{ "id": 9004026, "name": "PATRICIA McCUTCHEN, Plaintiff v. DEBORAH T. McCUTCHEN, Defendant", "name_abbreviation": "McCutchen v. McCutchen", "decision_date": "2005-05-03", "docket_number": "No. COA03-1630", "first_page": "1", "last_page": "16", "citations": [ { "type": "official", "cite": "170 N.C. App. 1" } ], "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": "564 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1076146 ], "opinion_index": 0, "case_paths": [ "/ga-app/255/0263-01" ] }, { "cite": "371 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525560 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0349-01" ] }, { "cite": "554 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379118 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0268-01" ] }, { "cite": "195 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "92", "parenthetical": "\"[W]here the [bar] is properly pleaded and all facts with reference thereto are admitted, the question of limitations becomes a matter of law.\"" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556164 ], "year": 1973, "pin_cites": [ { "page": "519", "parenthetical": "\"[W]here the [bar] is properly pleaded and all facts with reference thereto are admitted, the question of limitations becomes a matter of law.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0515-01" ] }, { "cite": "179 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555517 ], "year": 1971, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0706-01" ] }, { "cite": "571 F. Supp. 433", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3596581 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f-supp/571/0433-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "243 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "421-22" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 226", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552407 ], "year": 1978, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0226-01" ] }, { "cite": "118 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "254 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624685 ], "year": 1961, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0136-01" ] }, { "cite": "172 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "276 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561022 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0292-01" ] }, { "cite": "520 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240350 ], "year": 1999, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0288-01" ] }, { "cite": "170 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1969, "pin_cites": [ { "page": "116", "parenthetical": "\"the two causes of action [alienation of affections and criminal conversation] and the elements of damages ... are so connected and intertwined, only one issue of compensatory damages and one issue of punitive damages should [be] submitted to the jury\"" }, { "page": "109" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 201", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547525 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "220", "parenthetical": "\"the two causes of action [alienation of affections and criminal conversation] and the elements of damages ... are so connected and intertwined, only one issue of compensatory damages and one issue of punitive damages should [be] submitted to the jury\"" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0201-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "574 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249722 ], "year": 2002, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0217-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "361-62" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "346 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "314", "parenthetical": "stating that an order granting a party's motion for summary judgment, reserving for later determination the issue of damages, is an interlocutory order not immediately appealable" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359157 ], "year": 1986, "pin_cites": [ { "page": "446", "parenthetical": "stating that an order granting a party's motion for summary judgment, reserving for later determination the issue of damages, is an interlocutory order not immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0445-01" ] }, { "cite": "597 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631340, 12631341 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/se2d/597/0129-02", "/se2d/597/0129-01" ] }, { "cite": "537 U.S. 1133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9350848, 9351014, 9350695, 9351079, 9350664, 9350889, 9350953, 9351145, 9350727, 9351342, 9351407, 9351279, 9351220, 9350807 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/us/537/1133-05", "/us/537/1133-08", "/us/537/1133-02", "/us/537/1133-09", "/us/537/1133-01", "/us/537/1133-06", "/us/537/1133-07", "/us/537/1133-10", "/us/537/1133-03", "/us/537/1133-13", "/us/537/1133-14", "/us/537/1133-12", "/us/537/1133-11", "/us/537/1133-04" ] }, { "cite": "512 U.S. 1239", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39842, 39210, 39964, 39438, 39663, 39309, 39633, 39792, 39955, 39636, 39823, 39538, 39643, 39292, 39295 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/us/512/1239-02", "/us/512/1239-07", "/us/512/1239-04", "/us/512/1239-11", "/us/512/1239-10", "/us/512/1239-14", "/us/512/1239-09", "/us/512/1239-03", "/us/512/1239-01", "/us/512/1239-13", "/us/512/1239-06", "/us/512/1239-08", "/us/512/1239-12", "/us/512/1239-05", "/us/512/1239-15" ] }, { "cite": "19 S.E. 863", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "pin_cites": [ { "page": "869" } ], "opinion_index": 1 }, { "cite": "114 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "year": 1894, "pin_cites": [ { "page": "749-50" } ], "opinion_index": 1 }, { "cite": "327 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "879-80" } ], "opinion_index": 1 }, { "cite": "313 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725173 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/313/0322-01" ] }, { "cite": "320 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "309", "parenthetical": "\" '[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.' \"" } ], "opinion_index": 1 }, { "cite": "70 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522265 ], "year": 1984, "pin_cites": [ { "page": "350", "parenthetical": "\" '[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.' \"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/70/0345-01" ] }, { "cite": "328 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "313 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721730 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/313/0313-01" ] }, { "cite": "319 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "320-21", "parenthetical": "attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation" } ], "opinion_index": 1 }, { "cite": "70 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521008 ], "year": 1984, "pin_cites": [ { "page": "154-55", "parenthetical": "attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation" } ], "opinion_index": 1, "case_paths": [ "/nc-app/70/0147-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-57", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(c)", "parenthetical": "\"No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.\"" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 50-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "no fault separation and wait time of a year" } ], "opinion_index": 1 }, { "cite": "266 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "596", "parenthetical": "when a cause of action accrues is a question of fact" }, { "page": "596", "parenthetical": "when a cause of action accrues is a question of fact" } ], "opinion_index": 1 }, { "cite": "300 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560941 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "208", "parenthetical": "when a cause of action accrues is a question of fact" }, { "page": "208" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0204-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 1 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "322 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "787" } ], "opinion_index": 1 }, { "cite": "71 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525789 ], "year": 1984, "pin_cites": [ { "page": "468-69" } ], "opinion_index": 1, "case_paths": [ "/nc-app/71/0460-01" ] }, { "cite": "477 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "237" }, { "page": "237", "parenthetical": "criminal conversation is defined as \"actual marriage between the spouses and sexual intercourse between defendant and the plaintiffs spouse during the coverture\"" }, { "page": "238", "parenthetical": "\"while a husband and wife separating appears to contradict any assertions of a 'happy marriage,' this Court has held that the mere fact of separation does not establish a lack of 'genuine love and affection' as a matter of law\"" } ], "opinion_index": 1 }, { "cite": "124 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889511 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "380-81" }, { "page": "380" }, { "page": "381" } ], "opinion_index": 1, "case_paths": [ "/nc-app/124/0377-01" ] }, { "cite": "146 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "parenthetical": "citations omitted" }, { "page": "642" }, { "page": "642", "parenthetical": "the existence of love and affection, whether before or after separation, \"affects the credibility of. . . evidence, but it still remains a question for the jury.\"" } ], "opinion_index": 1 }, { "cite": "266 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562018 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "623", "parenthetical": "citations omitted" }, { "page": "623" }, { "page": "623" } ], "opinion_index": 1, "case_paths": [ "/nc/266/0622-01" ] }, { "cite": "195 N.W.2d 449", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8670031 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "451" }, { "page": "449" } ], "opinion_index": 1, "case_paths": [ "/wis-2d/54/0419-01" ] }, { "cite": "570 So.2d 1196", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7527618 ], "year": 1990, "pin_cites": [ { "page": "1198", "parenthetical": "\"The claim accrues when the alienation or loss of affection is finally accomplished.\"" } ], "opinion_index": 1, "case_paths": [ "/so2d/570/1196-01" ] }, { "cite": "456 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "opinion_index": 1 }, { "cite": "339 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556119 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/339/0730-01" ] }, { "cite": "445 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "336 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535553, 2533826, 2538116, 2536282, 2536063 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc/336/0317-05", "/nc/336/0317-04", "/nc/336/0317-01", "/nc/336/0317-03", "/nc/336/0317-02" ] }, { "cite": "439 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "796-97" } ], "opinion_index": 1 }, { "cite": "113 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523783 ], "year": 1994, "pin_cites": [ { "page": "596-97" } ], "opinion_index": 1, "case_paths": [ "/nc-app/113/0589-01" ] }, { "cite": "358 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "year": 2004, "opinion_index": 1 }, { "cite": "591 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 1 }, { "cite": "358 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2984985 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/nc/358/0137-01" ] }, { "cite": "582 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "345", "parenthetical": "internal citations and quotations omitted" }, { "page": "345" } ], "opinion_index": 1 }, { "cite": "158 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189113 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "707-08", "parenthetical": "internal citations and quotations omitted" }, { "page": "708" } ], "opinion_index": 1, "case_paths": [ "/nc-app/158/0705-01" ] }, { "cite": "154 L. Ed. 2d 823", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 1 }, { "cite": "129 L. Ed. 2d 865", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 1 }, { "cite": "436 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "111", "parenthetical": "\"conclusions are questions of law which are fully reviewable by this Court on appeal\"" } ], "opinion_index": 1 }, { "cite": "335 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528320 ], "year": 1993, "pin_cites": [ { "page": "129", "parenthetical": "\"conclusions are questions of law which are fully reviewable by this Court on appeal\"" } ], "opinion_index": 1, "case_paths": [ "/nc/335/0120-01" ] }, { "cite": "566 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "69", "parenthetical": "citing State v. Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993) (\"conclusions are questions of law which are fully reviewable by this Court on appeal\"), cert. denied, 512 U.S. 1239, 129 L. Ed. 2d 865 (1994)" } ], "opinion_index": 1 }, { "cite": "355 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220086 ], "year": 2002, "pin_cites": [ { "page": "653", "parenthetical": "citing State v. Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993) (\"conclusions are questions of law which are fully reviewable by this Court on appeal\"), cert. denied, 512 U.S. 1239, 129 L. Ed. 2d 865 (1994)" } ], "opinion_index": 1, "case_paths": [ "/nc/355/0642-01" ] }, { "cite": "226 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "380", "parenthetical": "\"Ordinarily our legal system operates in an adversary mode. One incident of this mode is that only those who properly appeal from the judgment of the trial divisions can get relief in the appellate divisions. This can be a strict requirement.\"" } ], "opinion_index": 1 }, { "cite": "290 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561615 ], "year": 1976, "pin_cites": [ { "page": "424", "parenthetical": "\"Ordinarily our legal system operates in an adversary mode. One incident of this mode is that only those who properly appeal from the judgment of the trial divisions can get relief in the appellate divisions. This can be a strict requirement.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0410-01" ] }, { "cite": "156 S.E. 126", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "128" } ], "opinion_index": 1 }, { "cite": "199 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615941 ], "year": 1930, "pin_cites": [ { "page": "792" } ], "opinion_index": 1, "case_paths": [ "/nc/199/0788-01" ] }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "No. 109A04" }, { "page": "402" }, { "page": "402" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "480 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "707", "parenthetical": "\"[T]he rules are not merely ritualistic formalisms, but are essential to our ability to ascertain the merits of an appeal. Furthermore, the appellate rules promote fairness by alerting both the Court and appellee to the specific errors appellant ascribes to the- court below.\"" }, { "page": "708" } ], "opinion_index": 1 }, { "cite": "125 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11867086 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "286" }, { "page": "287" } ], "opinion_index": 1, "case_paths": [ "/nc-app/125/0284-01" ] }, { "cite": "342 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "294 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "58 N.C. App. 818", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526366 ], "year": 1982, "pin_cites": [ { "page": "819" } ], "opinion_index": 1, "case_paths": [ "/nc-app/58/0818-01" ] }, { "cite": "411 S.E.2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "152, n.1" } ], "opinion_index": 1 }, { "cite": "330 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511888 ], "year": 1991, "pin_cites": [ { "page": "362" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0347-01" ] }, { "cite": "85 S.E. 146", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 1 }, { "cite": "169 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656495 ], "year": 1915, "pin_cites": [ { "page": "52" } ], "opinion_index": 1, "case_paths": [ "/nc/169/0048-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "253" } ], "opinion_index": 1 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "379" } ], "opinion_index": 1, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "493 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "800" } ], "opinion_index": 1 }, { "cite": "128 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652448 ], "year": 1997, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 1, "case_paths": [ "/nc-app/128/0101-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "434" } ], "opinion_index": 1 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "page": "209" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0205-01" ] }, { "cite": "493 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "427", "parenthetical": "citing Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)" } ], "opinion_index": 1 }, { "cite": "347 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551130 ], "year": 1997, "pin_cites": [ { "page": "381", "parenthetical": "citing Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)" } ], "opinion_index": 1, "case_paths": [ "/nc/347/0380-01" ] }, { "cite": "420 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "428" } ], "opinion_index": 1 }, { "cite": "332 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503935 ], "year": 1992, "pin_cites": [ { "page": "292" } ], "opinion_index": 1, "case_paths": [ "/nc/332/0288-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "677", "parenthetical": "\"A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.\"" } ], "opinion_index": 1 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23", "parenthetical": "\"A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "511 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "4" } ], "opinion_index": 1 }, { "cite": "350 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132249 ], "year": 1999, "pin_cites": [ { "page": "73" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0071-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "578", "parenthetical": "quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)" } ], "opinion_index": 1 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "161", "parenthetical": "quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "554 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "855" } ], "opinion_index": 1 }, { "cite": "147 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379118 ], "year": 2001, "pin_cites": [ { "page": "273" } ], "opinion_index": 1, "case_paths": [ "/nc-app/147/0268-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(5)" } ], "opinion_index": 1 }, { "cite": "170 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "108", "parenthetical": "\"Although plaintiffs life with her husband apparently had not been as happy and tranquil as some marriages are, she was entitled to possess and enjoy all of her legally protected marital interests free from interference by the defendant.\"" } ], "opinion_index": 1 }, { "cite": "6 N.C. App. 201", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547525 ], "year": 1969, "pin_cites": [ { "page": "208", "parenthetical": "\"Although plaintiffs life with her husband apparently had not been as happy and tranquil as some marriages are, she was entitled to possess and enjoy all of her legally protected marital interests free from interference by the defendant.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/6/0201-01" ] } ], "analysis": { "cardinality": 1465, "char_count": 38697, "ocr_confidence": 0.735, "pagerank": { "raw": 9.080909414884279e-08, "percentile": 0.5054418230560932 }, "sha256": "751d1bb4ffd884b44171493414272133c623c70993d5c03698c00f4744a78663", "simhash": "1:0a295464a67a2470", "word_count": 6238 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "PATRICIA McCUTCHEN, Plaintiff v. DEBORAH T. McCUTCHEN, Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nPatricia McCutchen (plaintiff) appeals an order filed 6 August 2003, granting Deborah T. McCutchen\u2019s (defendant) motion for summary judgment as to plaintiffs claim for alienation of affections.\nPlaintiff and Byron McCutchen were married on 1 June 1968, separated on 9 September 1998, and divorced on 30 May 2002. Their marriage produced three children who are all now adults.\nDefendant became acquainted with Byron through her membership with Greenwood Forest Baptist Church, where Byron was a deacon. Defendant and Byron began a sexual relationship in September 1998, and after plaintiff and Byron were divorced, defendant and Byron married.\nPlaintiff commenced an action for alienation of affections and criminal conversation on 25 April 2003. On 21 July 2003, plaintiff\u2019s motion for summary judgment was granted as to the criminal conversation claim, with damages to be reserved for further hearing. By order filed 6 August 2003, defendant\u2019s motion for summary judgment as to the claim for alienation of affections was granted. Plaintiff filed notice of appeal on 26 August 2003.\nInterlocutory Appeal\nThe trial court\u2019s ruling on a motion for summary judgment, leaving the issue of damages remaining for review, is not a final judgment, but instead interlocutory in nature, and therefore is not immediately appealable. See Schuch v. Hoke, 82 N.C. App. 445, 446, 346 S.E.2d 313, 314 (1986) (stating that an order granting a party\u2019s motion for summary judgment, reserving for later determination the issue of damages, is an interlocutory order not immediately appealable). N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) states in pertinent part:\nIn the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.\nN.C.G.S. \u00a7 1A-1, Rule 54(b) (2003); see also Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). \u201cEven if the lower court\u2019s ruling . . . was considered a final judgment as to the issue presented, no appeal of right will lie unless the decree is certified for appeal by the trial court pursuant to . . . Rule 54(b) .... As that is not the case, here, plaintiffs\u2019 appeal is premature.\u201d Munden v. Courser, 155 N.C. App. 217, 218, 574 S.E.2d 110, 112 (2002).\nIn certain instances, this Court may review interlocutory appeals pursuant to N.C. Gen. Stat. \u00a7 l-277(a) and 7A-27(d)(l), which allow for review of interlocutory appeals if \u201cthe trial court\u2019s decision deprives the appellant of a substantial right which would be lost absent immediate review.\u201d N.C. Dept. of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). For this Court to review the appeal on its merits, \u201cthe right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment.\u201d Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990).\nPursuant to Rule 28 of the North Carolina Rules of Appellate Procedure, appellant\u2019s brief must contain a statement of the grounds for appellate review containing therein \u201csufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.\u201d N.C. R. App. P. 28(b)(4). In the instant case, plaintiff failed to comply with this requirement, as plaintiff\u2019s brief does not contain a statement regarding whether a substantial right would be affected if this appeal were not immediately reviewed. During oral arguments, however, plaintiff did state that if this appeal is deemed to be interlocutory, a substantial right is affected, subjecting the trial court\u2019s ruling to immediate appeal. In addition, defendant did brief and present at oral arguments, statements that this appeal is an interlocutory appeal and reasons the trial court\u2019s ruling is immediately appealable.\nNotwithstanding the fact that no final judgment was entered as to the issue of damages for the tort of criminal conversation, nor was Rule 54 certification granted, we conclude that this appeal does affect a substantial right which would be lost absent immediate review. Specifically, as both parties acknowledged at oral argument and defendant contended in her brief, \u201c[s]ince the elements of damages are so closely related, they do not support separate awards for each tort.\u201d 1 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a75.48(A), at 415 (5th ed.); see Sebastian v. Kluttz, 6 N.C. App. 201, 220, 170 S.E.2d 104, 116 (1969) (\u201cthe two causes of action [alienation of affections and criminal conversation] and the elements of damages ... are so connected and intertwined, only one issue of compensatory damages and one issue of punitive damages should [be] submitted to the jury\u201d).\nThe sole issue on appeal is whether the trial court erred in granting defendant\u2019s motion for summary judgment as to the alienation of affections claim.\nPursuant to Rule 56(c) of the Rules of Civil Procedure, summary judgment \u201cshall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law.\u201d N.C.G.S. \u00a7 1A-1, Rule 56(c) (2003). The moving party has the burden of establishing the absence of any genuine issue of material fact, and the trial court should view the evidence in the light most favorable to the nonmoving party. Norris v. Zambito, 135 N.C. App. 288, 293, 520 S.E.2d 113, 116 (1999).\nIn North Carolina, civil actions may only be commenced within time periods specified in Chapter 1 of the North Carolina General Statutes, except where, in special cases, a different limitation is specified by statute. N.C.G.S. \u00a7 l-15(a) (2003) (\u201cCivil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.\u201d). Accrual of a cause of action is the point at which we determine when the limitation period begins to run. N.C.G.S. \u00a7 l-15(a) (2003); see Hoyle v. City of Charlotte, 276 N.C. 292, 307 172 S.E.2d 1, 11 (1970). A cause of action accrues and the statute of limitations begins to run at the time in which a party becomes liable. Sebastian, 6 N.C. App. at 210, 170 S.E.2d at 109. The statute of limitations does not begin to run until the plaintiff is entitled to sue. Willetts v. Willetts, 254 N.C. 136, 145, 118 S.E.2d 548, 554 (1961). Rather, once the cause of action accrues and the statute of limitations begins to run, the statute of limitations continues to run uninterrupted unless stayed by judicial process. Travelers Ins. Co. v. Rushing, 36 N.C. App. 226, 228, 243 S.E.2d 420, 421-22 (1978).\nPursuant to N.C. Gen. Stat. \u00a7 1-52(5), the statute of limitations is three years for \u201ccriminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated.\u201d N.C.G.S. \u00a7 1-52(5) (2003). Absent other specific limitations, subdivision (5) of N.C. Gen. Stat. \u00a7 1-52, appears to apply to all causes of action for personal injuries not elsewhere specified by statute, including the cause of action for alienation of affections. See Smith v. Cessna Aircraft Co., 571 F. Supp. 433 (M.D.N.C. 1983). \u201c[If] the plaintiffs claim is barred by the running of the statute of limitations [] . . . defendant [is] entitled to judgment as a matter of law, and summary judgment . . . [is] appropriate.\u201d Brantley v. Dunstan, 10 N.C. App. 706, 706, 179 S.E.2d 878, 878 (1971); see also Yancey v. Watkins, 17 N.C. App. 515, 519, 195 S.E.2d 89, 92 (1973) (\u201c[W]here the [bar] is properly pleaded and all facts with reference thereto are admitted, the question of limitations becomes a matter of law.\u201d).\nIn Pharr v. Beck, 147 N.C. App. 268, 554 S.E.2d 851 (2001), plaintiff-wife was awarded damages based on the alienation of her husband\u2019s affections by defendant-mistress. The trial court denied the mistress\u2019s motion for directed verdict and judgment notwithstanding the verdict. The mistress appealed.\nOn appeal, the mistress argued that the merits of the alienation of affections claim should have been determined solely based on the events occurring prior to the date of separation. The wife contended that her claim was properly founded on events not only occurring prior to divorce, but including a period of time after the spouses separated. This Court held that the pre-separation evidence revealed that the mistress engaged in intentional conduct that probably affected the husband\u2019s marital relationship with his wife, and this conduct was the effective cause of the husband\u2019s loss of affections for his wife. This Court also held that it was inconsistent to permit a spouse to recover damages in an alienation of affections claim against a third party for conduct post-separation while prohibiting consideration of conduct post-separation in an alimony claim. Accordingly, this Court concluded \u201can alienation of affection[s] claim must be based on pre-separation conduct, and post-separation conduct is admissible only to the extent it corroborates pre-separation activities resulting in the alienation of affectionfs].\u201d Pharr, 147 N.C. App. at 273, 554 S.E.2d at 855. This Court ultimately held the trial court correctly denied the mistress\u2019s motions for directed verdict and judgment notwithstanding the verdict.\nPlaintiff argues that Pharr is not a statute of limitations case and cannot be interpreted so as to stay a cause of action founded upon post-separation activities. Rather, plaintiff relies on Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988), as authority for the proposition that the statute of limitations was tolled as the extramarital conduct constituted an ongoing violation.\nIn Darnell, defendant-mistress appealed an order in favor of plaintiff-wife in her action for alienation of affections. The husband, who worked with the mistress, developed a romantic relationship with the mistress which resulted in sexual encounters. Several of these sexual encounters occurred in North Carolina but also included sexual encounters occurring out of state. Ultimately, the mistress moved in with the husband at his residence in Maryland.\nOn appeal, the mistress contended that an issue of fact existed as to which state the claim for alienation of affections accrued. The mistress further argued that the trial court committed prejudicial error by refusing to submit this issue to the jury. The trial court held that the mistress\u2019s answer to the complaint contended that her actions occurred primarily out of state. This Court held the question of where the tort occurred, giving rise to the mistress\u2019s liability, was an issue of fact material to both the substantive law applicable to the wife\u2019s cause of action and the mistress\u2019s defense. In addition this Court held the mistress\u2019s answer demanded a trial by jury on all issues of fact.\nThe issue presented in Darnell is distinguishable from the issue presented in the instant case. Specifically, plaintiff has not contended that any of the acts constituting the cause of action occurred out of state. Moreover, plaintiff has conceded the acts complained of occurred pre-separation more than three years prior to filing her complaint. Based on the clear mandate of Pharr \u2014 \u201can alienation of affectionfs] claim must be based on pre-separation conduct\u201d \u2014 we must conclude that the trial court properly granted summary judg-merit in favor of defendant as to the alienation of affections claim. See Pharr, 147 N.C. App. 268, 564 S.E.2d 851. Accordingly, this assignment of error is overruled.\nAffirmed.\nJudge HUDSON concurs.\nJudge TYSON dissents in a separate opinion.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion affirms the trial court\u2019s grant of summary judgment in defendant\u2019s favor dismissing plaintiff\u2019s claim of alienation of affections. This interlocutory appeal is not properly before this Court and should be dismissed. Plaintiff also failed to comply with the North Carolina Rules of Appellate Procedure. I respectfully dissent.\nI. Appellate Review of Interlocutory Anneals\nThe majority\u2019s opinion correctly determines plaintiff\u2019s appeal is interlocutory as it was \u201c \u2018made during the pendency of an action which [did] not dispose of the case, but instead [left] it for further action by the trial court to settle and determine the entire controversy.\u2019\u201d Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)); Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (\u201cA grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.\u201d). Their opinion further recognizes there is generally no right of immediate appeal from an interlocutory order. Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992). An interlocutory order may only be considered on appeal where either: (1) certification by the trial court for immediate review under N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2003); or (2) \u201ca substantial right\u201d of the appellant is affected. Tinch v. Video Industrial Services, 347 N.C. 380, 381, 493 S.E.2d 426, 427 (1997) (citing Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)); N.C. Gen. Stat. \u00a7 l-277(a) (2003); N.C. Gen. Stat. \u00a7 7A-27(d) (2003). The trial court did not certify its order as immediately appealable and plaintiff did not assert in her brief a \u201csubstantial right\u201d would be lost absent immediate review.\nFinally, the majority\u2019s opinion correctly cites Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure to require the appellant\u2019s brief to include a \u201cstatement of the grounds for appellate review.\u201d N.C.R. App. P. 28(b)(4) (2004); see Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 105-06, 493 S.E.2d 797, 800 (1997). The \u201cstatement of the grounds\u201d must contain sufficient facts and argument to support appellate review on the grounds that the challenged judgment either affects a substantial right, or was certified by the trial court for immediate appellate review, if the appeal is interlocutory. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). It is the appellant\u2019s duty to provide this Court the grounds to invoke our jurisdiction and to warrant appellate review. Id.\nPlaintiff included a \u201cstatement of the grounds for appellate review,\u201d but did not address the interlocutory nature of her appeal. Further, plaintiff did not assert in her brief any \u201csubstantial rights\u201d that will be adversely affected if this Court does not immediately review the trial court\u2019s interlocutory order. Despite plaintiff\u2019s failure to either address the interlocutory nature of her appeal or argue in her brief the substantial right that will be lost without immediate appeal, the majority\u2019s opinion finds and sets forth that plaintiff asserts a substantial right to invoke our jurisdiction and warrant our review.\nThe majority\u2019s opinion bases its improper decision to reach the merits on plaintiff\u2019s oral argument of a substantial right that will be lost without immediate review. Contentions presented at oral argument, but not supported in the written briefs, will not be considered. Mitchem v. Mitchem, 169 N.C. 48, 52, 85 S.E. 146, 147-48 (1915). Parties are not permitted to cite or discuss authority not presented in their briefs or in memoranda of additional authority filed with the Court. State v. Faison, 330 N.C. 347, 362, 411 S.E.2d 143, 152, n.1 (1991); N.C.R. App. P. 28(g) (2004). A party\u2019s oral argument cannot extend beyond those arguments in their written briefs. The majority\u2019s holding permits parties at oral argument to salvage otherwise dismissible appeals or to assert additional arguments, second chance luxuries not available to those who comply with the rules and whose cases are decided upon the written briefs alone.\n\u201cRules of Appellate Procedure are mandatory and failure to observe them is grounds for dismissal of the appeal.\u201d State v. Wilson, 58 N.C. App. 818, 819, 294 S.E.2d 780 (1982), cert. denied, -N.C.. -, 342 S.E.2d 907 (1986); Shook v. County of Buncombe, 125 N.C. App. 284, 286, 480 S.E.2d 706, 707 (1997) (\u201c[T]he rules are not merely ritualistic formalisms, but are essential to our ability to ascertain the merits of an appeal. Furthermore, the appellate rules promote fairness by alerting both the Court and appellee to the specific errors appellant ascribes to the- court below.\u201d). \u201cIt is not the role of the appellate courts ... to create an appeal for an appellant.\u201d Viar v. N. C. Dept. of Transportation, 359 N.C. 400, 402, -S.E.2d -, - (April 2, 2005) (No. 109A04). \u201c[I]n fairness to all who come before this Court, [the appellate rules] must be enforced uniformly.\u201d Shook, 125 N.C. App. at 287, 480 S.E.2d at 708. \u201c[OJtherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.\u201d Viar, 359 N.C. at 402,-S.E.2d at-(citation omitted). Our appellate Courts have long held that appeals should be dismissed for \u201cfailure to comply with the rules.\u201d Pruitt v. Wood, 199 N.C. 788, 792, 156 S.E. 126, 128 (1930); In re Lancaster, 290 N.C. 410, 424, 226 S.E.2d 371, 380 (1976) (\u201cOrdinarily our legal system operates in an adversary mode. One incident of this mode is that only those who properly appeal from the judgment of the trial divisions can get relief in the appellate divisions. This can be a strict requirement.\u201d) (citation omitted).\nPlaintiffs attempts at oral argument to amend her arguments to avoid dismissal does not allow review of the merits of her appeal. This appeal should be dismissed due to both its interlocutory nature and plaintiffs failure to argue in her brief any substantial rights that will be adversely affected without this Court\u2019s immediate review.\nII. Alienation of Affections\nThe majority holds on the merits the statute of limitations per se accrues upon the date of separation for a claim of alienation of affections. I disagree. The date of actual accrual is when the tortfeasor\u2019s alienation is fully accomplished. Plaintiff proffered substantial evidence and facts to raise a genuine issue of material fact whether the alienation of her husband\u2019s affections was not fully accomplished until February 2001. Her complaint was filed on 25 April 2003, well within the three year statute of limitations. The trial court improperly granted summary judgment in defendant\u2019s favor.\nA. Standards of Review\nWe review a trial court\u2019s conclusions of law under the de novo standard. State v. Hyatt, 355 N.C. 642, 653, 566 S.E.2d 61, 69 (2002) (citing State v. Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993) (\u201cconclusions are questions of law which are fully reviewable by this Court on appeal\u201d), cert. denied, 512 U.S. 1239, 129 L. Ed. 2d 865 (1994)), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).\nThe standard of review of a grant of summary judgment is well-established.\nThe standard of review on appeal from the granting of a motion for summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. The moving party has the burden of establishing the lack of any triable issue of fact. A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff\u2019s case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.\nOnce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial. To hold otherwise ... would be to allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment.\nDraughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 705, 707-08, 582 S.E.2d 343, 345 (2003) (internal citations and quotations omitted) (alterations in original), aff\u2019d, 358 N.C. 137, 591 S.E.2d 520, reh\u2019g denied, 358 N.C. 381, 597 S.E.2d 129 (2004).\n1. De Novo Review of Alienation of Affections\nThe majority\u2019s opinion correctly states that the statute of limitations for asserting a claim for alienation of affections is three years. N.C. Gen. Stat. \u00a7 1-52(5). The issue before this Court is when this cause of action accrues and the statute of limitations begins to run.\na. Accrual of Statute of Limitations\nThis Court indirectly referred to this issue in Sharp v. Teague, 113 N.C. App. 589, 596-97, 439 S.E.2d 792, 796-97, reh\u2019g granted, 336 N.C. 317, 445 S.E.2d 397-98 (1994), rev. dismissed, 339 N.C. 730, 456 S.E.2d 771 (1995). Sharp concerned claims brought by a client against her former attorneys. Id. One of the plaintiff\u2019s claims alleged negligence against the former attorney for failure to file an alienation of affections claim against a third party. Id. This Court cited 41 Am. Jur. 2d, Husband and Wife \u00a7 481 (1968) to state an \u201calienation of affection claim accrues at the time of the loss of affection.\u201d Id.\nThis ruling on accrual of the claim is supported by other jurisdictions which have considered the issue. Overstreet v. Merlos, 570 So.2d 1196, 1198 (Miss. Sup. Ct. 1990) (\u201cThe claim accrues when the alienation or loss of affection is finally accomplished.\u201d) (citation omitted); Dobrient v. Ciskowski, 195 N.W.2d 449, 451 (Wisc. Sup. Ct. 1972) (\u201cOrdinarily, the alienation of affection is the gradual result of a series of wrongful acts over a substantial period of time culminating in a loss of consortium. The cause of action accrues when the alienation or loss of affection is finally accomplished.\u201d (citations omitted)); 41 Am. Jur. 2d, Husband and Wife \u00a7 284 (1995) (The statute of limitations generally commences to run against a cause of action for alienation of affections when the alienation is fully accomplished.).\nb. The Elements\nThe elements of alienation of affections are: (1) a marriage; (2) a genuine love and affection existed between the spouses; (3) the love and affection existing between the spouses was alienated and destroyed; and (4) the wrongful and malicious acts of the defendant caused the loss and alienation of such love and affection. Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641 (1966) (citations omitted). The second element of existing love and affection may be satisfied in less than stable marriages. See 1 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 5.46(A), at 394-95 (5th ed 1998) (citing Sebastian v. Kluttz, 6 N.C. App. 201, 208, 170 S.E.2d 104, 108 (1969) (\u201cAlthough plaintiffs life with her husband apparently had not been as happy and tranquil as some marriages are, she was entitled to possess and enjoy all of her legally protected marital interests free from interference by the defendant.\u201d)); see also Brown v. Hurley, 124 N.C. App. 377, 380-81, 477 S.E.2d 234, 237 (1996) (\u201cThe plaintiff does not have to prove that his spouse had no affection for anyone else or that their marriage was previously one of \u2018untroubled bliss;\u2019 he only has to prove that his spouse had some genuine love and affection for him and that love and affection was lost as a result of defendant\u2019s wrongdoing.\u201d)) (citation omitted).\nUnlike the related claim of criminal conversation: (1) there need not be a definitive act which triggers liability, see Brown, 124 N.C. App. at 380, 477 S.E.2d at 237 (criminal conversation is defined as \u201cactual marriage between the spouses and sexual intercourse between defendant and the plaintiffs spouse during the coverture\u201d); and (2) the intruding third party is not always a paramour, see Reynolds, supra, \u00a7 5.46(A), at 396-97 (alienation of affection actions arise against in-law parties and near relatives, but plaintiffs may face the doctrine of family privilege as an obstacle). Alienation of affections develops from \u201ca series of wrongful acts over a substantial period of time\u201d resulting in an aggrieved party\u2019s loss of their loved one\u2019s affection. See Dobrient, 195 N.W.2d at 449.\nDefendant and the majority\u2019s opinion cite Pharr v. Beck to hold that a claim of alienation of affections must be based upon evidence of pre-separation conduct, and post-separation conduct is admissible only as corroborative evidence. 147 N.C. App. at 273, 554 S.E.2d at 855. Pharr addressed whether events occurring after the date of separation may be used as evidence to support a claim of alienation of affections. Id. In contrast, the issue before us involves the date of accrual of the tort. The majority\u2019s opinion extends Pharr to hold the date of separation is the per se date of accrual to assert an alienation of affections claim. While Pharr controls the evidentiary basis for the cause of action, it does not support the majority\u2019s notion that the statute of limitations period begins to run from the date of separation per se.\nAll precedents examining this issue hold the action accrues and the statute of limitations begins to run when the loss of affection is complete. See Reynolds, supra, \u00a7 5.46(A), at 395 (\u201cSince the spouses could have reconciled, the plaintiff has a claim when the defendant ends that opportunity.\u201d) (citing 1 H. Clark, Law of Domestic Relations \u00a7 12.2, at 656-57 (2d ed. 1987) (\u201cThe rationale is that even though the spouses are living apart, there is always a chance of reconciliation, and if the defendant\u2019s conduct has ended that chance, the action will lie.\u201d)); see also Brown, 124 N.C. App. at 381, 477 S.E.2d at 238 (\u201cwhile a husband and wife separating appears to contradict any assertions of a \u2018happy marriage,\u2019 this Court has held that the mere fact of separation does not establish a lack of \u2018genuine love and affection\u2019 as a matter of law\u201d) (citing Cannon v. Miller, 71 N.C. App. 460, 468-69, 322 S.E.2d 780, 787 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985)). The total loss of affections and consortium may occur months or years after the date the parties separated. The existence of love and affection, whether before or after separation, \u201caffects the credibility of his evidence, but it still remains a question for the jury.\u201d Litchfield, 266 N.C. at 623, 146 S.E.2d at 642.\nThe statute of limitations for a claim of alienation of affections is tolled until the alienation is complete, when the injury is fully realized. When this event occurs is an issue for the fact-finder to determine. Snyder v. Freeman, 300 N.C. 204, 208, 266 S.E.2d 593, 596 (1980) (when a cause of action accrues is a question of fact). The trial court and the majority\u2019s opinion disregards substantial evidence of the parties\u2019 numerous attempts to reconcile while separated.\nMany spouses may live separate and with strained affections, but attempt to reconcile over the course of months or several years before seeking a divorce. By holding the date of separation per se begins the statute to run, the aggrieved party is punished for foregoing legal action during attempts to reconcile with their loved one. The ominous presence of a ticking clock from the date of separation will no doubt adversely affect any efforts towards reconciliation. Under the majority\u2019s holding, potential claims against the persistent intruder may become stale before reconciliation cease and the alienation of affections is complete.\nb. Analysis\nPlaintiff proffered evidence showing her husband, Byron, and defendant met at church and began a relationship resulting from their mutual involvement there. Their relationship became intimate in September 1998. Pl\u00e1intiff and Byron separated that month. Following the initial date of separation, plaintiff and Byron attempted to reconcile by attending counseling sessions, both jointly and individually. On three separate occasions, Byron expressed his desire to reconcile with plaintiff and avoid divorce. After separating, plaintiff and Byron purchased a vehicle together, paid for from a joint account. Byron told plaintiff that he had ended his relationship with defendant and planned to return to the marriage. Byron asked plaintiff to refrain from commencing legal action during this period. Plaintiff agreed, \u201cbecause I wanted to save my marriage.\u201d The evidence shows these and other attempts towards the parties reconciling continued until February 2001.\nFurther evidence of the parties\u2019 attempts towards reconciliation beyond 9 September 1998 are shown by Byron\u2019s decision to not involve the judicial system during separation. The record is devoid of any evidence of a separation agreement between plaintiff and Byron or attempts by Byron to seek a judicial decree of separation or divorce from bed and board. In addition, Byron did not file for divorce from plaintiff until 26 September 2000, one year and seventeen days after the date he was permitted to do so under N.C. Gen. Stat. \u00a7 50-6.\nThe trial court ruled and the majority\u2019s opinion affirms that plaintiff\u2019s claim against defendant for alienation of affections per se accrued on 9 September 1998, the date of separation. Consequently, the statute of limitations for plaintiff to assert a claim for alienation of affections would expire on 9 September 2001, three years later. Plaintiff and Byron jointly attempted to reconcile their marriage from 9 September 1998 until February 2001. These efforts included plaintiff refraining from taking legal action against defendant at Byron\u2019s request.\nApplying the majority\u2019s holding to plaintiff\u2019s situation, her claim against defendant for alienation of affections would have expired in September 2001. As plaintiff and Byron attempted to reconcile until February 2001, plaintiff would have only six months to file her claim before the statute of limitations would have run. This holding is an unfair and punitive limitation placed upon an aggrieved party seeking to reconcile with his or her spouse, after forbearing on legal action against defendant \u201cbecause [she] wanted to save her marriage.\u201d Parties whose affections are truly alienated would not have engaged in the many attempts and actions that plaintiff and her husband completed towards reconciliation. Plaintiff was not dilatory in filing her present action. This action was filed less than one year after plaintiff and Byron divorced.\nAccrual of a claim for alienation of affections after the last attempts of reconciliation comports with North Carolina\u2019s demonstrated interest in the importance of protecting marriage. N.C. Gen. Stat. \u00a7 50-6 (2003) (no fault separation and wait time of a year); N.C. Gen. Stat. \u00a7 8-57(c) (2003) (\u201cNo husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.\u201d); see Lee, supra, \u00a7 5.46(A), at 395 (neither a separation agreement nor divorce decree prevent a plaintiff from filing an action against a defendant for alienation of affections) (citations omitted); Thompson v. Thompson, 70 N.C. App. 147, 154-55, 319 S.E.2d 315, 320-21 (1984) (attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation), rev\u2019d on other grounds, 313 N.C. 313, 328 S.E.2d 288 (1985); Cannon, 313 N.C. 324, 327 S.E.2d 888 (the causes of action for criminal conversation and alienation of affections are recognized and valid in North Carolina); In re Webb, 70 N.C. App. 345, 350, 320 S.E.2d 306, 309 (1984) (\u201c \u2018[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation\u2019s history and tradition.\u2019 \u201d) (quotation omitted), aff\u2019d, 313 N.C. 322, 327 S.E.2d 879, 879-80 (1985).\nDefendant\u2019s intrusion into plaintiff\u2019s marriage spanned several years prior to the date of separation. Defendant\u2019s interloping continued during plaintiff and Byron\u2019s repeated reconciliation efforts after their initial separation and eventually culminated with Byron\u2019s divorce from plaintiff and subsequent marriage to defendant. Plaintiff\u2019s injury accrued when Byron\u2019s affections were not decreased, but \u201calienated\u201d upon the cessation of reconciliation efforts in February 2001. A decrease in affections as shown by the single fact of separation does not per se equal accrual of the claim. Plaintiff filed her complaint on 25 April 2003, within the three year statute of limitations after all reconciliation efforts ceased, and less than one year after her divorce became final.\nB. Summary Judgment\n\u201cSummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d Draughon, 158 N.C. App. at 708, 582 S.E.2d at 345. The determination of when a spouse\u2019s affections are completely alienated and the cause of action accrues is a question of fact. See Snyder, 300 N.C. at 208, 266 S.E.2d at 596 (when a cause of action accrues is a question of fact); see also Litchfield, 266 N.C. at 623, 146 S.E.2d at 642 (the existence of love and affection, whether before or after separation, \u201caffects the credibility of. . . evidence, but it still remains a question for the jury.\u201d). The date of separation is not the per se end of affections and a bright line point of accrual.\nPlaintiff presented sworn testimony that she and Byron attempted to reconcile until February 2001, two and a half years after they separated. Byron\u2019s own actions indicate his initial intentions to reconcile after separating from plaintiff on 9 September 1998. This creates a genuine issue of a material fact for a fact-finder to consider. Defendant was not entitled to a judgment as \u201ca matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56. The trial court erred in granting summary judgment to defendant.\nIII. Conclusion\nI vote to dismiss this appeal due: (l)-to its interlocutory nature; (2) no trial court certification; (3) the absence of a proper assertion of a substantial right; and (4) plaintiffs failure to abide by the North Carolina Rules of Appellate Procedure. Viar, 359 N.C. at 402, - S.E.2d at -. Plaintiff should not be afforded a second opportunity to address the interlocutory nature of her appeal solely because the case was orally argued. See Smith v. R.R., 114 N.C. 729, 749-50, 19 S.E. 863, 869 (1894) (warning that, \u201cLooseness of language and dicta in judicial opinions, either silently acquiesced in or perpetuated by inadvertent repetition, often insidiously exert their influence until they result in confusing the application of the law, or themselves become crystallized into a kind of authority which the courts, without reference to true principle, are constrained to follow.\u201d).\nIn the alternative and in response to the majority\u2019s opinion addressing the merits of plaintiffs appeal, the trial court erred in granting defendant\u2019s motion for summary judgment. The date of separation is not the per se date of accrual for claims of alienation of affections. The cause of action accrues when the spouse\u2019s affections have been completely alienated from the aggrieved party by the defendant. This date is a question of fact for the jury.\nThe majority\u2019s holding punishes those attempting to reconcile their relationship and to save their injured marriages by rewarding tortious conduct by intruding third parties. Future defendants will be rewarded with an affirmative defense to an aggrieved party\u2019s desire and attempts to reconcile.\nPlaintiff here is punished for working for two and a half years to save her marriage by now requiring her to have filed her claim in six months after reconciliation efforts ended. Plaintiff proffered substantial and uncontradicted evidence to show she and her husband attempted to reconcile until February 2001. Genuine issues of material fact, which a fact-finder must consider, preclude summary judgment for defendant. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "The Mueller Law Firm, P.A., by Colby L. Hall, for plaintiff - appellant.", "Tharrington Smith, L.L.P., by Lynn P Burleson and Suzanne R. Ladd, for defendant-appellee." ], "corrections": "", "head_matter": "PATRICIA McCUTCHEN, Plaintiff v. DEBORAH T. McCUTCHEN, Defendant\nNo. COA03-1630\n(Filed 3 May 2005)\n1. Appeal and Error\u2014 appealability \u2014 summary judgment\u2014 substantial right \u2014 alienation of affections \u2014 criminal conversation\nAlthough plaintiff\u2019s appeal from the trial court\u2019s grant of summary judgment for defendant as to plaintiff\u2019s claim for alienation of affections is an appeal from an interlocutory order, a substantial right is affected where the trial court granted plaintiff\u2019s motion for summary judgment on her claim for criminal conversation but reserved the issue of damages for further hearing, because the elements of damages are so closely related between this claim and the claim for criminal conversation that they do not support separate awards for each case.\n2. Alienation of Affections; Statutes of Limitation and Repose\u2014 preseparation conduct \u2014 summary judgment\nThe trial court did not err by granting defendant\u2019s motion for summary judgment as to plaintiff\u2019s claim for alienation of affections, because: (1) the statute of limitations under N.C.G.S. \u00a7 1-52(5) provides a three-year limit for criminal conversation or for any other injury to the person or rights of another not arising on contract or otherwise enumerated, and absent other specific limitations this statute applies to all causes of action for personal injuries not elsewhere specified by statute including the cause of action for alienation of affections; (2) plaintiff has conceded the acts complained of occurred preseparation more than three years prior to filing her complaint; and (3) an alienation of affections claim must be based on preseparation conduct.\nJudge Tyson dissenting.\nAppeal by plaintiff from order filed 6 August 2003 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 15 September 2004.\nThe Mueller Law Firm, P.A., by Colby L. Hall, for plaintiff - appellant.\nTharrington Smith, L.L.P., by Lynn P Burleson and Suzanne R. Ladd, for defendant-appellee." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 46 }