              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1285

                               Filed: 16 January 2018

Catawba County, No. 15-CVS-792

BRENDA LEMUS RODRIGUEZ, Plaintiff,

             v.

LILIANA SILVERIO LEMUS, Defendant.


      Appeal by Defendant from judgment entered 25 July 2016 by Judge Timothy

S. Kincaid in Catawba County Superior Court following trial without a jury. Heard

in the Court of Appeals 15 May 2017.


      No brief filed on behalf of Plaintiff-Appellee.

      Wesley E. Starnes for Defendant-Appellant.


      INMAN, Judge.


      We hold that the evidence presented below, while circumstantial, was

sufficient to support the trial court’s findings and conclusions supporting a judgment

for alienation of affection and criminal conversation. We further hold that although

these torts impose liability only for conduct occurring before a married couple has

separated, evidence of post-separation conduct is competent to support findings of

pre-separation conduct.

      Liliana Silverio Lemus (“Defendant”) appeals from a final judgment awarding

Brenda Lemus Rodriguez (“Plaintiff”) $65,000 for criminal conversation and
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alienation of affection claims against Defendant. Defendant argues that the trial

court erred in finding that Defendant engaged in sexual conduct with Andres Jimenez

(“Jimenez”)—Plaintiff’s husband—during Plaintiff and Jimenez’s marriage and

before Plaintiff and Jimenez separated. After careful review, we affirm.

                           Factual and Procedural Background

      Plaintiff filed a complaint on 30 March 2015 asserting claims against

Defendant pursuant to N.C. Gen. Stat. § 52-13 for criminal conversation and

alienation of affection.

      The evidence at trial tended to show the following:

      Plaintiff and Jimenez were married 27 December 2007. Defendant, a family

friend, attended the couple’s wedding and often spent time with them. In December

2011, Plaintiff began to notice her marital relationship change. Due to her suspicions,

Plaintiff checked Jimenez’s phone records and discovered that he and Defendant were

in regular contact through phone calls and text messages, including 120 contacts in

a one-month period in early 2012.Plaintiff confronted Jimenez and Defendant about

their increased communications, but both denied any wrongdoing.

      In addition to checking Jimenez’s phone records, Plaintiff also found a credit

card bill for Jimenez reflecting charges for stays at two different hotels on 30 and 31

January 2012, weekdays when Jimenez was supposed to be at work. Plaintiff also

learned on 21 March 2012 that Jimenez was staying at one of the two hotels. She



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called the hotel, was told that her husband had been there with an unidentified

woman, and obtained a copy of the bill from the hotel for that stay.

       On 8 April 2012, Jimenez told Plaintiff their relationship was over and moved

out of the marital home. On 26 April 2012, Plaintiff gave birth to her and Jimenez’s

first child.   Plaintiff and Jimenez discussed reconciliation in January 2013, but

Jimenez refused to return to the relationship. Jimenez eventually began living with

Defendant, who gave birth to a child in October 2013. Plaintiff and Jimenez finalized

their divorce in September 2014.

       Following a bench trial on 11 July 2016, the trial court entered judgment in

favor of Plaintiff.    The court concluded that Defendant had maliciously and

wrongfully injured a genuine marital relationship between Plaintiff and her spouse;

Defendant committed criminal conversation with Plaintiff’s spouse; and Plaintiff was

entitled to recover $65,000 from Defendant. Defendant filed timely notice of appeal.

                                           Analysis

       Defendant challenges the trial court’s finding of fact that Defendant had

engaged in sexual conduct with Plaintiff’s spouse prior to their date of separation,

arguing that there was no competent evidence of pre-separation activity that gave

rise to more than mere conjecture of sexual conduct. We disagree.

       A. Standard of Review




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      In reviewing a trial court’s findings of fact, “we are strictly limited to

determining whether the trial judge’s underlying findings of fact are supported by

competent evidence . . . and whether those factual findings in turn support the judge’s

ultimate conclusions of law.” Reeder v. Carter, 226 N.C. App. 270, 274, 740 S.E.2d

913, 917 (2013) (internal citation and quotation marks omitted). Conclusions of law,

however, are reviewed de novo. Id. at 274, 740 S.E.2d at 917. Under a de novo review,

the court considers the matter anew and freely substitutes its own judgement for that

of the lower tribunal. Id. at 274, 740 S.E.2d at 917.

      B. Applicable Law

      A claim for criminal conversation requires the plaintiff to present evidence of

(1) marriage between the spouses and (2) sexual intercourse between the defendant

and the plaintiff’s spouse during the marriage. Coachman v. Gould, 122 N.C. App.

443, 446, 470 S.E.2d 560, 563 (1996). A claim of alienation of affection requires the

plaintiff to present evidence showing that “(1) there was a marriage with love and

affection existing between the husband and wife; (2) that love and affection was

alienated; and (3) the malicious acts of the defendant produced the loss of that love

and affection.” Nunn v. Allen, 154 N.C. App. 523, 533, 574 S.E.2d 35, 41-42 (2002)

(internal citation and quotation marks omitted). A malicious act “has been loosely

defined to include any intentional conduct that would probably affect the marital

relationship.” Pharr v. Beck, 147 N.C. App. 268, 272, 554 S.E.2d 851, 854 (2001),



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overruled on other grounds, McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620

(2006) (internal citation and quotation marks omitted).        Malice is conclusively

presumed by a showing that the defendant engaged in sexual intercourse with the

plaintiff’s spouse. Id. at 272, 554 S.E.2d at 854.

      This Court and the North Carolina Supreme Court have previously held that

sexual conduct occurring after a married couple has separated, but before their

divorce, is sufficient to support claims for criminal conversation and alienation of

affection. McCutchen, 360 N.C. at 284, 624 S.E.2d at 684 (“[F]or an alienation claim

to arise, the couple need only be married with genuine love and affection at the time

of defendant’s interference.”) (emphasis in original); Jones v. Skelley, 195 N.C. App.

500, 511, 673 S.E.2d 385, 393 (2009) (“North Carolina law is clear that a claim for

criminal conversation can be based solely on post-separation conduct.”).

      In Pharr v. Beck, this Court held that post-separation conduct is admissible to

prove a claim for alienation “only to the extent it corroborates pre-separation

activities resulting in the alienation of affection.” 147 N.C. App. at 273, 554 S.E.2d

at 855. The Court reasoned that allowing a claim based solely on post-separation

conduct was incompatible with North Carolina’s alimony statute, which limits

culpability to post-separation conduct. Id. at 273, 554 S.E.2d at 855 (citing N.C. Gen.

Stat. § 50-16.1A (1999)). The Supreme Court in McCutchen overruled that holding




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in Pharr “because North Carolina’s alimony statute does not govern the common law

tort of alienation of affections.” 360 N.C. at 285, 360 S.E.2d at 624.

       Pharr’s holding was inconsistent with prior and subsequent decisions by this

Court. In Johnson v. Pearce, 148 N.C. App. 199, 557 S.E.2d 189 (2001), this Court

held that evidence of sexual intercourse between the defendant and the plaintiff’s

spouse after the date of separation, but before the date of divorce, was sufficient to

support a claim for criminal conversation, explaining: “Until the legislature or

Supreme Court acts to modify the tort of criminal conversation, we are bound by

decisions of our Supreme Court and prior panels of this Court recognizing that the

mere fact of separation does not bar a claim for criminal conversation occurring

during the separation.” Id. at 202, 557 S.E.2d at 191.

       More recently, however, the reasoning of the Pharr decision regarding liability

arising from post-separation conduct has become the law. In 2009, the General

Assembly codified alienation of affection and criminal conversation in a statute

specifically limiting these torts to arise only from acts committed prior to a married

couple’s separation: “No act of the defendant shall give rise to a cause of action for

alienation of affection or criminal conversation that occurs after the plaintiff and the

plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s

spouse that the physical separation remain permanent.” N.C. Gen. Stat. § 52-13(a)

(2015) (emphasis added). Stated simply, these torts now impose liability for conduct



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occurring only: (1) during the marriage and (2) prior to physical separation.

Therefore, claims of alienation of affection and criminal conversation arising after the

effective date of Section 52-13 cannot be sustained without evidence of pre-separation

acts satisfying the elements of these respective torts.

      What is less clear is whether evidence of post-separation acts is admissible to

support an inference of pre-separation acts constituting alienation of affection or

criminal conversation. With respect to the tort of criminal conversation, and with

respect to the element of malice in an alienation of affection case being satisfied by

criminal conversation, prior decisions in cases addressing evidence necessary to prove

adultery are instructive, because criminal conversation is adultery. See Scott v.

Kiker, 59 N.C. App. 458, 461, 297 S.E.2d 142, 145 (1982).

      In re Estate of Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991), which held that

a surviving spouse was barred by adultery from receiving a year’s allowance from a

decedent’s estate, is routinely cited in criminal conversation cases considering what

evidence is sufficient to prove that sexual intercourse occurred. Our Supreme Court

observed in Trogdon a principle that transcends generations: “Adultery is nearly

always proved by circumstantial evidence . . . as misconduct of this sort is usually

clandestine and secret.” Id. at 148, 409 S.E.2d at 900 (internal citation and quotation

marks omitted). When there is no direct evidence of sexual intercourse between the

defendant and the plaintiff’s spouse, the plaintiff can prove criminal conversation by



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circumstantial evidence. However, circumstantial evidence of sexual intercourse

must rise to more than “mere conjecture,” and is generally sufficient “if a plaintiff can

show opportunity and inclination, [because] it follows that such evidence will tend to

support a conclusion that more than ‘mere conjecture’ exists to prove sexual

intercourse by the parties.” Coachman, 122 N.C. App. at 447, 470 S.E.2d at 563. In

Trogdon, the Court held that adultery was proven by circumstantial evidence

including the spouse moving out of the marital home and living with the third party

and the spouse’s refusal to testify about the nature of her relationship with the third

party. 330 N.C. at 151, 409 S.E.2d at 903.

      This Court has held that intentional acts by a defendant other than sexual

intercourse satisfied the malice element of alienation of affection. In Pharr, this

Court held that malice was shown by evidence including the following pre-separation

conduct by the defendant: meeting regularly with the plaintiff’s spouse knowing that

he was married; holding the spouse’s hand when he was in the hospital; giving him

presents; giving him “flirtatious looks;” hosting the spouse in her bedroom where

mixed drinks were found; and giving the spouse a calling card and allowing him to

use her post office box. 147 N.C. App. at 273-74, 554 S.E.2d at 855. The Court also

held that evidence of post-separation sexual intercourse between the defendant and

the plaintiff’s spouse “corroborates the pre-separation relationship between these

parties.” Id. at 274, 554 S.E.2d at 855.



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      Based on our precedent, we hold that evidence of post-separation conduct may

be used to corroborate evidence of pre-separation conduct and can support claims for

alienation of affection and criminal conversation, so long as the evidence of pre-

separation conduct is sufficient to give rise to more than mere conjecture.

      C. Application of the Law to This Case

      Defendant contends that one of the trial court’s factual findings was not

supported by competent evidence, that the trial court’s conclusions that Defendant

was liable for alienation of affection and criminal conversation were not supported by

the trial court’s findings, and that Plaintiff presented insufficient evidence to support

her claims.

      “Where trial is by judge and not by jury, the trial court’s findings of fact have

the force and effect of a verdict by a jury and are conclusive on appeal if there is

evidence to support them, even though the evidence might sustain findings to the

contrary.” Trogdon, 330 N.C. at 147, 409 S.E.2d at 900 (emphasis in original).

      Plaintiff’s evidence of pre-separation conduct included: (1) phone records

showing 120 contacts between Defendant and Plaintiff’s spouse in a one-month

period, all at times when Jimenez was away from home; (2) two hotel charges on

Jimenez’s credit card bill; (3) a third hotel receipt dated 21 March 2012 and

information from the third hotel that Jimenez was there with a woman; and (4) social

media postings by Defendant and Jimenez which Plaintiff interpreted as their initials



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used as a code between them.           Plaintiff’s evidence of post-separation conduct

included: (1) Jimenez and Defendant began living together in December 2012 or

January 2013; (2) Defendant gave birth to a child with the name Andres—Jimenez’s

first name—in October 2013; (3) Jimenez told Plaintiff in 2013 that he loved

Defendant; (4) Jimenez told Plaintiff that they could not reconcile because Defendant

was pregnant; and (5) Defendant admitted in her trial testimony that she had sexual

intercourse with Jimenez after he had separated from Plaintiff. Defendant does not

appeal from the trial court’s findings of fact concerning any of these circumstances,

and such findings are binding on appeal.

      Defendant contends that the evidence was insufficient to support the trial

court’s finding that Jimenez and Defendant “had sexual relations during the time

[Jimenez and Plaintiff] were married” and that Jimenez and Plaintiff “did not have

any legal separation at the time.”

       In considering the sufficiency of Plaintiff’s evidence to support this finding,

we are mindful of the factually specific nature of claims for alienation of affection,

criminal conversation, and adultery and our Supreme Court’s observance that these

cases often rest solely on circumstantial evidence. Trogdon, 330 N.C. at 148, 409

S.E.2d at 900. We hold that evidence of post-separation conduct between Defendant

and Jimenez corroborates evidence of their pre-separation conduct, including

allowing a reasonable inference that Defendant was the unidentified woman who



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accompanied Jimenez at a hotel on one occasion in March 2012 and that she engaged

in sexual intercourse with him on that occasion, a few weeks before Plaintiff and

Jimenez separated. Although Defendant at times in her trial testimony denied living

with Jimenez and claimed not to know who the father of her child was, the trial court

found otherwise based on evidence including Plaintiff’s testimony and inconsistencies

in Defendant’s testimony.      Accordingly, we affirm the trial court’s finding that

Defendant and Jimenez had sexual relations during a time when Plaintiff and

Jimenez were married and not separated.

      Had the trial court found simply that Jimenez and Defendant had sexual

relations while Plaintiff was married to Jimenez, its finding would on its face be

insufficient to support Plaintiff’s claims without specifying that such conduct

occurred prior to the couple’s separation.          But the trial court also found that

Defendant and Jimenez had sexual relations prior to a “legal separation” of Plaintiff

and Jimenez. This finding, in the context of all evidence of record, is sufficiently

specific to support the trial court’s conclusions that Defendant is liable to Plaintiff for

alienation of affection and criminal conversation.

      Defendant contends that the trial court’s use of the term “legal separation”

rendered its finding insufficient to support the trial court’s conclusion that Defendant

was liable for alienation of affection and criminal conversation because a legal

separation could mean an event later than the married couple’s physical separation,



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and thus beyond the scope of liability allowed by statute. On the facts before us, we

disagree. Subpart (a) of Section 52-13 defines separation in legal terms by referring

to an occurrence in which “the plaintiff and the plaintiff’s spouse physically separate

with the intent of either the plaintiff or plaintiff’s spouse that the physical separation

remain permanent.” N.C. Gen. Stat. § 52-13(a) (2015). Although we acknowledge, as

Defendant argues, that in other contexts legal separation may refer to spouses’

execution of a separation agreement or entry of a court order for pendent lite relief

pending divorce, in this case neither party presented evidence of any occurrence

manifesting Jimenez’s separation from Plaintiff other than his moving out of the

marital home on 8 April 2012. So there is no basis to interpret the trial court’s finding

to refer to any other date or occurrence as the couple’s “legal separation.” On this

record, we hold that the trial court’s factual findings and conclusions of law impose

liability on Defendant for conduct that occurred within the limited time period

allowed by the statute.

                                         Conclusion

      For the reasons set forth above, we hold that the trial court’s findings were

supported by the evidence, and that the trial court’s conclusions were sufficiently

supported by the findings.

      AFFIRMED.

      Chief Judge MCGEE and Judge TYSON concur.



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