An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1014
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


CAROL MONSOUR PURYEAR,
     Plaintiff-Appellee,

      v.                                      Wake County
                                              No. 09 CVS 825
BETTY CARLTON PURYEAR (formerly
BEVERLY CARLTON DEVIN),
     Defendant-Appellant.


      Appeal by Defendant from judgment entered 15 May 2013 by

Judge Carl R. Fox in Superior Court, Wake County.                   Heard in the

Court of Appeals 18 February 2014.


      Gailor Hunt Jenkins Davis & Taylor, P.L.L.C., by Stephanie
      T. Jenkins, Jaime H. Davis, and Carrie B. Tortora, for
      Plaintiff-Appellee.

      Woodruff Law Firm, PA, by Carolyn J. Woodruff and Jessica
      S. Bullock, for Defendant-Appellant.


      McGEE, Judge.


      Carol    Monsour     Puryear     (“Plaintiff”)      and    Donald    Puryear

(“Mr. Puryear”) were married on 23 January 1994 and divorced on

23 January 2009.        Mr. Puryear had been engaged to Betty Carlton

Puryear (formerly Beverly Carleton Devin) (“Defendant”) when the

two were in their twenties, but this engagement was broken and
                                    -2-
Mr. Puryear and Defendant did not remain in contact with each

other.     Mr. Puryear’s father died and a funeral was held for him

on 17 July 2007.      Defendant attended the funeral, talked with

Mr. Puryear, and gave him her telephone number.                   At some point

not long after 17 July 2007, Mr. Puryear called Defendant, and

they eventually began an affair.               According to Plaintiff: “It

was within a month of [Mr. Puryear’s father’s] passing that my

husband had the affair and we parted ways.”                 Plaintiff and Mr.

Puryear separated in early November 2007 and were divorced on 23

January 2009.

       Plaintiff filed her “Complaint for Alienation of Affections

and    Criminal   Conversation”    on     13    January    2009.         Defendant

answered    Plaintiff’s     complaint   on     7   May    2009,    and   included

counterclaims and a motion to dismiss.              At the time, Defendant

was represented by Jerry W. Leonard (“Mr. Leonard”).                     Discovery

began, and Plaintiff filed a motion to compel on 4 September

2009.    Plaintiff alleged that Defendant had failed to produce

responses to proper discovery requests, and requested that the

trial court order Defendant to comply, and to pay attorney’s

fees    associated   with    Defendant’s       non-compliance.           By   order

entered 9 February 2010, nunc pro tunc 26 January 2010, the

trial court ordered Defendant to comply with certain discovery

requests, and further ordered that Defendant pay $1,625.00 in
                                       -3-
attorney’s fees.        Mr. Leonard filed a motion on 23 February 2010

to   withdraw     as   Defendant’s    counsel.      Mr.   Leonard      recited   the

following reasons in his motion:

            As of the last 60 days, Counsel has not been
            able to communicate with the Defendant in
            any manner except on January 26, 2010, when
            Defendant indicated she would make efforts
            to comply with the advice of Counsel and the
            Orders of this Court.      Despite repeated
            efforts to contact Defendant since that
            date, Defendant has refused to communicate
            with her Counsel regarding important matters
            before this Court.

            3. On February 22, 2010, Counsel spoke to
            one of Defendant's family member[s], who
            informed   Counsel    that   Defendant    had
            indicated   that  she   was   not  going   to
            participate in the defense of this action
            and the prosecution of her counter claims.

Mr. Leonard moved to withdraw Defendant’s answer, counterclaims,

and motion to dismiss on 18 March 2010.                      Plaintiff filed a

motion to dispense with a mediated settlement conference, motion

for contempt, and motion for sanctions requiring Defendant to

provide    discovery      and   pay   attorney’s     fees    on   9    April    2010,

alleging Defendant had failed to comply with the prior order, or

to otherwise participate in the lawsuit in any meaningful way.

Plaintiff’s      motion    to   dispense     with   the     mediated    settlement

conference was granted by order entered 9 April 2010, in part

because    of    Defendant’s    “unwillingness       to   participate      in    this

case[.]”        A hearing was conducted on 19 April 2010 to address
                                          -4-
Plaintiff’s     motions       for    contempt         and    sanctions,           and     Mr.

Leonard’s    motion     to   withdraw.          Mr.   Leonard         appeared      at    the

hearing and agreed that, because Defendant had withdrawn her

answer and her counterclaims, entry of default was appropriate

and   the   matter     should   go   forward      solely         on    the    question    of

damages.     Mr. Leonard also agreed that Plaintiff should receive

attorney’s fees for the extra work Plaintiff’s attorneys had

performed in attempting to obtain discovery from Defendant.                               At

the end of that hearing, the trial court stated it would allow

Mr. Leonard’s motion to withdraw, and grant Plaintiff’s motions

for contempt and sanctions in the form of a $1,900.00 award for

attorney’s fees.        The order allowing Mr. Leonard to withdraw as

Defendant’s counsel was entered on 23 April 2010, and the order

decreeing Defendant in civil contempt and ordering Defendant to

pay $1,900.00 in attorney’s fees was entered on 11 June 2010.

Order for entry of default was entered on 13 September 2010.

      Plaintiff filed a motion to show cause on 5 January 2011,

complaining     that    Defendant     had       failed      to    pay       the   $1,900.00

ordered by the trial court.           The trial court entered an order to

appear and show cause on 6 January 2011, and ordered Defendant

to appear on 31 January 2011 and “show cause, if any, why the

[c]ourt     should   not     enter   an   order       holding         you    in   civil   or

criminal contempt.” That order further instructed Defendant that
                                         -5-
her “failure to appear as ordered may result in the issuance of

an Order for Arrest.”        The hearing was conducted on 31 January

2011,   but    Defendant    did    not    appear    and     had    no   attorney    of

record.      At that hearing, Plaintiff’s attorney explained,

              we have the show cause order and she was not
              here, Judge Fox said that, you know, he was
              tired of her essentially thumbing her nose
              at the Court, and that if she didn't show up
              for this hearing, that he was going to issue
              an order for her arrest.

Defendant does not include in the record a transcript of the

hearing that resulted in the entry of the 6 January 2011 show

cause order.       Defendant apparently had sent a check in the

amount of $1,900.00 to the clerk’s office approximately two

weeks earlier, with no additional correspondence.                       The clerk’s

office had apparently informed Defendant that                      she was still

required to attend the hearing.                The trial court entered an

order on 2 March 2011 finding Defendant in contempt for “her

failure to comply with the Court’s Order to Show Cause.”                           The

trial   court    also   ordered    that    the     matter    was    “reserved      for

further Orders of this Court, including [Plaintiff’s] attorney

fees    in    prosecuting   this     Contempt       Order.”        Following       the

hearing, on 17 February 2011, but before the entry of the 2

March 2011 order, attorney Mary Gurganus (“Ms. Gurganus”) filed

notice of limited appearance “as counsel of record for Defendant

. . . in her Order to Show Cause regarding Payment of Attorney’s
                                         -6-
Fees.”

       A    bench   trial    on   damages      was   held    on    14    March       2011.

Plaintiff testified and was represented by counsel.                           The trial

court made an unchallenged finding of fact that Defendant “came

to    the   Wake    County   Courthouse        on    the   day    of    the    [damages

trial,]” but

              refused   to   appear  in   open   court  and
              represent herself. Instead, . . . Defendant
              had an attorney, Mary Gurganus, inquire as
              to whether she would be held in contempt for
              failing to appear at this hearing.       Upon
              learning    that   she    could   waive   her
              appearance, . . . Defendant and Ms. Gurganus
              left the floor prior to this hearing.

The    trial    court   stated     the    following         at    the    end    of     the

proceeding:

              I'm offended that given this circumstance
              and given how much I stressed the importance
              of being here, that she was in this
              courthouse, in this courthouse, feet from
              that door and chose not to come and sit in
              that seat, and say absolutely nothing.

       Attorney Carolyn J. Woodruff filed a notice of appearance

on 25 March 2011, stating she was now Defendant’s attorney of

record.     Defendant   executed     an     affidavit,       which      was    filed    13

April 2011, in which she affirmed:

              11. I was present at the courthouse on the
              day of the trial with attorney, Mary
              Gurganus, who was acting informally on my
              behalf.

              12. I was told by Ms. Gurganus that there
                                        -7-
            was no point going into the courtroom as
            there was nothing I could do on my behalf.
            I choose [sic] to follow Ms. Gurganus’ legal
            advice and leave the courthouse.

            13. I was also under pressure from                     [Mr.
            Puryear] not to defend this action.

    The    trial    court     entered    its    judgment      on   15     May   2013,

awarding compensatory damages in the amount of $10,000,000.00

and punitive damages in the amount of $20,000,000.00.                     Defendant

appeals.

                                        I.

    Defendant’s          first,   second,     fourth,   and    fifth      arguments

involve constitutional questions that were not raised at the

trial level.      Because Defendant failed to raise these arguments

at trial and therefore obtained no ruling on these issues, they

have not been preserved for appellate review.                      N.C.R. App. P.

10(a)(1) (2014) (“In order to preserve an issue for appellate

review, a party must have presented to the trial court a timely

request, objection, or motion, stating the specific grounds for

the ruling the party desired the court to make if the specific

grounds    were    not     apparent   from     the   context.        It    is    also

necessary for the complaining party to obtain a ruling upon the

party's request, objection, or motion.”); In re Bullock, __ N.C.

App. __, __, 748 S.E.2d 27, 33, disc. review denied, __ N.C. __,
                                          -8-
752 S.E.2d 149 (2013).            Defendant’s first, second, fourth, and

fifth arguments are therefore dismissed.

                                          II.

    Defendant’s third argument also involves a constitutional

question not raised at trial, but because Defendant asserts the

trial court lacked subject matter jurisdiction, we address this

argument.       Defendant argues that “the laws of alienation of

affection and criminal conversation are unconstitutional” and

thus claims pursuant to these laws could not vest subject matter

jurisdiction in the trial court.                  In light of North Carolina

Supreme Court precedent, we disagree.

    This     Court     attempted     to   eliminate     causes   of   action     for

alienation      of    affection     and   criminal     conversation    in    1984,

reasoning    that     causes   of    action      originally    predicated    on   a

wife’s status as property of her husband no longer had a place

in North Carolina jurisprudence.                Cannon v. Miller, 71 N.C. App.

460, 322 S.E.2d 780 (1984) (“Cannon I”), vacated, 313 N.C. 324,

327 S.E.2d 888 (1985).            By 1985, nearly half of the states in

this country had abolished these “heart-balm” torts.                   Cannon I,

71 N.C. App. at 478, 322 S.E.2d at 793.                On appeal, however, our

Supreme Court did not address the merits of the analysis in

Cannon I.       It simply vacated Cannon I because the Court of

Appeals   had    no    authority     to   overturn     prior   opinions     of   our
                                               -9-
Supreme Court.         Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888

(1985) (“Cannon II”).

    In       the    intervening         period,      many        additional       states    have

abolished these heart-balm torts.                       It appears that today only

Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South

Dakota,      and     Utah    continue        to      have        these    laws     in    effect.

However,      in     most    of        these      states,         heart-balm       torts        are

frequently discouraged and rarely pursued.                               See Hunt v. Chang,

594 P.2d 118 (Haw. 1979) (last appellate opinion considering

alienation of affection in Hawaii and, though not abolishing the

cause   of    action,       not   favorably          disposed       thereto);          Murphy    v.

Colson,      999    N.E.2d     372     (Ill.      Ct.   App.       2013)     (discussion         of

legislation barring punitive, exemplary, vindictive, and certain

compensatory         damages      in     heart-balm          torts       after     legislation

abolishing         these    torts      was     found        to     violate       the    Illinois

Constitution); Germany v. Germany, 123 So. 3d 423 (Miss. 2013)

(most recent Mississippi alienation of affection opinion located

on Westlaw, though it appears this cause of action is still

relatively common in Mississippi); Padwa v. Hadley, 981 P.2d

1234, 1240 (N.M. Ct. App. 1999) (though alienation of affection

has not been formally abolished in New Mexico, it seems to be

infrequently utilized, and, when the appellate courts discuss

it, they do so with “disfavor”); Veeder v. Kennedy, 589 N.W.2d
                                      -10-
610, 616     (S.D.   1999) (Supreme Court of South                  Dakota holding

that,    despite     public    policy           arguments     advanced      for        its

abolition,    alienation      of    affection        in     South    Dakota      was    a

statutory, not a common            law,    cause of action;          therefore         the

Supreme Court was “compelled to leave the cause of action intact

and instead defer to the legislature's ability to decide if

there is a need for its elimination”); Norton v. Macfarlane, 818

P.2d 8     (Utah 1991) (abolishing tort of criminal conversation in

Utah);   Williams    v.   Jeffs,     57    P.3d    232    (Utah     Ct.   App.    2002)

(alienation of affection cause of action still viable in Utah).

      This Court held in Nunn v. Allen that “[n]either [a claim

for   alienation     of   affection       nor    criminal    conversation]        is    a

statutory creation; both emanate from the common law and have

been recognized by our Supreme Court.”                   Nunn v. Allen, 154 N.C.

App. 523, 530, 574 S.E.2d 35, 40 (2002) (citations omitted).

This Court has no authority to overrule decisions of the North

Carolina Supreme Court.

      In the present case, Defendant argues that the trial court

lacked subject matter jurisdiction “to enter judgment against

. . . Defendant because the laws of Alienation of Affection and

Criminal     Conversation      are        unconstitutional[.]”                However,

Defendant provides no citation to authority in support of this

proposition, and we can find none.                 The Third Circuit Court of
                                   -11-
Appeals has stated: “When disposing of a claim brought under an

unconstitutional statute, courts ordinarily deny the claim on

the merits, on the ground that the statute under which relief is

sought   is    unconstitutional,   rather      than   for    lack   of   subject

matter jurisdiction.”      Nesbit v. Gears Unlimited, Inc., 347 F.3d

72, 82 (3d Cir. 2003) (citations omitted).                  Our Supreme Court

has   acted    in   accordance   with   this    statement.          See,   e.g.,

Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 192,

581 S.E. 2d 415, 430-31 (2003).           Even if we were to hold that

“the laws of Alienation of Affection and Criminal Conversation

are unconstitutional,” which we are clearly without authority to

do, Cannon, 313 N.C. at 324, 327 S.E.2d at 888, we would be

exercising our jurisdiction to reach this conclusion.                    Because

this argument does not touch on the jurisdiction of this Court,

and because Defendant did not raise this argument at the trial

level, she has abandoned it.        N.C.R. App. P. 10(a)(1); Bullock,

__ N.C. App. at __, 748 S.E.2d at 33.

                                   III.

      In her final argument, Defendant contends the trial court

“erred in its present value calculation contained in paragraph

one of the decretal portion of the judgment[.]”              We disagree.

      Defendant cites Weaver v. Weaver, 72 N.C. App. 409, 324

S.E.2d   915    (1985),   disapproved     of    on    different     grounds   by
                                              -12-
Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988), for

the     proposition          that    a    reasonable           rate     of        comparison     in

calculating      present          value    could     be   obtained           by    reference     to

“Treasury       bill    rates[.]”           Id.    at     415,        324    S.E.2d      at    919.

Defendant then argues: “In this case, the [trial] court used the

Market T-Bill Rate of 1.66% as of May 1, 2013.” Br 28 This is

the     only    citation       to     authority         Defendant           includes     in    her

argument.       Although Defendant further argues that “[t]he trial

court    appears       to    be     present    valuing         only     one       year   of    lost

support” whereas the “purpose of these particular compensatory

damages is to replace the lost income that Plaintiff would have

received       had    she    remained      married        to    [Mr.        Puryear]     for    the

remainder of his life, which according to the mortality tables

is    twenty-five       years[,]”         Defendant       cites       to     no    authority     in

support of this contention.                   Defendant also cites no authority

and makes no argument indicating how the trial court should have

calculated present value in this instance.                             This Court does not

make arguments for a party.                 N.C.R. App. P. 28(b)(6); Goodson v.

P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358

(2005) (“It is not the duty of this Court to supplement an

appellant’s          brief     with       legal      authority         or         arguments     not

contained therein.”).               This argument is deemed abandoned.

       Dismissed.
                         -13-
Judges STEELMAN and ERVIN concur.

Report per Rule 30(e).
