Alienation of affection law upheld in Forsyth County caseBy Michael Hewlett Winston-Salem Journal Sep 6, 2017
The N.C. Court of Appeals upheld Tuesday the constitutionality of a state law allowing people to sue their spouse’s lover and collect damages in a case involving a doctor and nurse at Wake Forest Baptist Medical Center.
North Carolina is one of six states that have what are known as alienation of affection laws, which allow people to sue their spouse’s lover if they can prove that the defendant caused the couple’s marriage to fall apart. The state also has a law on “criminal conversation,” the legal term for extramarital sex.
According to court papers, this is the first time the N.C. Court of Appeals has ruled on the constitutionality of alienation of affection. The appeal comes out of a civil case in which Marc Malecek sued Dr. Derek Williams, who worked at Wake Forest Baptist Medical Center, over allegations of an affair between Williams and Malecek’s wife, Amber Malecek, who worked as a nurse at the hospital, according to court papers.
The lawsuit says the couple engaged in sexual acts at the hospital.
Mac Ingraham, a spokesman for Wake Forest Baptist, said the case is a matter between private citizens.
In 2014, Judge John O. Craig of Forsyth Superior Court became the first judge to directly rule against the constitutionality of alienation of affection and criminal conversation laws. The case was not appealed.
Veronica Filipowski, wife of Silk Road Equity investment firm owner Andrew “Flip” Filipowski, sued Melissa Oliver under the alienation of affection law. Oliver challenged the law on constitutional grounds in state and federal court. The N.C. Court of Appeals ruled against Oliver on technical legal grounds and never considered her constitutional arguments. The case was eventually settled in state court.
In the most recent case, Williams sought to have the lawsuit dismissed, saying that alienation of affection and criminal conversation laws are unconstitutional. Judge Todd Burke of Forsyth Superior Court granted the motion and Malecek appealed Burke’s ruling to the N.C. Court of Appeals.
“These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side,” the court said.
But the court ruled that claims for alienation of affection and criminal conversation “are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments.”
“Our holding is neither an endorsement nor a critique of these ‘heart balm’ torts,” the court said. “Whether this Court believes these torts are good or bad policy is irrelevant; we cannot hold a law facially unconstitutional because it is bad policy. We instead ask whether there are any applications of these laws that survive scrutiny under the appropriate constitutional standards.”
In a statement, Kim Bonuomo, one of the attorneys for Williams, said the “Court’s decision leaves intact the antiquated torts.” She, Joslin Davis and Bennett Rainey represented Williams.
“Defendant’s counsel contended that the causes of actions arose from a now archaic view of marriage which relied on a spouse’s purported ‘property right’ in the other spouse,” she said. “Counsel for the Defendant further asserted these torts do not preserve marriage or protect families and do not promote the reconciliation of broken marriages.”
The case was sent back to Forsyth Superior Court for further proceedings. Williams could file an appeal to the N.C. Supreme Court.
Most alienation of affection lawsuits, Bonuomo said, are filed after the marriage is over and the litigation over personal and private matters is used as blackmail.
She had no further comment.
J. Scott Smith, attorney for Marc Malecek, said his client is satisfied with the appeals court decision.
“I believe that the decision was entirely in accordance with the longstanding law and public policy of North Carolina,” he said in an emailed statement Tuesday.
Smith said he could not comment further until all potential proceedings have been completed.
Williams had argued in court papers that the laws were unconstitutional under the First Amendment and under the due process clause of the 14th Amendment. The court ruled that marriage is a commitment and that most marriages hinge on a promise of fidelity, unless the marriage is an open one. If a spouse breaks a promise of fidelity, that results in both personal injury and societal injury “because a broken marriage can mean the loss of all the benefits that a healthy marriage brings to society.”
“Simply put, the State has a legitimate interest (indeed, a substantial interest) in protecting the institution of marriage, ensuring that married couples honor their vows, and deterring conduct that would cause injury to one of the spouses,” the court said.
The court said that even when the laws might burden free speech and expression, it does not mean they must be struck down because the “State seeks to deter and remedy the harmful effects that result from acts that cause people to break their marriage vows, inflict personal injury on others, and damage the institution of marriage.”
The court ruled that courts will need to “grapple with the reality that these common law torts burden constitutional rights and likely have unconstitutional applications.”
http://www.journalnow.com/news/local/alienation-of-affection-law-upheld-in-forsyth-county-case/article_39954488-60c1-5692-ba62-8fd93c71ea2b.html
