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  "name": "KATHRYN G. HEIST v. SARA W. FAIRCLOTH HEIST",
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    "judges": [
      "Judges CLARK and ERWIN concur."
    ],
    "parties": [
      "KATHRYN G. HEIST v. SARA W. FAIRCLOTH HEIST"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nDefendant by her first assignment of error contends that the trial court erred in failing to grant her motion for a directed verdict at the close of plaintiff\u2019s evidence. Defendant failed to state specific grounds for her motion for a directed verdict as required by Rule 50(a), N.C. Rules of Civ. Proc. Although the provision in Rule 50(a) that a motion for a directed verdict shall state the specific grounds therefore is mandatory, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties. Anderson v. Butler, 284 N.C. 723, 202 S.E. 2d 585 (1974). Because it is obvious in the instant case that the motion challenged the sufficiency of the evidence to carry the case to the jury, we elect to review the denial of defendant\u2019s motion for a directed verdict.\nIn order to sustain a cause of action for alienation of affections, the plaintiff must show the following facts:\n(1) that she and her husband were happily married and that a genuine love and affection existed between them;\n(2) that the love and affection so existing was alienated and destroyed;\n(3) that the wrongful and malicious acts of defendant produced and brought about the loss and alienation of such love and affection.\nWarner v. Torrence, 2 N.C. App. 384, 163 S.E. 2d 90 (1968). Where, as here, there is no element of sexual defilement of plaintiff\u2019s husband, malice must be shown. \u201cMalice as used in an action for alienation of affections means \u2018unjustifiable conduct causing the injury complained of.\u2019 (Citation omitted.) Malice also means \u2018a disposition to do wrong without legal excuse (citation omitted), or as a reckless indifference to the rights of others.\u2019 \u201d (Citation omitted.) Sebastian v. Kluttz, 6 N.C. App. 201, 206, 170 S.E. 2d 104, 106 (1969). \u201cThe wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections. It suffices, according to the rule in the large majority of the cases, if the wrongful and malicious conduct of the defendant is the controlling or effective cause of the alienation, even though there were other causes, which might have contributed to the alienation.\u201d Bishop v. Glazener, 245 N.C. 592, 596, 96 S.E. 2d 870, 873 (1957).\nDefendant contends that plaintiff\u2019s evidence failed to show that any genuine love and affection existed between plaintiff and her husband or that defendant was the controlling cause of the alienation.\nThe evidence of the plaintiff tended to show that she and her husband were married in 1937 and they have two adult children. Plaintiff testified that prior to the problems that caused the separation she and her husband had a very good happy marriage; that they were very close and that they were never separated. William R. Davis, who had been acquainted with plaintiff and her husband for approximately thirty years, testified that in his opinion plaintiff and defendant enjoyed a happy marriage. In 1968 Mr. Davis was not aware of problems between them although at this time it had been about ten years since he had seen both of them socially together. Maxine Woosley, who had known plaintiff for twenty-six years and who prior to the separation saw plaintiff and her husband together once a week, thought plaintiff and her husband had a good marriage prior to \u201cthis other situation.\u201d Jimmy Woosley stated that it was his opinion that prior to the problems, they had a good marriage and it appeared to be a happy marriage.\nPlaintiff further testified that the love and affection so existing was destroyed. In the late 1960\u2019s plaintiff observed a change in their marriage and in her husband. Her husband was cool toward plaintiff, did not want to have sex with her and he lied to plaintiff about his whereabouts. After plaintiff discovered the fact that her husband was spending time at the apartment of defendant and confronted him with it, their marital relationship deteriorated and plaintiff\u2019s husband began to curse and abuse her. Plaintiff stated that her husband said \u201cYou goddamn bitch, I wish you would die and rot in hell. I need Sara. She is kind to me. She had a soft voice. Your voice is not soft.\u201d At another time her husband said, \u201cLiving with you is too painful to me. I need Sara. I cannot stand living with you any longer. I am going to leave.\u201d\nFinally plaintiff offered evidence tending to show that defendant\u2019s conduct was the controlling and effective cause of the separation of plaintiff and her husband. Although plaintiff may have been rather argumentative, overbearing and domineering of conversation while her husband was a quiet, patient mild mannered man, for thirty years, until the relationship with defendant, plaintiff and her husband managed to have an affectionate marital union. Plaintiff\u2019s evidence tends to show that defendant, despite plaintiff\u2019s protests, continued to see plaintiffs husband on a regular, frequent basis from the time plaintiff discovered her husband\u2019s presence at defendant\u2019s apartment in April, 1970 until plaintiff\u2019s husband left in January, 1972. These visitations culminated in the ultimate separation of plaintiff and her husband. After observing her husband\u2019s car parked in defendant\u2019s driveway, plaintiff drove her husband\u2019s car home. When plaintiff\u2019s husband returned home, he assaulted plaintiff. Thereafter, when plaintiff refused to drop the assault charges against her husband, her husband moved out on the day of the trial.\nDefendant asserts that there were no instances in which she contacted plaintiff\u2019s husband and that all of the contact between the parties was initiated by plaintiff\u2019s husband. This, however, is no defense in the present case. The wrongful conduct of defendant in allowing plaintiff\u2019s husband unlimited access to her residence with knowledge of the marital discord which these visitations produced and in reckless disregard of plaintiff\u2019s marital rights is sufficient to establish the tort.\nOn the issue of compensatory damages, defendant contends that there is no evidence of loss of support caused by the defendant or of the value of such loss of support. \u201cIn a cause of action for alienation of affections of the husband from the wife, the measure of damages is the present value in money of the support, consortium, and other legally protected marital interests lost by her through the defendant\u2019s wrong. In addition, thereto, she may also recover for the wrong and injury done to her health, feelings, or reputation.\u201d (Citations omitted.) Sebastian v. Kluttz, 6 N.C. App. 201, 219, 170 S.E. 2d 104, 115 (1969). Hence, loss of support is only one element of damages in a cause of action for alienation of affection. The burden of proof is on plaintiff to show by direct or circumstantial evidence a loss of support as an element of the damages sustained. Id. at 214, 170 S.E. 2d at 112. Plaintiff has carried her burden in showing a definite pecuniary loss of income, life and health insurance, stock benefits and pension benefits which she has suffered as a result of the tort.\nThere is ample evidence, when viewed in the light most favorable to the plaintiff on each element of the cause of action for alienation of affections and on compensatory damages to overcome defendant\u2019s motion for a directed verdict at the close of plaintiff\u2019s evidence.\nDefendant has not brought forward her second and third assignments of error in her brief and they are deemed abandoned pursuant to Rule 28(a), N.C. Rules App. Proc.\nDefendant by her fourth assignment of error contends that the court erred in not allowing or not ruling upon defendant\u2019s motion for judgment n.o.v. and alternative request for a new trial pursuant to Rule 50(b). Defendant moved under Rule 50(b) for judgment notwithstanding the verdict and in the alternative for a new trial and under Rule 59(a)(6) and (7) for a new trial. The judgment of the court does not rule upon defendant\u2019s request for a new trial as required by Hoots v. Calaway, 282 N.C. 477, 193 S.E. 2d 709 (1973). Defendant, however, does not properly raise the question of the failure of the trial court to rule on a new trial in her assignment of error and the exception upon which it is based. Defendant\u2019s exception No. 5 and assignment of error No. 4 are addressed only to the denial of defendant\u2019s motion for judgment notwithstanding the verdict as to actual damages. Therefore, pursuant to Rule 10(a), N.C. Rules App. Proc., the scope of review on appeal is limited to the question of whether the court erred in denying defendant\u2019s motion for judgment notwithstanding the verdict as to actual damages. The same test is to be applied on a motion for judgment notwithstanding the verdict as is applied on a motion for a directed verdict. Snellings v. Roberts, 12 N.C. App. 476, 183 S.E. 2d 872, cert. denied 279 N.C. 727, 184 S.E. 2d 886 (1971). For the reasons stated above we are of the opinion plaintiff\u2019s evidence was sufficient for submission to the jury and that the court correctly denied defendant\u2019s motion.\nPlaintiff, having abandoned her first and second cross assignments of error, contends by her third cross assignment of error that the court erred in granting defendant\u2019s motion to set aside the verdict as to punitive damages. Punitive damages may be awarded in an action of alienation of affections. The plaintiff may also have awarded by the jury, in their sound discretion, a reasonable sum as punitive damages for the wilful, wanton, aggravated or malicious conduct of defendant towards her. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E. 2d 104 (1969). It is incumbent on the plaintiff to show circumstances of aggravation in addition to the malice implied by law from the conduct of defendant in causing the separation of plaintiff and her husband which was necessary to sustain a recovery of compensatory damages. Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769 (1920). In the present case, the wrongful conduct of defendant in permitting plaintiff\u2019s husband to visit her at her residence with knowledge of the marital discord which these visitations produced and over plaintiff\u2019s protests was sufficient to establish the tort. However, we are of the opinion that plaintiff has not shown such circumstances of aggravation in addition to the above conduct of defendant to justify the submission of the punitive damage issue to the jury. The error in submitting this issue to the jury was cured when the trial judge set the verdict aside.\nAs noted above, the judgment of Judge Washington failed to rule on defendant\u2019s motion for a new trial. This error is harmless as plaintiff is not entitled to a new trial on the issue of punitive damages.\nAffirmed.\nJudges CLARK and ERWIN concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Nelson & Boyles, by Laurel O. Boyles, for the plaintiff.",
      "Badgett, Calaway, Phillips, Davis & Montaquila by Susan Rothrock Montaquila and Richard G. Badgett for the defendant."
    ],
    "corrections": "",
    "head_matter": "KATHRYN G. HEIST v. SARA W. FAIRCLOTH HEIST\nNo. 7921SC896\n(Filed 6 May 1980)\n1. Rules of Civil Procedure \u00a7 50\u2014 motion for directed verdict \u2014statement of grounds mandatory\nAlthough the provision in G.S. 1A-1, Rule 50(a) that a motion for a directed verdict shall state the specific grounds therefor is mandatory, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties.\n2. Husband and Wife \u00a7 24\u2014 alienation of affections \u2014 no sexual misconduct \u2014requirement of malice\nIn an action for alienation of affections where there is no element of sexual defilement of plaintiffs husband, malice must be shown, and malice in such an action means unjustifiable conduct causing the injury complained of.\n3. Husband and Wife \u00a7 25\u2014 alienation of affections \u2014sufficiency of evidence\nIn an action for alienation of affections evidence was sufficient to be submitted to the jury where it tended to show that plaintiff and her husband had a loving and affectionate relationship for thirty years; such love and affection was destroyed after plaintiff\u2019s husband began seeing defendant; when plaintiff confronted her husband about his relationship with defendant, he abused her and cursed her; defendant, despite plaintiff\u2019s protests, continued to see plaintiff\u2019s husband on a regular, frequent basis; and defendant\u2019s conduct in allowing plaintiff\u2019s husband unlimited access to her residence with knowledge of the marital discord which these visitations produced and in reckless disregard of plaintiff\u2019s marital rights was sufficient to establish the tort.\n4. Husband and Wife \u00a7 26\u2014 alienation of affections \u2014 measure of damages\nIn an 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 defendant\u2019s wrong.\n5. Husband and Wife \u00a7 26\u2014 alienation of affections \u2014 punitive damages \u2014 showing required\nIn order for plaintiff to recover punitive damages in an action for alienation of affections, she must show circumstances of aggravation in addition to the malice implied by law from the conduct of defendant in causing the separation of plaintiff and her husband which was necessary to sustain a recovery of compensatory damages.\nAppeal by defendant and plaintiff from Washington, Judge. Judgment entered 26 June 1979 in Superior Court, FORSYTH County. Heard in the Court of Appeals 21 March 1980.\nOn 18 October 1974 plaintiff filed an action for alienation of affections against defendant seeking actual and punitive damages. Defendant filed her responsive pleadings on 20 December 1974 which contained a general denial and counterclaim for defamation of character. A jury trial was held during the 21 May 1979 civil session of Forsyth County Superior Court. At the close of plaintiff\u2019s evidence and at the close of all the evidence, defendant\u2019s motions for a directed verdict were denied.\nUpon deliberation, the jury determined that the defendant alienated the affections of plaintiff\u2019s husband and awarded plaintiff actual damages of $25,000.00 and punitive damages of $25,000.00. The jury rendered a verdict against the defendant on her counterclaim for defamation of character.\nAfter return of the jury\u2019s verdict, the defendant filed a \u201cmotion for judgment notwithstanding the verdict\u201d pursuant to Rule 50(b). Defendant also filed a motion for a new trial pursuant to Rule 59, although the motion was denominated a \u201cmotion to set aside the verdict.\u201d\nOn 26 June 1979 the trial court entered a judgment in which it ordered that the verdict for punitive damages be set aside and the award for actual damages be allowed to stand. Plaintiff and defendant appealed.\nNelson & Boyles, by Laurel O. Boyles, for the plaintiff.\nBadgett, Calaway, Phillips, Davis & Montaquila by Susan Rothrock Montaquila and Richard G. Badgett for the defendant."
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