Legal Writing I: Memorandum

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Memo II Final Draft

Legal Writing I, Section 99.2

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TO: ProfessorFROM: StudentDATE: Tuesday, November 29, 2011RE: 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

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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 toa cause of action for alienation of affection .. . that occurs after the plaintiff and theplaintiff's spouse physically separate with theintent of either the plaintiff or plaintiff'sspouse that the physical separation remainpermanent.

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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 marriedand that genuine love and affection existedbetween them, (2) that this love andaffection were alienated and destroyed, and(3) that wrongful and malicious acts ofdefendant produced and brought about lossand 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-

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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 . . . .

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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

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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

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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

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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

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