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Alienation of Affection: Venue Matters

Clark v. Clark and Barrett, 2021-NCCOA-653 (2021)

  • Facts: A married couple, the Clarks, lived in North Carolina. In 2016, Husband began an affair with Ms. Barrett, in Virginia. That same year while home in North Carolina, Wife discovered text messages between Husband and Barrett. The couple argued and Wife ultimately had to be hospitalized due to the stress. More texts and explicit photographs were discovered on Husband’s phone a few months later. The photos were clearly taken in the Clark home. In September 2016, Husband finally left the marital home after Wife threatened to call Barrett and ask about the affair. In January 2017, Husband and Wife acquired some land in which to build a house. A few months later the couple executed a separation agreement. Husband and Wife at one point in 2017 reconciled and resumed an intimate relationship. However, during this time, Husband was still carrying on an intimate relationship with Barrett. That relationship went as far as conceiving a child with Barrett via in vitro fertilization. Wife filed an Alienation of Affection lawsuit against Barrett. Barrett was held liable, and she appealed.


  • Issue: Was the finding that the injury occurred in North Carolina an error by the trial court?


  • Holding:


  • Rationale: Barrett argued that the North Carolina courts lacked jurisdiction to hear the alienation case because none of the injuries occurred in North Carolina. Alienation is classified as a transitory tort. Those are torts that can take place anywhere but harms a person rather than real property (location).  However, jurisdiction is key in an alienation case, as most states no longer allow that claim—thus, it is key that the actions of a defendant that give rise to the claim occur in a state that still recognized the cause of action. North Carolina requires only more than a “scintilla” of evidence that injury occurred in North Carolina to allow the issue to go before the jury. In this case, the texts and photos were exchanged in the state, so there was no error.