the amount of child support which would have been required in 1997 of a person earning the same income as Mrs. Nunn earned in 1996. His objections at trial were based upon relevance and lack of foundation; on appeal he argues only that there was an inadequate foundation for her testimony, citing G.S. \u00a7 8C-1, Rule 702 as the sole support for his argument. However, Ms. Daniel was neither offered nor accepted as an expert witness and the cited rule has no application here. Moreover, Ms. Daniel testified that she had calculated the child support obligation by applying the applicable child support guidelines to the income as shown by Mrs. Nunn\u2019s 1996 W-2 form and determining the presumptive amount of child support. She acknowledged that the presumptive amount would be affected by certain variables, about which she was extensively cross-examined by defendant\u2019s counsel. Defendant has shown no prejudice and this assignment of error is also overruled.\nDefendant next assigns error to the admission of plaintiff\u2019s testimony, during re-direct examination, that his wife had told him she \u201chad seen a suitcase of drugs\u201d at defendant\u2019s residence. The trial court overruled defendant\u2019s objection to the testimony, ruling that defendant had \u201copened the door\u201d for such testimony during his counsel\u2019s cross-examination of plaintiff. Our review does not reveal any cross-examination by defendant\u2019s counsel which would have \u201copened the door\u201d for the challenged testimony and we find no basis for its admission. However, in light of the other evidence, we do not believe this single statement would have been likely to affect the jury\u2019s verdict or award. See Dept. of Transportation v. Craine, supra. This assignment of error is overruled.\nDefendant cites no authority and advances no legal argument in support of his remaining evidentiary assignment of error. It merits no discussion and is overruled.\nIII.\nIn his primary argument, defendant assigns error to the denial of his motions for directed verdict, judgment notwithstanding the verdict, and for a new trial, because he contends the evidence was insufficient as a matter of law to sustain a verdict in plaintiff\u2019s favor (1) for alienation of affection, (2) for criminal conversation, and (3) for punitive damages.\nA motion for directed verdict is appropriately granted only when by looking at the evidence in the light most favorable to the nonmovant, and giving the nonmovant the benefit of every reasonable inference arising from the evidence, the evidence is insufficient for submission to the jury. ... A motion for judgment notwithstanding the verdict represents a renewal, after a verdict is issued, of a motion for directed verdict, and the standards of review for both motions are the same. ... A trial court\u2019s decision to grant or deny a motion for directed verdict or a motion notwithstanding the verdict will not be disturbed on appeal absent an abuse of discretion.\nCrist v. Crist, 145 N.C. App. 418, 422, 550 S.E.2d 260, 264 (2001) (citations omitted).\nAlienation of Affection\nDefendant contends plaintiff failed to produce sufficient evidence as to the existence of each element of the tort of alienation of affection to warrant submission of the issue to the jury. A claim for alienation of affection requires that plaintiff present evidence:\n\u201c(1) there was a marriage with love and affection existing between the husband and wife; (2) that love and affection was alienated; and (3) the malicious acts of the defendant produced the loss of that love and affection.\u201d\nPharr v. Beck, 147 N.C. App. 268, 271, 554 S.E.2d 851, 854 (2001) (footnote omitted). With respect to the first element, the plaintiff need not prove that he and his spouse had a marriage free from discord, only that some affection existed between them. Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234 (1996). In terms of proving that alienation of affection occurred, plaintiff need only show that his spouse\u2019s affection for him was \u201cdiminished or destroyed.\u201d Pharr, 147 N.C. App. at 271 n.1, 554 S.E.2d at 854 n.1. The third element requires a showing of both \u201cmalice and proximate cause.\u201d Id. at 271, 554 S.E.2d at 854. Malice is shown by evidence that defendant knew of the marriage and acted intentionally in a way likely to affect the marriage. Id. at 272, 554 S.E.2d at 854. Proximate cause does not require that defendant\u2019s acts be the sole cause of the alienation, as long as they were the \u201ccontrolling or effective cause.\u201d Heist v. Heist, 46 N.C. App. 521, 523, 265 S.E.2d 434, 436 (1980).\nPlaintiff offered substantial evidence from which a jury could find the existence of the first element. There was evidence that plaintiff and his wife had a \u201cloving marriage\u201d until 1996. Plaintiff testified that between 1993 and 1995, Mrs. Nunn\u2019s attention to housework and preparing family meals, as well as her interest in sexual relations with him, began to decline. She stopped attending church with plaintiff and their sons and did not want to take family trips in 1995 and 1996. In November 1996, Mrs. Nunn began sleeping separately from plaintiff and their sexual relationship ended except for one isolated incident of sexual intercourse before April 1997. In April 1997, she moved out of the marital home.\nWith respect, however, to the element that defendant maliciously engaged in conduct which proximately resulted in the alienation of Mrs. Nunn\u2019s affection from plaintiff, defendant argues, citing Pharr, supra, that a claim for alienation of affection can only be based on pre-separation conduct by defendant, and the evidence shows that any wrongful conduct by defendant only occurred after Mrs. Nunn separated from plaintiff. We disagree. There was evidence tending to show that defendant and Mrs. Nunn worked together for a number of years prior to her separation from plaintiff and that she would occasionally go to defendant\u2019s brother\u2019s ranch on weekends to ride horses and defendant would be there. The evidence also showed that Allen Brothers Timber Company purchased a house for Mrs. Nunn\u2019s grandmother to rent and live in, and that Mrs. Nunn moved into that residence when she separated from plaintiff.\nThere was also evidence tending to show that after Mrs. Nunn separated from plaintiff, she would go to defendant\u2019s residence for drinks with defendant\u2019s brother and sister-in-law. Plaintiff testified that between April and September 1997, he observed Mrs. Nunn\u2019s car driving down the road to defendant\u2019s home in the late afternoon about half a dozen times. In September 1997, plaintiff and Mr. Searcey saw defendant and Mrs. Nunn hugging and kissing, and Mr. Searcey saw her performing oral sex on defendant. Under Pharr, supra, post-separation conduct is admissible and relevant to corroborate evidence of pre-separation conduct, and the evidence of post-separation conduct here provides strong circumstantial evidence explaining and corroborating defendant\u2019s pre-separation conduct. In addition, defendant admitted to having sexual intercourse with Mrs. Nunn in October 1997 and continuing a sexual relationship with her thereafter. We hold that a jury could find from all the evidence, without having to engage in speculation, that defendant\u2019s conduct was the effective cause of the alienation of Mrs. Nunn\u2019s affection from plaintiff, and the trial court did not err in denying defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict.\nDefendant also assigns error to the denial of his G.S. \u00a7 1A-1, Rule 59 motion to set aside the compensatory damage verdict for alienation of affection and grant a new trial. He argues on appeal that there was no evidence to support the award of compensatory damages for alienation of affection and thus the trial court erred in its denial of the motion.\nIn a cause of action for alienation of affections . . ., the measure of damages is the present value in money of the support, consortium, and other legally protected marital interests lost by [plaintiff] through the defendant\u2019s wrong. In addition thereto, [plaintiff] may also recover for the wrong and injury done to [plaintiff\u2019s] health, feelings, or reputation.\nSebastian v. Kluttz, 6 N.C. App. 201, 219, 170 S.E.2d 104, 115 (1969). Defendant\u2019s argument again centers on the alleged timing of plaintiff\u2019s losses; he argues that plaintiff had already lost his sexual relationship with Mrs. Nunn, her companionship, household and family care, and financial support when defendant\u2019s relationship with Mrs. Nunn began. This argument, however, is premised on defendant\u2019s contention that there was insufficient evidence of pre-separation misconduct on his part, a contention which we have rejected for the reasons stated above. The trial court did not abuse its discretion by refusing to set aside the compensatory damages award and grant defendant a new trial on this issue. See Horner v. Byrnett, 132 N.C. App. 323, 328, 511 S.E.2d 342, 346 (1999) (appellate court will not reverse ruling on motion for new trial without showing of an abuse of discretion \u201c \u2018resulting in a substantial miscarriage of justice\u2019 \u201d).\nCriminal Conversation\nDefendant also contends plaintiff failed to produce sufficient evidence to warrant submission of the issue of criminal conversation to the jury. The elements of the tort of criminal conversation \u201care the actual marriage between the spouses and sexual intercourse between defendant and the plaintiff\u2019s spouse during the coverture.\u201d Brown v. Hurley, 124 N.C. App. at 380, 477 S.E.2d at 237. The cause of action is based upon \u201cthe fundamental right to exclusive sexual intercourse between spouses.\u201d Johnson v. Pearce, 148 N.C. App. 199, 200, 557 S.E.2d 189, 190 (2001). Plaintiff presented substantial evidence, and defendant admitted, that he had sexual intercourse with Mrs. Nunn while she was married to plaintiff. Defendant argues, however, that the existence of the separation agreement between plaintiff and Mrs. Nunn provides him with at least two defenses.\nFirst, defendant asserts there is no evidence that he had sexual intercourse with Mrs. Nunn until after she and plaintiff had executed the separation agreement in which he waived his \u201cright to exclusive sexual intercourse\u201d with his spouse. The separation agreement contained the following provision:\nLIVING SEPARATE: Husband and Wife shall continue to live separate and apart, each at such place of residence as he or she may freely choose, free from all interference, authority and control, direct or indirect, by the other party, as fully as if each party were unmarried. Neither shall molest the other nor harass the other, nor compel nor endeavor to compel the other to cohabit or dwell with him or her.\nIn Johnson v. Pierce, supra, this Court held that a claim for criminal conversation may be based solely upon post-separation sexual relations. See also Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938) (fact that intercourse occurs during separation of plaintiff and spouse does not bar action for criminal conversation). Defendant attempts to distinguish Johnson, however, because no separation agreement existed in that case. We decline to establish such an exception.\nG.S. \u00a7 52-10.1 authorizes \u201cany married couple ... to execute a separation agreement not inconsistent with public policy . . . See also N.C. Gen. Stat. \u00a7 52-10 (2002). Separation agreements are generally construed like any contract between two parties. See Anderson v. Anderson, 145 N.C. App. 453, 550 S.E.2d 266 (2001). Defendant was not a party to the separation agreement. Assuming, arguendo, that the provision at issue was intended by the parties to the agreement, plaintiff and Mrs. Nunn, to address their \u201cright to exclusive sexual intercourse\u201d with the other, the provision related only to the spouses\u2019 rights against each other, for example, a spouse\u2019s sexual relations with a third party can affect the legal rights of the spouses with respect to alimony. N.C. Gen. Stat. \u00a7 50-16.3A (2002). As a matter of law, the provision did not waive the parties\u2019 rights, with respect to third parties for purposes of a criminal conversation claim, to exclusive sexual intercourse with each other during coverture. Criminal conversation is sexual intercourse with a plaintiff\u2019s spouse during coverture. Johnson, supra. Notwithstanding their agreement of separation, plaintiff and his wife were still married at the time of defendant\u2019s admitted sexual relations with Mrs. Nunn in October 1997. Therefore, we hold the existence of the separation agreement between plaintiff and Mrs. Nunn does not shield defendant from liability for criminal conversation based on his post-separation sexual relationship with Mrs. Nunn.\nDefendant also argues the agreement was the equivalent of plaintiff\u2019s consent for Mrs. Nunn to have sexual relations with another man, which is a viable defense to the claim of criminal conversation. See Gannon v. Miller, 71 N.C. App. at 465-66, 322 S.E.2d at 785-86, (plaintiff\u2019s consent is the only substantive defense to a claim for criminal conversation); Barker v. Dowdy, 223 N.C. 151, 25 S.E.2d 404 (1943) (\u201cconnivance\u201d of spouse in adultery of other spouse will bar action for criminal conversation). We are aware of no authority in North Carolina to support the defendant\u2019s position and he has not provided any. Professor Reynolds suggests, in her treatise on family law, that to establish a plaintiff\u2019s consent as a defense to an action for criminal conversation, a defendant would be required to show that before the sexual intercourse between the defendant and the plaintiff\u2019s spouse occurred, the plaintiff \u201ceither encouraged the conduct or at least approved it.\u201d Reynolds, Lee\u2019s North Carolina Family Law, \u00a7 5.46(B), at 405 (5th ed., 1993). There is no evidence of such approval on plaintiffs part here. Thus, we hold that the cited provision of the separation agreement does not, without evidence of plaintiffs prior knowledge and approval of defendant\u2019s sexual intercourse with Mrs. Nunn while she was married to plaintiff, establish his consent to such intercourse.\nDefendant also argues that the trial court erred in refusing to set aside the compensatory damage award for criminal conversation and grant a new trial as to that issue because there was no evidence in the record upon which the jury could have based an award of compensatory damages for criminal conversation. In particular, he asserts that any loss sustained by the plaintiff arose from the ending of the couple\u2019s sexual relationship which occurred prior to defendant\u2019s sexual involvement with Mrs. Nunn.\nIn Sebastian v. Kluttz, 6 N.C. App. at 220, 170 S.E.2d at 115-16, this Court held that:\nIn a cause of action for criminal conversation the measure of damages is incapable of precise measurement; however, it has been held, and we think properly so, that the jury in awarding damages may consider the loss of consortium, mental anguish, humiliation, injury to health, and loss of support by the wife.\nPlaintiff presented substantial evidence from which a jury could have determined that he experienced mental anguish and humiliation due to the affair between his wife and defendant. In particular, we point to the testimony by plaintiffs father as to his depressed mental state and plaintiff\u2019s own testimony that he began consulting with his pastor to help deal with his emotional turmoil. There was also evidence that even up to a week before trial, plaintiff continually tried to contact his former wife by leaving notes on her car asking for a chance to speak with her again. The trial court did not abuse its discretion in failing to set aside the jury award or to grant a new trial.\nPunitive Damages\nDefendant also contends there was insufficient evidence to warrant submission of the issue of punitive damages to the jury or to support the jury\u2019s award of punitive damages on either claim. We disagree.\nWith respect to claims for alienation of affection:\nIn order for the question of punitive damages to be submitted to the jury, . . . there must be evidence of circumstances of aggravation beyond the proof of malice necessary to satisfy the elements of the tort to sustain a recovery of compensatory damages. Specific circumstances of aggravation include \u201cwillful, wanton, aggravated or malicious conduct.\u201d\nWard v. Beaton, 141 N.C. App. 44, 49-50, 539 S.E.2d 30, 34 (2000) (citations omitted), cert. denied, 353 N.C. 398, 547 S.E.2d 431 (2001). Evidence of \u201csexual relations\u201d between defendant and plaintiffs spouse has been held to satisfy this requirement. Id. Defendant admitted to sexual relations with Mrs. Nunn during her marriage to plaintiff.\nIn addition, directly after plaintiff saw his wife and defendant together through defendant\u2019s kitchen window, plaintiff and his father went to the home of Bruce Allen and spoke with him and his wife about the relationship between Mrs. Nunn and defendant. During that conversation, defendant\u2019s mother called defendant and he came over to their house. Both plaintiff and his father testified that defendant laughed at them during the meeting. There was also evidence which indicates that at some point in 1997, plaintiff and his son, Brandon, saw defendant and Mrs. Nunn at a restaurant and that Brandon told defendant to stay away from his mother, thus informing defendant that his actions were affecting the children. Both of these circumstances have been held to represent evidence of aggravation. See Shaw v. Stringer, 101 N.C. App. 513, 517, 400 S.E.2d 101, 103 (1991) (defendant\u2019s laughter about situation held to be evidence of malice); Hutelmyer v. Cox, 133 N.C. App. at 371, 514 S.E.2d at 560 (knowledge that relationship would harm plaintiff\u2019s children listed as factor showing malice). There was substantial evidence on which the jury could base an award of punitive damages for alienation of affection.\nProof of willful, wanton, or aggravated conduct is also required for an award of punitive damages for criminal conversation. Horner, 132 N.C. App. at 325, 511 S.E.2d at 344. However, \u201cthe same sexual misconduct necessary to establish the tort of criminal conversation may also sustain an award of punitive damages.\u201d Id. at 327, 511 S.E.2d at 346. Where there is sufficient evidence to put the claim of criminal conversation before the jury, the jury may also consider the issue of punitive damages. See id. As we have decided above, there was sufficient evidence of defendant\u2019s sexual intercourse with Mrs. Nunn during her marriage to plaintiff to support a verdict for plaintiff on the issue of criminal conversation; such evidence was also sufficient to support an award of punitive damages for criminal conversation. The trial court did not abuse its discretion in denying defendant\u2019s motion for a new trial on the punitive damages issue.\nIV.\nBy his fourth argument, defendant argues the trial court erred in its instructions on (1) alienation of affection; (2) criminal conversation; and (3) punitive damages. We reject his arguments. Defendant first contends the trial court erred in instructing the jury on alienation of affection because the court refused to give defendant\u2019s requested instruction that to be liable, he must have had an active role in alienating Mrs. Nunn\u2019s affection, and that any claim must be based on preseparation conduct.\nWe first reject defendant\u2019s contention that the trial court erred in refusing to instruct the jury that one cannot be liable for alienation of affection where the defendant becomes the object of the affection of the plaintiff\u2019s spouse which has been alienated from the plaintiff absent defendant\u2019s active participation, initiation, or encouragement in causing the loss of affection. Included in the trial court\u2019s instructions was an instruction that in order to be liable, a defendant must have \u201cengaged in malicious and wrongful conduct with respect to th[e] marital relationship,\u201d malicious conduct being defined as that which is \u201cintended to or is recklessly indifferent to the likelihood that it will destroy or diminish the genuine marital relationship,\u201d and that the defendant\u2019s conduct must have been the controlling or effective cause of the alienation of affection. This instruction sufficiently establishes that which defendant intended to convey through his requested instruction, that in order to be found liable, there must exist some wrongful action on the part of the defendant leading to the alienation. The jury instruction given by the trial court here is in accordance with the North Carolina Pattern Jury Instructions and the statements of law contained in Hutelmyer, supra, cited by defendant in support of his argument. We will not find error in the trial court\u2019s instruction simply because it was not given in the exact language and form proffered by defendant.\nDefendant next asserts the trial court erred in failing to instruct the jury that a finding in favor of plaintiff on this claim could only be based on pre-separation conduct. However, in his proposed instructions, defendant did not propose that such a charge be included, but only that the court instruct that \u201c[i]n determining whether a genuine marital relationship existed, you may consider whether a valid separation agreement existed before the malicious and wrongful conduct occurred.\u201d In support thereof, defendant cited Sebastian, standing for the proposition that a valid separation agreement does not necessarily bar an action for alienation of affection occurring prior to the separation. See Sebastian, 6 N.C. App. at 214, 170 S.E.2d at 111. There is no indication defendant ever specifically requested that the trial court instruct the jury it was only to consider pre-separation conduct, or that defendant presented the trial court with any authority in support of such a position. Accordingly, we decline to review this argument for the first time on appeal. See, e.g., Tomika Investments, Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 499, 524 S.E.2d 591, 595 (2000).\nIn any event, defendant argues the prejudice in the court\u2019s failure to so instruct the jury lies in the lack of evidence of any wrongful pre-separation conduct, necessarily leading to the conclusion that the jury could only have based its finding on post-separation evidence. As we have already determined, however, there was sufficient evidence of defendant\u2019s pre-separation conduct to support the jury\u2019s finding.\nDefendant also argues he is entitled to a new trial because, although the jury was initially instructed in accordance with his request, the trial court subsequently withdrew the instructions and re-instructed the jury, omitting defendant\u2019s requested instructions. Defendant contends the trial court\u2019s action emphasized to the jury that it could find in favor of plaintiff despite Mrs. Nunn\u2019s affection having been alienated from plaintiff prior to her beginning a relationship with defendant.\nWe disagree that the trial court\u2019s correction of its prior instruction constitutes error. Our Supreme Court has recognized that \u201c[w]here a judge has erroneously instructed the jury, he undoubtedly has the right, in fact, it is his duty, when the error is called to his attention, to correct it by accurately informing the jury what the law is.\u201d Griffin v. Pancoast, 257 N.C. 52, 58, 125 S.E.2d 310, 315 (1962). So long as the subsequent instruction sets forth the law in such a manner that the jury cannot be under any misapprehension as to the state of the law, any previous error does not warrant a new trial. Id.\nIn this case, the trial court\u2019s subsequent instruction correctly and adequately set forth the law to be applied by the jury, and we discern no basis for concluding the jury was confused as to the law it was to apply. Further, the fact the jury had previously been given a different instruction is not grounds for asserting prejudice where the trial court in this case specifically instructed the jury that it was to \u201cdisregard\u201d the prior instruction. A jury is presumed to follow the court\u2019s instructions. See Poole v. Copland, Inc., 348 N.C. 260, 264, 498 S.E.2d 602, 604 (1998); Goble v. Helms, 64 N.C. App. 439, 446, 307 S.E.2d 807, 813 (1983), disc. review denied, 310 N.C. 625, 315 S.E.2d 690 (1984). Thus, we must presume the jury simply disregarded the prior instruction and based its verdict solely on the subsequent instruction, which we have held to be a proper statement of the law.\nNext, defendant asserts the trial court erred in instructing the jury as to compensatory damages for alienation of affection inasmuch as the court informed the jury that in assessing plaintiffs damages, if any, it could consider the degree to which plaintiff and Mrs. Nunn\u2019s relationship was destroyed, in addition to plaintiff\u2019s mental anguish, shame, humiliation, loss of reputation and support, and \u201c[a]ny other adverse effect on the quality of the marital relationship.\u201d Defendant contends the instruction was not supported by the evidence because, he contends, Mrs. Nunn was not providing plaintiff any support, company, or affection at the time she and defendant engaged in a romantic relationship, and that, due to previous rumors about Mrs. Nunn\u2019s extra-marital affairs, defendant\u2019s conduct could not have harmed plaintiff\u2019s reputation. We have previously rejected defendant\u2019s contentions as to the sufficiency of the evidence, and defendant has failed to cite any authority to support his argument that the trial court\u2019s instruction was otherwise erroneous. These assignments of error are overruled.\nDefendant also assigns error to the trial court\u2019s instructions to the jury regarding the criminal conversation claim. Based on his theory that the separation agreement was either a waiver or consent for sexual intercourse between his wife and another person, defendant argues that the trial court erred in instructing the jury that it should not consider whether plaintiff and his wife had separated before the sexual intercourse occurred. As discussed above, we reject defendant\u2019s assertions that the agreement constituted waiver and/or consent. Next, defendant argues that the trial court erred in instructing the jury on factors for determining an amount of compensatory damages to award on this claim. Similar to the argument defendant made with respect to the instruction for compensatory damages for alienation of affection, this argument fails for several reasons: (1) there was evidence in the record from which the jury could find that plaintiff suffered loss of consortium, mental anguish, or humiliation as a result of defendant\u2019s sexual relationship with his wife, (2) the instruction allowed the jury to award only nominal damages, if the factors were not present, and (3) defendant cites no law supporting his attack on the instruction. Therefore, we hold there was no error in the trial court\u2019s instructions on the claim of criminal conversation.\nLastly, defendant argues that the trial court erred in its instructions to the jury on the issue of punitive damages. With respect to defendant\u2019s arguments on the sufficiency of the evidence, we have already determined that the instruction was supported by the evidence. Defendant also alleges that the trial court did not provide the jury with any standards for the assessment of punitive damages, and that this omission violated his rights to due process and equal protection under the United States Constitution and similar rights under the North Carolina Constitution. First, the trial court did instruct the jury that punitive damages were within its discretion to award and that the amount should bear a \u201creasonable relationship to the sum reasonably needed to punish the defendant. . . and deter . . . others . . . .\u201d Defendant cites no authority for these alleged violations of his constitutional rights or for why the standard articulated by the judge was not constitutionally adequate. N.C.R. App. P. 28(b)(6). Second, there is no indication in the record, and defendant points to none, that defendant objected to the instructions on punitive damages or submitted a proposed instruction on the issue. N.C.R. App. P. 10(b)(1). This assignment of error is overruled.\nNo error.\nChief Judge EAGLES and Judge THOMAS concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Henry T. Drake for plaintiff-appellee.", "Katherine E. Jean for defendant-appellant." ], "corrections": "", "head_matter": "DONALD RAY NUNN, Plaintiff v. CLAY ALLEN, Defendant\nNo. COA01-1570\n(Filed 17 December 2002)\n1. Alienation of Affections; Criminal Conversation\u2014 common law tort \u2014 recognized by North Carolina Supreme Court\nThe Court of Appeals has no authority to abolish the torts of alienation of affection and criminal conversation even though defendant contends the torts are archaic, antiquated, and offensive to the concept of feminine equality, because: (1) neither tort is a statutory creation, and both emanate from the common law and have been recognized by our Supreme Court; and (2) the Court of Appeals has no authority to overrule decisions of our Supreme Court.\n2. Evidence\u2014 exclusion of statements made to defendant by plaintiff\u2019s wife \u2014 harmless error\nThe trial court did not err in an alienation of affections and criminal conversation case by excluding testimony concerning statements made to defendant by plaintiffs wife concerning her relationship with plaintiff, because some of the excluded evidence was later admitted through the testimony of plaintiffs wife, rendering harmless its exclusion during defendant\u2019s testimony, and defendant made no offer of proof as to the other testimony.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority \u2014 general objections \u2014 failure to show prejudice\nAlthough defendant contends the trial court erred in an alienation of affections and criminal conversation case by permitting plaintiff to cross-examine defendant concerning property owned by defendant\u2019s father and to cross-examine plaintiff\u2019s wife concerning the pendency of charges against her for embezzlement from her place of employment, this assignment of error is dismissed because: (1) defendant did not preserve this issue for appeal by failing to cite any authority and by interposing only general objections at trial; and (2) defendant has neither argued nor demonstrated that he was prejudiced by the challenged cross-examinations.\n4. Child Support, Custody, and Visitation\u2014 support \u2014 amount\nThe trial court did not err in an alienation of affections and criminal conversation case by permitting plaintiff to elicit testimony from an employee in the child support section of superior court concerning the amount of child support which would have been required in 1997 of a person earning the same income as plaintiffs wife earned in 1996, because: (1) contrary to defendant\u2019s assertion that N.C.G.S. \u00a7 8C-1, Rule 702 was violated, the witness was neither offered nor accepted as an expert witness; (2) the witness testified that she had calculated the child support obligation by applying the applicable child support guidelines to the income as shown by the W-2 form of plaintiff\u2019s wife and by determining the presumptive amount of child support; and (3) defendant failed to show prejudice.\n5. Evidence\u2014 redirect examination \u2014 suitcase of drugs\u2014 harmless error\nThe trial court did not commit prejudical error in an alienation of affections and criminal conversation case by admitting plaintiff\u2019s testimony during redirect examination that his wife had told him she had seen a suitcase of drugs at defendant\u2019s residence because, although it does not appear that defendant\u2019s counsel opened the door for the challenged testimony and there is no other basis for its admission, in light of the other evidence this single statement would not have been likely to affect the jury\u2019s verdict or award.\n6. Alienation of Affections\u2014 directed verdict \u2014 judgment notwithstanding verdict \u2014 sufficiency of evidence \u2014 ^post-separation conduct admissible\nThe trial court did not err by denying defendant\u2019s motion for a directed verdict and for judgment notwithstanding the verdict in an action for alienation of affection, because: (1) there was evidence that plaintiff and his wife had a loving marriage until 1996; (2) postseparation conduct is admissible and relevant to corroborate evidence of preseparation conduct, and the evidence of postseparation conduct here provided strong circumstantial evidence explaining and corroborating defendant\u2019s preseparation conduct; (3) defendant admitted to having sexual intercourse with plaintiff\u2019s wife in October 1997 and continuing a sexual relationship with her thereafter; and (4) a jury could find from all the evidence, without having to engage in speculation, that defendant\u2019s conduct was the effective cause of the wife\u2019s alienation of affection.\n7. Alienation of Affections\u2014 motion to set aside verdict\u2014 motion for new trial \u2014 sufficiency of evidence \u2014 preseparation misconduct\nThe trial court did not abuse its discretion by denying defendant\u2019s N.C.G.S. \u00a7 1A-1, Rule 59 motion to set aside the compensatory damage verdict for alienation of affection and by failing to grant a new trial, because there was sufficient evidence of preseparation misconduct on defendant\u2019s part.\n8. Criminal Conversation\u2014 sufficiency of evidence \u2014 postsep-aration sexual relationship \u2014 separation agreement\nThe trial court did not err by submitting the charge of criminal conversation to the jury, because: (1) plaintiff presented substantial evidence, and defendant admitted, that defendant had sexual intercourse with plaintiff\u2019s wife while she was married to plaintiff; (2) a claim for criminal conversation may be based solely upon postseparation sexual relations; (3) the existence of a separation agreement between plaintiff and plaintiff\u2019s wife does not shield defendant from liability for criminal conversation based on his postseparation sexual relationship with plaintiff\u2019s wife; and (4) the cited provision of the separation agreement does not, without evidence of plaintiff\u2019s prior knowledge and approval of defendant\u2019s sexual intercourse with plaintiff\u2019s wife while she was married to plaintiff, establish his consent to such intercourse.\n9. Criminal Conversation\u2014 motion to set aside verdict\u2014 motion for new trial \u2014 sufficiency of evidence\nThe trial court did not abuse its discretion by denying defendant\u2019s N.C.G.S. \u00a7 1A-1, Rule 59 motion to set aside the compensatory damage verdict for criminal conversation and by failing to grant a new trial, because plaintiff presented substantial evidence from which a jury could have determined that he experienced mental anguish and humiliation due to the affair between his wife and defendant including: (1) the testimony of plaintiff\u2019s father as to plaintiff\u2019s depressed mental state; (2) plaintiff\u2019s own testimony that he began consulting with his pastor to help deal with his emotional turmoil; and (3) even up to the week before trial, plaintiff continually tried to contact his former wife by leaving notes on her car asking for a chance to speak with her again.\n10. Alienation of Affections\u2014 punitive damages \u2014 sexual relationship \u2014 laughter about situation \u2014 knowledge affecting children\nThe trial court did not err by awarding punitive damages for an alienation of affection claim, because: (1) evidence of sexual relations between defendant and plaintiffs spouse has been held to satisfy the necessary element of aggravation, and defendant admitted to sexual relations with plaintiffs wife during her marriage to plaintiff; (2) defendant\u2019s laughter about the situation has been held to be evidence of malice, and there was evidence that defendant laughed at plaintiff and his father when they spoke with defendant about his relationship with plaintiff\u2019s wife; and (3) knowledge that the relationship would harm plaintiff\u2019s children has been a factor showing malice, and there was evidence that plaintiffs son told defendant to stay away from his mother.\n11. Criminal Conversation\u2014 punitive damages \u2014 same sexual misconduct sufficient\nThe trial court did not abuse its discretion by denying defendant\u2019s motion for a new trial on the punitive damages issue for a criminal conversation claim, because: (1) the same sexual misconduct necessary to establish the tort of criminal conversation may also sustain an award of punitive damages; and (2) there was sufficient evidence of defendant\u2019s sexual intercourse with plaintiff\u2019s wife during her marriage to plaintiff to support a verdict for plaintiff.\n12. Alienation of Affections\u2014 jury instructions \u2014 active role\u2014 preseparation misconduct\nThe trial court did not err by instructing the jury on alienation of affection even though the court refused to give defendant\u2019s requested instruction that to be liable defendant must have had an active role in alienating the wife\u2019s affection and that any claim must be based on preseparation conduct, because: (1) the instruction given by the trial court established that there must exist some wrongful action on the part of defendant leading to the alienation; (2) there is no indication defendant ever specifically requested that the trial court instruct the jury it was only to consider preseparation conduct or that defendant presented the trial court with any authority in support of such a position; and (3) the fact that the jury had previously been given a different instruction is not grounds for asserting prejudice where the trial court in this case specifically instructed the jury that it was to disregard the prior instruction.\n13. Alienation of Affections\u2014 jury instructions \u2014 compensatory damages\nAlthough defendant contends the trial court erred by instructing the jury as to compensatory damages for alienation of affection that it could consider the degree to which plaintiff and his wife\u2019s relationship was destroyed in addition to plaintiffs mental anguish, shame, humiliation, loss of reputation and support, and any other adverse effect on the quality of the marital relationship, this assignment of error is overruled because: (1) the Court of Appeals previously rejected defendant\u2019s contentions as to the sufficiency of the evidence; and (2) defendant failed to cite any authority to support his argument that the trial court\u2019s instruction was otherwise erroneous.\n14. Criminal Conversation\u2014 jury instruction \u2014 waiver or consent\nThe trial court did not err on the claim of criminal conversation by instructing the jury that it should not consider whether plaintiff and his wife had separated before the sexual intercourse occurred, because the plaintiff\u2019s separation agreement with his wife did not constitute a waiver or consent for sexual intercourse between the wife and another person.\n15. Criminal Conversation \u2014 jury instruction \u2014 factors\nThe trial court did not err by instructing the jury on factors for determining an amount of compensatory damages to award on the criminal conversation claim, because: (1) there was evidence in the record from which the jury could find that plaintiff suffered loss of consortium, mental anguish, or humiliation as a result of defendant\u2019s sexual relationship with plaintiff\u2019s wife; (2) the instruction allowed the jury to award only nominal damages if the factors were not present; and (3) defendant cites no law supporting his attack on the instruction.\n16. Damages and Remedies\u2014 punitive damages \u2014 jury instruction\nThe trial court did not err in an alienation of affections and criminal conversation case by instructing the jury on the issue of punitive damages, because: (1) the trial court instructed the jury that punitive damages were within its discretion to award and that the amount should bear a reasonable relationship to the sum reasonably needed to punish defendant and deter others; (2) defendant cited no authority for alleged violations of his constitutional rights or for why the standard articulated by the judge was not constitutionally adequate; and (3) there is no indication in the record that defendant objected to the instructions on punitive damages or submitted a proposed instruction on the issue.\nAppeal by defendant from judgment entered 9 May 2001 by Judge F. Fetzer Mills in Richmond County Superior Court. Heard in the Court of Appeals 17 September 2002.\nHenry T. Drake for plaintiff-appellee.\nKatherine E. Jean for defendant-appellant." }, "file_name": "0523-01", "first_page_order": 551, "last_page_order": 570 }