Memo II Final Draft

Legal Writing I, Section 99.2

 TO: Professor FROM: Student DATE: Tuesday, November 29, 2011 RE: Hunter Matter QUESTION PRESENTED I. The issue herein is whether or not, if a complaint is filed

against Rebecca Hunter for alienation of affections, her motion for summary judgment will be granted because Ms. Hunter engaged in an online relationship with Mr. Edwards following his separation from his wife. BRIEF ANSWER I. Probably. There is conflicting testimony from the Edwards

as to whether or not they were happily married when Hunter became involved in a relationship with Mr. Edwards. This raises a genuine issue of material fact, sufficient grounds to grant a motion for summary judgment. Further, because they were not happily married and their marriage was reduced to permanent separation, Ms. Hunters subsequent relationship with Mr. Edwards cannot be considered wrongful and malicious. STATEMENT OF FACTS Our client, documentarian Rebecca Hunter, anticipates having a complaint filed against her for alienation of affections. During Summer 2008, Hunter met Mr. Edwards, a source for a documentary that she was working on in North Carolina. He toured Ms. Hunter around several textile mills and educated her about the industry. Later, she got in touch with him online

 about a contact he had given to her. In August 2008, he and his wife completed a separation agreement. He moved out of their home. In December 2008, Mr. Edwards attempted to reconcile with his wife and suggested that they attend counseling together, but she refused. In Spring 2009, Mr. Edwards began chatting online with Ms. Hunter, and seemed dissatisfied with his marriage and resentful towards his wife. He expressed loneliness and Ms. Hunter introduced him to an online dating game after in which their avatars engaged in a marriage relationship that was also sexual and their conversations then became sexual. Mrs. Edwards learned of these online conversations during the summer of 2009. In August 2009, the Edwards divorce was finalized. One week later, Mr. Edwards and Ms. Hunter began a physical relationship. On September 24, 2009, Mrs. Edwards sent a letter to Ms. Hunter describing her marriage and blaming Ms. Hunter for its dissolution. She explained that they were comfortable with being predictable. She explained that they were happy and, though their marriage may not have been the sappy, romantic kind of marriage you see in the movies, it was founded on their being best friends. APPLICABLE STATUTE (a) No act of the defendant shall give rise to a cause of action for alienation of affection . . . that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent.

 N.C. Gen. Stat. Ann. 52-13(a) (West 2009) DISCUSSION In order for Mrs. Edwards to bring a cause of action for alienation of affection, she must show (1) that [the couple] were happily married and that genuine love and affection existed between them, (2) that this love and affection were alienated and destroyed, and (3) that wrongful and malicious acts of defendant produced and brought about loss and alienation of such love and affection. Litchfield v. Cox, 266 N.C. 622, 623 (1966). For the purposes herein, the discussion will analyze whether the Edwards were happily married and whether Ms. Hunters acts were wrongful and malicious. For the court to grant a motion for summary judgment, the moving party must show, by way of evidence viewed in the light most favorable to the non-moving party, that there exists no genuine issue of material fact and he is thereby entitled to judgment as a matter of law. Coachman v. Gould, 122 N.C.App. 443, 446 (1996). North Carolina statutory law outlines that a physical separation between a married couple, intended to be permanent, eliminates defendants liability for any post-separation conduct that could have caused the alienation of affections. N.C. Gen. Stat. Ann 52-13(a) (West 2009). Physical separation illustrates a lack of the love and affection necessary to show that there was a happy marriage and that defendants pre-

 separation conduct caused the alienation. However, this statute was not enacted until October 2009, two months after the finalization of the Edwards divorce in August 2009, and therefore does not apply herein. I. Genuine Love And Affection There is a genuine issue of material fact regarding the happiness of the Edwards marriage and their genuine love and affection prior to Ms. Hunters involvement because although Mrs. Edwards testified that their marriage was good, Mr. Edwards was unsatisfied with the marriage and they eventually separated. To assess the state of a marriage, courts look to the quantity and quality of a married couples time spent together. Hutelmyer v. Cox, 133 N.C.App. 364 (1999). A happy and loving marriage is determined by what kinds of activities a couple does together, their relationship with their children, and their sexual relationship. In Hutelmyer v. Cox, Mrs. Hutelmyer, the plaintiff, described her marriage as a fairy tale marriage-one that was loving, warm, and devoted. 133 N.C.App. at 366. The marriage included family vacations, business trips, and involvement in church and community organizations. Id. Further, Mr. Hutelmyer would often write romantic poetry for his wife and they maintained an active sexual relationship. Id. at 366-67. Later, Mr. Hutelmyer conceded that things must have been going pretty well . . . .

 Id. at 366. These activities showed that they did have a marriage that was happy and loving. Where plaintiff and spouse differ in opinion about their marriage, a genuine issue of material fact exists. In the Edwards marriage, they were comfortable with being predictable. Mrs. Edwards explained that they were happy and, though their marriage may not have been the sappy, romantic kind of marriage you see in the movies, it was founded on their being best friends. However, Hunter claims that Mr. Edwards seemed to resent his wife, that they stayed at home all the time, and that their lives were all about their kids. He did not find his marriage to be very fulfilling and thought his life was dull. Mr. Edwards gave the appearance that the relationship with their children was mediocre and that the separation was mutual because neither of them was happy. In Hutelmyer, plaintiff provided clear evidence that plaintiff and spouse were happily married with genuine love and affection. Litchfield, 266 N.C. at 623. Unlike the Edwards, the Hutelmyers agreed that they had a good marriage. Because of differing testimonies, the evidence points to a genuine issue of material fact as to whether or not the Edwards were happily married and genuine love and affection existed between them. Beyond the kind of time spent together, courts have assessed marriages by a couples desire to work through conflict

 and remain together. In McCutchen v. McCutchen, following the couples initial separation in September 1998, plaintiffs husband expressed a desire to return to the marriage multiple times between October 1999 and September 2000. 360 N.C. 280, 286 (2006). After the couples separation, they also purchased a car together and maintained joint finances. Id. From July 1998 to February 2001, they participated in marriage counseling and plaintiffs husband told her he was not heading toward divorce. Id. Up until the point at which he finally filed for divorce, she had reason to believe that they would reconcile. Id. Consequently, there was a genuine issue of material fact as to whether they were happily married following their separation. Conversely, physical separation without an attempted reconciliation can show intent to remain separated permanently. In Hunters case, the Edwards separated with the intent that it remain permanent because Mr. Edwards had moved out of the house after having already tried to reconcile with Mrs. Edwards. As in McCutchen, he suggested that the couple attend counseling together, but she refused. Further, they formalized the separation with a separation agreement. Because of Mrs. Edwards unwillingness to reconcile and their completion of a separation agreement, their separation was intended to be permanent and their marriage was therefore not happy when they separated. II. Wrongful and Malicious Conduct

 The acts of Ms. Hunter were not wrongful and malicious because her interaction with Mr. Edwards was strictly professional prior to the Edwards separation. Defendants acts are wrongful and malicious if they cause the alienation of the love and affection between plaintiff and spouse. Litchfield, 266 N.C. at 622. Conversation between defendant and plaintiffs spouse does not itself signify wrongful or malicious conduct. In Coachman v. Gould, plaintiff acknowledged that his wife had an ongoing business relationship with the defendant, who therefore had a valid, inoffensive reason for calling the Coachman home. 122 N.C.App. at 448. Despite the length and frequency of the conversations, there was no indication that they were marked by salacious whisperings, plans for clandestine meetings, or any other intonation of improper conduct by defendant. Id. Even if the defendant had no legitimate reason to call plaintiffs wife, the calls, in and of themselves, [did] not rise to the level of maliciousness necessary to satisfy the element. Id. at 449. A motion for summary judgment was granted for the defendant. As in Coachman, Hunter had a strictly professional relationship with Mr. Edwards, an appropriate reason for contact, and their physical relationship consisted of touring textile mills. Though Hunter later got in touch with Mr. Edwards online about a contact, they did not begin to chat online until

 after the Edwards separation and their contact was only businesslike before Spring 2009. Therefore, because the relationship was strictly professional prior to the Edwards permanent separation, it did not include wrongful or malicious conduct. Though talking alone is not enough, defendants conduct becomes wrongful and malicious by spending a significant amount of intimate time with plaintiffs spouse. In Hutelmyer, defendant openly flirted with plaintiffs husband and spent increasingly more time alone with him. 133 N.C.App. at 370. This included dining together, working late hours together, arriving at work together, and traveling together on business. Id. Plaintiffs husband began to spend nights at defendants home and was welcomed in at all hours of the day and night. Defendants conduct created sufficient additional circumstances of aggravation, rendering defendant liable for alienation of affections. Id. at 372. While suggestive conversation may point to some wrongful or malicious conduct on the part of the defendant, the existence of a physical relationship is essential. Whereas defendant in Hutelmyer spent significant intimate time with plaintiffs husband, the only intimate contact between Ms. Hunter and Mr. Edwards took place online. Moreover, this contact took place after the Edwards formal separation. Mr. Edwards informed

 Hunter of the separation and explained that he was lonely and missed the intimacy of marriage. After encouraging reconciliation, Hunter then introduced him to an online dating game in which they played as a married couple. Although the conversations became more suggestive, they did not engage

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physically before the Edwards divorce. Here, though the conduct was intimate, it was not as overt and physical as in Hutelmyer. Also, the Edwards relationship had already ended when the conduct began. It could not be wrongful or malicious because it was not responsible for the alienation of affections. CONCLUSION Probably. A motion for summary judgment in a complaint for alienation of affection requires a genuine issue of material fact. Herein, though Mrs. Edwards felt they had a happy marriage, Mr. Edwards was dissatisfied. Because of differing testimonies about the state of their marriage, the evidence points to opposite conclusions about whether they were happily married and genuine love and affection existed between them at the point when Ms. Hunter began an online relationship with Mr. Edwards. Further, Mrs. Edwards had chosen to formalize the separation from her husband and was unwilling to try and reconcile their marriage. Ms. Hunters conduct therefore cannot be deemed wrongful or malicious because her involvement with Mr. Edwards was strictly professional until his relationship with his wife had ended.