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Vonfeldt v. Grapsy

United States District Court, M.D. North Carolina

February 14, 2017

THEODORE P. VONFELDT, Plaintiff,
v.
MARK A. GRAPSY, Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge.

         This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Defendant's Motion to Dismiss (Docket Entry 6; see also Docket Entry 7 (Brief in Support of Motion to Dismiss (“Defendant's Brief”)). (See Docket Entry dated Dec. 15, 2016.) For the reasons that follow, the Court should deny the instant Motion.[1]

         BACKGROUND

         Plaintiff's Complaint alleges claims of alienation of affection and criminal conversation and seeks an award of compensatory and punitive damages, as well as attorney fees. (See Docket Entry 3.) Under North Carolina common law, for an alienation of affection claim, “a plaintiff must prove (1) that [the plaintiff] and [his or her spouse] were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; and (3) that the wrongful and malicious acts of the defendant produced and brought about the loss and alienation of such love and affection.” McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623 (2006) (internal brackets and quotation marks omitted). For a criminal conversation claim, North Carolina's common law requires proof that “the plaintiff was lawfully married . . . and that during the existence of such marriage . . . the defendant [] had sexual intercourse with [the] plaintiff's [spouse] . . . .” Bryant v. Carrier, 214 N.C. 191, 194-95, 198 S.E. 619, 621 (1938). Effective October 1, 2009, North Carolina statutorily limited alienation of affection and criminal conversation claims from their full reach under the common law, by exempting from liability conduct that (although at a time when the plaintiff and the plaintiff's spouse remained married) “occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or [the] plaintiff's spouse that the physical separation remain permanent.” N.C. Gen. Stat. § 52-13(a).

         To support alienation of affection and criminal conversation claims in this case, the Complaint alleges:

         1) “Plaintiff and his wife . . . were lawfully married to each other on May 27, 1995” (Docket Entry 3 at 1) and they remained “happily married from the date of their marriage until on or before Sunday, April 26, 2015, when [] Defendant and Plaintiff's wife engaged in sexual intimacy” (id. (emphasis added); see also Id. (“[P]rior to Sunday, April 26, 2015, a genuine love and affection existed between Plaintiff and his wife.”));

         2) “on or before Sunday, April 26, 2015, and then following until [Plaintiff and his wife] separated on September 7, 2015, [] Defendant destroyed and alienated the love and affection existing between Plaintiff and his wife with multiple daily phone calls, visiting [] Plaintiff's wife, having sexual intercourse with Plaintiff's wife, arranging overnight business meetings with [] Plaintiff's wife, and purposely interfering with [] Plaintiff's marriage” (id. at 2 (emphasis added); see also id. (“Plaintiff and his wife separated on September 7, 2015, as a result of Defendant's wrongful and malicious conduct.”));

         3) “Plaintiff expressed to [] Defendant [Plaintiff's] outrage and disapproval of the continued sexual intercourse, contact, and meetings between Defendant and Plaintiff's wife” (id. (emphasis added); see also id. (“Defendant was well aware that Plaintiff and Plaintiff's wife were lawfully married at the time of Defendant's wrongful and malicious acts.”)); and

         4) “the love and affection that Plaintiff and his wife enjoyed was destroyed and alienated by the blatant refusal of Defendant to cease seeing, visiting, having sexual intercourse with, and communicating with Plaintiff's wife” (id. (emphasis added); see also id. (“Defendant's wrongful and malicious conduct is the cause of the alienation of the love and affection that once existed between Plaintiff and his wife.”)).

         DISCUSSION

         Defendant has “move[d] the Court to dismiss the criminal conversation, alienation of affections, and [related] attorney fees claims for relief filed against him and to invalidate the common law torts of criminal conversation and alienation of affections pursuant to [Federal] Rule [of Civil Procedure] 12(b)(1) and 12(b)(6) . . . .” (Docket Entry 6 at 1.)[2] More specifically, Defendant's instant Motion asserts that:

1) “[c]riminal conversation is unconstitutional both facially and as applied to the facts set out in [] Plaintiff's [C]omplaint as a violation of: due process liberty and privacy interests[ and] equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution” (id. (emphasis added)); and
2) “[a]lienation of [a]ffections is unconstitutional both facially and as applied to the facts set out in [] Plaintiff's [C]omplaint as a violation of due process liberty and privacy interests[ and] the equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution, [as well as] freedom of speech rights guaranteed by the First Amendment to the United States Constitution” (id. at 1-2 (emphasis added)).[3]

         Fourteenth Amendment Due Process

         Defendant's Fourteenth Amendment due process challenge to North Carolina's torts of alienation of affection and criminal conversation relies on Lawrence v. Texas, 539 U.S. 558 (2003). (See Docket Entry 7 at 3-13.) In that case, the United States Supreme Court reversed the convictions of two men for violating a Texas statute that criminalized homosexual conduct, concluding that “[t]heir right to liberty under the Due Process Clause gives them the full right to engage in their conduct [i.e., sexual practices common to a homosexual lifestyle] without intervention of the government.” Lawrence, 539 U.S. at 578. According to Defendant, “[t]he present case is controlled by Lawrence in that the State is regulating the personal lives of two consenting adults [i.e., Defendant and Plaintiff's spouse] by permitting private rights of action [by Plaintiff] to impose punishment in the form of monetary liability and a civil fine in the form of punitive damages.” (Docket Entry 7 at 5; see also id. at 7 (“The intimate conduct between Defendant [] and [Plaintiff's spouse] falls within the fundamental right of privacy and autonomy protected by the U.S. Constitution as held in L ...


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