Upload
agreen89
View
213
Download
0
Embed Size (px)
Citation preview
7/23/2019 Legal Writing I: Memorandum
1/10
Memo II Final Draft
Legal Writing I, Section 99.2
7/23/2019 Legal Writing I: Memorandum
2/10
2
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
7/23/2019 Legal Writing I: Memorandum
3/10
3
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.
7/23/2019 Legal Writing I: Memorandum
4/10
4
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-
7/23/2019 Legal Writing I: Memorandum
5/10
5
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 . . . .
7/23/2019 Legal Writing I: Memorandum
6/10
6
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
7/23/2019 Legal Writing I: Memorandum
7/10
7
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
7/23/2019 Legal Writing I: Memorandum
8/10
8
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
7/23/2019 Legal Writing I: Memorandum
9/10
9
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
7/23/2019 Legal Writing I: Memorandum
10/10