IN THE SUPREME COURT OF NORTH CAROLINA
No. 294A22
Filed 22 March 2024
DAVID BEAVERS
v. JOHN MCMICAN
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 285 N.C. App. 31 (2022), reversing an order of summary
judgment entered on 14 October 2020 by Judge Keith O. Gregory in Superior Court,
Wake County, and remanding the case for further proceedings. Heard in the Supreme
Court on 13 September 2023.
Matheson & Associates, PLLC, by John R. Szymankiewicz and Jammie L. Wacenske, for plaintiff-appellee.
Batch, Poore & Williams, PC, by J. Patrick Williams, for defendant-appellant.
EARLS, Justice.
This appeal raises a narrow legal issue of statutory interpretation involving
the controversial heartbalm torts recognized in North Carolina. Plaintiff David
Beavers brought civil claims for alienation of affection and criminal conversation
against his ex-wife’s alleged paramour, defendant John McMican. The first question
before this Court is whether the holding in Rodriguez v. Lemus, 257 N.C. App. 493 BEAVERS V. MCMICAN
Opinion of the Court
(2018)1, concerning which evidence is relevant to prove pre-separation conduct, is
inconsistent with the enacted language and legislative intent of N.C.G.S. § 52-13,
which specifies that post-separation conduct cannot give rise to liability in these
circumstances. The second related issue for this Court is whether the trial court
improperly granted summary judgment in favor of Mr. McMican. After reviewing the
text of section 52-13 and finding it unambiguous, we hold that the Court of Appeals’
opinion in Rodriguez is consistent with legislative intent. Accordingly, evidence of
post-separation conduct may be used to corroborate pre-separation conduct, so long
as the evidence of pre-separation conduct gives rise to more than mere conjecture.
Rodriguez, 257 N.C. App. at 498. Nonetheless, because we find the evidence of pre-
separation conduct in this case does not give rise to more than mere conjecture
regarding the identity of Mrs. Beavers’ paramour, we reverse the decision of the Court
of Appeals and hold that the trial court properly granted summary judgment in favor
of Mr. McMican.
I. Procedural History
On 13 December 2018, Mr. Beavers sued Mr. McMican on theories of alienation
of affection and criminal conversation. On 14 January 2020, Mr. McMican filed a
motion for summary judgment on both claims. On 17 August 2020, the trial court
conducted a hearing on Mr. McMican’s motion during which both parties referenced
1 This Court denied discretionary review and dismissed a petition for writ of certiorari
to review the Court of Appeals’ opinion in Rodriguez. See 371 N.C. 447 (2018).
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recent depositions of Mrs. Beavers and Mr. McMican’s ex-wife, Jessica McMican;
however, neither deposition was certified until 20 August 2020, three days later. On
14 October 2020, the trial court entered an order granting Mr. McMican’s motion for
summary judgment. Mr. Beavers timely appealed.
At the Court of Appeals, Mr. Beavers submitted a record supplement pursuant
to Rule 11(c) of the Rules of Appellate Procedure containing, inter alia, the
depositions of Mrs. Beavers and Mrs. McMican discussed by counsel during the
summary judgment hearing. On 23 November 2021, the Court of Appeals entered an
order remanding the matter to the trial court and inquiring which, if either, of the
depositions the trial court considered in granting Mr. McMican’s motion for summary
judgment. Beavers v. McMican, 285 N.C. App. 31, 34 (2022). In response, on 24
February 2022, the trial court entered an amended order granting Mr. McMican’s
motion for summary judgment and confirming that it had not considered either of the
depositions at the original hearing on the matter. Id. Accordingly, the Court of
Appeals stated that neither deposition would inform its review of the trial court’s
order granting Mr. McMican’s motion for summary judgment. Id. at 32, 35. We
similarly do not consider any evidence not properly before the trial court when it
decided Mr. McMican’s motion for summary judgment.2
2 Our decision is based on the principle that “[i]nformation adduced from counsel during oral arguments cannot be used to support a motion for summary judgment under Rule 56(c).” Huss v. Huss, 31 N.C. App. 463, 466 (1976). Therefore, we limit our consideration to “evidence consisting of affidavits, depositions, answers to interrogatories, admissions, documentary materials, facts which are subject to judicial notice, and any other materials
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The Court of Appeals determined that Mr. Beavers presented sufficient
evidence of post-separation conduct involving his former wife and defendant, and that
under Rodriguez, such evidence is corroborative of pre-separation conduct even when
the identity of a pre-separation extramarital sexual partner is unknown. Id. at 41.
Thus, the Court of Appeals held that the trial court erred in granting Mr. McMican’s
motion for summary judgment. Id. Judge Jackson dissented, opining in relevant part
that Mr. Beavers’s allegations lacked evidentiary support, and thus, the trial court
properly granted Mr. McMican’s motion for summary judgment. Id. at 46, 63
(Jackson, J., dissenting). Based on Judge Jackson’s dissent, Mr. McMican filed a
notice of appeal with this Court on 21 September 2022, pursuant to N.C.G.S. § 7A-
30(2).3
II. Background
David and Alison Beavers were married on 23 October 2004. Together they had
three children. On 18 January 2016, Mr. Beavers discovered text messages on Mrs.
Beavers’s phone in which she had sent nude pictures of herself to a person identified
only as “Bestie.” Until this discovery, Mr. Beavers believed he and his wife had a
loving marriage. In addition to the pictures, Mrs. Beavers and “Bestie” had exchanged
messages referencing an instance of sexual intercourse that had occurred before the
which would be admissible in evidence at trial.” Id., (citing Koontz v. City of Winston-Salem, 280 N.C. 513 (1972); Singleton v. Stewart, 280 N.C. 460 (1972)). 3 Judge Jackson’s dissent also explained his rationale for eliminating heartbalm torts,
but this issue was not raised or argued by either party in this appeal.
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exchange of the messages and pictures. At the time of this discovery, Mr. Beavers did
not look at the phone number associated with the contact labeled “Bestie” or take any
steps to determine “Bestie’s” identity.
After confronting Mrs. Beavers, Mr. Beavers left the marital home to stay with
his parents. When he returned several days later, he and Mrs. Beavers discussed the
extramarital affair, and Mrs. Beavers admitted that she had engaged in sexual acts
with the person identified as “Bestie.” Nonetheless, she stated that she and “Bestie”
had not engaged in sexual intercourse. Mrs. Beavers also told Mr. Beavers that her
paramour was a coworker named “Dustin.”
In the weeks that followed, Mr. Beavers, who was skeptical of the story Mrs.
Beavers told during their first conversation, accused Mrs. Beavers of engaging in
sexual intercourse with another man. In response, Mrs. Beavers ultimately admitted
that she had engaged in sexual intercourse with someone from her workplace, but
she did not specify if that person was “Dustin.” Mr. Beavers was unable to discover
Dustin’s identity, and because Mrs. Beavers did not have anyone named “Dustin” in
her contacts, Mr. Beavers guessed “Dustin” was a pseudonym. The Beaverses
separated for the final time on 16 December 2016.
On 1 April 2017, three and a half months after she and her husband separated,
and over a year after Mr. Beavers discovered the compromising text messages with
“Bestie,” Mrs. Beavers began openly dating her coworker, Mr. McMican. The two had
known each other through work since the summer of 2011 and had attended work
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events together with other coworkers. The record shows that in October 2016, the two
exchanged ninety-eight text messages. There is also evidence that Mrs. Beavers and
Mr. McMican interacted via Facebook. After learning that Mrs. Beavers and Mr.
McMican were dating, Mr. Beavers concluded that Mr. McMican was his then-
estranged wife’s alleged paramour. But while Mr. McMican admitted to becoming
romantically and sexually involved with Mrs. Beavers in April 2017, there is no
evidence the two were romantically involved before that time.
III. Standard of Review
We apply de novo review to both issues in this case. Issues of statutory
interpretation are legal issues subject to de novo review. E.g., Saunders v. ADP
TotalSource Fi Xi, Inc., 372 N.C. 29, 38 (2019). Moreover, “[t]his Court reviews
decisions arising from trial court orders granting or denying motions for summary
judgment using a de novo standard of review.” Cummings v. Carroll, 379 N.C. 347,
358 (2021). Rule 56(c) of the North Carolina Rules of Civil Procedure states that
summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56 (2021). When evaluating a
trial court’s decision to “grant or deny a summary judgment motion in a particular
case, ‘we view the pleadings and all other evidence in the record in the light most
favorable to the nonmovant and draw all reasonable inferences in that party’s favor.’ ”
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Cummings, 379 N.C. at 358 (quoting N.C. Farm Bureau Mut. Ins. Co. v. Sadler, 365
N.C. 178, 182 (2011)).
To prevail on summary judgment, the moving party must meet “the burden
(1) of proving an essential element of the opposing party’s claim is nonexistent, or (2)
of showing through discovery that the opposing party cannot produce evidence to
support an essential element of his or her claim.” Lowe v. Bradford, 305 N.C. 366,
369 (1982) (first citing Moore v. Fieldcrest Mills, Inc., 296 N.C. 467 (1979); and then
citing Zimmerman v. Hogg & Allen, P.A., 286 N.C. 24 (1974)). “If the moving party
meets this burden, the non-moving party must in turn either show that a genuine
issue of material fact exists for trial or must provide an excuse for not doing so.” Id.
(first citing Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 (1980); then citing
Moore, 296 N.C. at 470; and then citing Zimmerman, 286 N.C. at 29).
IV. N.C.G.S. § 52-13 and the Court of Appeals’ Decision in Rodriguez v. Lemus
Our Court and the Court of Appeals previously have held that sexual conduct
which occurs after a married couple separates but before the couple divorces, can be
used to support alienation of affection and criminal conversation claims. See
McCutchen v. McCutchen, 360 N.C. 280, 284 (2006); Jones v. Skelley, 195 N.C. App.
500, 511–12 (2009).4 But in 2009 the General Assembly enacted N.C.G.S. § 52-13,
4 Both of these decisions were superseded by statute N.C.G.S. § 52-13(a), as enacted
by An Act to Clarify Procedures in Civil Actions for Alienation of Affection and Criminal Conversation, S.L. 2009-400, § 1, 2009 N.C. Sess. Laws 780, 780, as recognized in Rodriguez, 257 N.C. App. 493.
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which supersedes these decisions. This statute applies to both alienation of affection
and criminal conversation claims and states:
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.G.S. § 52-13(a) (2021). In other words, a defendant may be liable only for conduct
that occurs during the marriage and before physical separation. Id.; see also
Rodriguez, 257 N.C. App. at 496–97.
The Court of Appeals interpreted subsection 52-13(a) in Rodriguez v. Lemus,
and determined that, based on the language of the statute, alienation of affection and
criminal conversation claims could not be sustained without evidence of pre-
separation conduct that met the elements of each respective claim. 257 N.C. App. at
496–97. There the court also determined that evidence of post-separation conduct
could be used to corroborate evidence of pre-separation conduct in either an alienation
of affection or criminal conversation claim, as long as the evidence of pre-separation
conduct was “sufficient to give rise to more than mere conjecture.” Id. at 498.
Defendant argues that Rodriguez’s holding is inconsistent with the legislative
intent behind N.C.G.S. § 52-13. While it is true that the “principal goal of statutory
construction is to accomplish the legislative intent,” the General Assembly’s intent
“may be found first from the plain language of the statute.” Lenox, Inc. v. Tolson, 353
N.C. 659, 664 (2001). “It is well settled that, ‘[w]here the language of a statute is clear
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and unambiguous, there is no room for judicial construction and the courts must
construe the statute using its plain meaning.’ ” In re Est. of Lunsford, 359 N.C. 382,
391–392 (2005) (alteration in original) (quoting Burgess v. Your House of Raleigh,
Inc., 326 N.C. 205, 209 (1990)).
Because the text of N.C.G.S. § 52-13 is unambiguous, there is no need for this
Court to engage in statutory construction. Moreover, the Court of Appeals’ holding in
Rodriguez is consistent with our appellate precedent. In In re Estate of Trogdon, 330
N.C. 143 (1991), this Court in addressing an intestate succession claim and being
tasked with determining how much evidence was necessary to show that sexual
intercourse had occurred between the spouse and someone other than her now
deceased husband, explained that “adultery is nearly always proved by
circumstantial evidence . . . as misconduct of this sort is usually clandestine and
secret.” Id. at 148 (cleaned up). In that case the circumstantial evidence consisted of
the spouse voluntarily moving from the marital home and then living with the
suspected paramour, as well as the spouse’s refusal to testify regarding the nature of
her relationship with that person. Id. at 151.
Additionally, in Pharr v. Beck, 147 N.C. App. 268 (2001), overruled by
McCutchen, 360 N.C. 280,5 the Court of Appeals concluded that post-separation
conduct, namely, sexual intercourse between the defendant and the plaintiff’s spouse,
5 McCutchen overruled Pharr “to the extent it requires an alienation of affection[]
claim to be based on pre-separation conduct alone.” 360 N.C. at 285.
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could be used to corroborate the existence of a romantic pre-separation relationship
between those parties. Id. at 274. Accordingly, the Court of Appeals’ holding in
Rodriguez is consistent with both the text of N.C.G.S. § 52-13(a), which requires that
alienation of affection and criminal conversation claims arise from pre-separation
conduct and our appellate precedent, which not only acknowledges the frequent need
for circumstantial evidence to prove these types of claims but also expressly allows
for evidence of post-separation conduct to corroborate pre-separation conduct.
Essentially,
N.C.G.S. § 52-13 prevents defendants in cases involving criminal conversation and alienation of affection from being held liable for acts taking place after two spouses have separated, and Rodriguez effectuates that policy by ensuring that, if a factfinder considers evidence of post- separation conduct, it does so only insofar as it contextualizes pre-separation conduct.
Beavers, 285 N.C. App. at 39. Thus, we hold that the Court of Appeals’ opinion in
Rodriguez is consistent with N.C.G.S. § 52-13’s legislative intent, and evidence of
post-separation conduct can be used to corroborate evidence of pre-separation conduct
in alienation of affection and criminal conversation claims, if the pre-separation
conduct gives rise to more than mere conjecture.
V. Mr. Beavers’s Alienation of Affection and Criminal Conversation Claims
To establish an alienation of affection claim, a plaintiff must prove: (1) that the
plaintiff and his or her spouse “were happily married, and that a genuine love and
affection existed between them; (2) that the love and affection so existing was
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alienated and destroyed; and (3) that the wrongful and malicious acts of the
defendant produced and brought about the loss and alienation of such love and
affection.” McCutchen, 360 N.C. at 283 (cleaned up). “A malicious act ‘has been loosely
defined to include any intentional conduct that would probably affect the marital
relationship.’ ” Rodriguez, 257 N.C. App. at 495 (quoting Pharr, 147 N.C. App. at 272).
In cases in which the defendant has engaged in sexual intercourse with the plaintiff’s
spouse, “[m]alice is conclusively presumed.” Id. at 495–96. To establish a claim for
criminal conversation, a plaintiff must prove two elements: first, the plaintiff must
show marriage between the spouses, and second, sexual intercourse between the
defendant and the plaintiff’s spouse during the marriage. Id. at 495 (citing Coachman
v. Gould, 122 N.C. App. 443, 446 (1996)).
Moreover, “while a measure of certainty is required for guidance in deciding
future cases,” our Court has recognized that there is no “brightline test for
determining how much evidence is necessary to permit a jury or trial judge to infer
adultery.” In re Est. of Trogdon, 330 N.C. at 145. Instead, “each . . . case[ ] will demand
a fact-specific inquiry.” Id. Furthermore, “[a]dultery is nearly always proved by
circumstantial evidence” because such evidence “is often the only kind of evidence
available.” Id. at 148 (cleaned up). Accordingly, “adultery is presumed if the following
can be shown: (1) the adulterous disposition, or inclination, of the parties; and (2) the
opportunity created to satisfy their mutual adulterous inclinations.” Id.
Importantly, and as noted above, if evidence of post-separation conduct is used
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to corroborate pre-separation conduct, the evidence of pre-separation conduct must
“give rise to more than mere conjecture.” Rodriguez, 257 N.C. App. at 498.
Determining what constitutes more than “mere conjecture” is particularly important
“[g]iven the highly emotional nature of the subject matter” in these types of cases.
Chappell v. Redding, 67 N.C. App. 397, 401 (1984) (quoting Horney v. Horney, 56 N.C.
App. 725, 727 (1982)). Thus, a “definite line must be drawn between permissible
inference and mere conjecture.” Id. (quoting Horney, 56 N.C. App. at 727).
In In re Estate of Trogdon, our Court addressed the issue of mere conjecture in
the context of proving adultery. While this case did not involve an alienation of
affection or criminal conversation claim, its analysis is instructive for both types of
claims. There, this Court noted that the following evidence was sufficient to show
adultery: (1) the wife, Mrs. Trogdon, began arriving home late at night, and began
staying away from the marital home for days at a time until eventually moving out
of the home to an apartment; (2) shortly thereafter, Mr. Winfrey, a man who lived in
the same apartment complex as Mrs. Trogdon, moved into Mrs. Trogdon’s apartment;
(3) when asked about the two living together, Mrs. Trogdon noted that they “couldn’t
see paying rent for two different apartments”; (4) when asked to testify about their
living arrangement, Mrs. Trogdon invoked her Fifth Amendment right against self-
incrimination; (5) Mrs. Trogdon admitted to her son that she and Mr. Winfrey were
“living together”; (6) a private investigator testified that he saw Mrs. Trogdon and
Mr. Winfrey stay in their apartment throughout the night and subsequently
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witnessed Mr. Winfrey leave the apartment to start Mrs. Trogdon’s car before he
returned to their shared apartment; and (7) a witness testified that one morning the
two exited the apartment and left together. Id. at 145–46. Based on this evidence,
this Court concluded that the conduct at issue amounted to more than conjecture. Id.
at 151.
Regarding the opportunity and inclination prongs, this Court also noted that
the above evidence amounted to “more than suspicion and conjecture.” Id. In doing
so, the Court explained that, while it would “not presume every male-female living
together situation to be amorous,” this living arrangement, when combined with the
other factors present in In re Estate of Trogdon, permit[ted] a “reasonable inference
of adultery.” Id. Specifically, when taken together, the factors listed above supported
an inference that Mrs. Trogdon had both an adulterous inclination and the
opportunity to satisfy that inclination. Id. at 148.
Our Court of Appeals has also addressed the issue of mere conjecture in both
alienation of affection and criminal conversation claims. In Coachman v. Gould, 122
N.C. App. 443 (1996), the court analyzed the following pre-separation conduct and
determined that it did not rise above mere conjecture: (1) a car ride between the
plaintiff’s wife and the defendant; (2) phone calls between the plaintiff’s wife and the
defendant; and (3) a statement by the plaintiff’s wife while she was in a “medicated
stupor” that she had “been with” the defendant, which the court characterized as
“ambiguous” and “subject to multiple interpretations.” Id. at 446.
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Regarding the criminal conversation claim, the court noted that, even after
viewing the evidence in the light most favorable to the plaintiff, the interactions
between the defendant and the plaintiff’s wife amounted to no more than “mere
conjecture” that the defendant and the plaintiff’s wife had engaged in sexual
intercourse. Id. at 447. To arrive at this conclusion, the court explained that telephone
calls and a car ride were not the types of “opportunities” for sexual intercourse
required under this Court’s precedent in In re Estate of Trogdon. Id. Accordingly, “in
this legal context,” the defendant’s conduct was “innocuous” and did not “amount to
more than mere conjecture.” Id. (cleaned up).
Regarding the plaintiff’s alienation of affection claim, the court concluded that
the only evidence that might support a finding that the defendant engaged in
wrongful and malicious conduct was phone calls the defendant made to the marital
home. Id. at 447–48. But the defendant’s phone calls could not support this element
for two reasons. First, the defendant and the plaintiff’s wife “had an ongoing business
relationship” and the plaintiff had not met his burden of forecasting evidence that
the phone calls were made for non-business purposes. Id. at 448. Second, even
assuming the calls were of a non-business nature, the plaintiff’s allegation that the
phone calls were “only partially business” and the rest was just “talk, talk, talk, talk,
talk” did not rise to the level of malicious conduct by the defendant designed to
alienate the affections of the plaintiff’s spouse. Id.
In contrast, in Pharr v. Beck the Court of Appeals addressed an alienation of
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affection claim and determined that the pre-separation conduct at issue rose above
mere conjecture. That pre-separation evidence consisted of: (1) meetings between the
defendant and the plaintiff’s spouse; (2) the defendant holding the plaintiff’s
husband’s hand in front of the plaintiff during the husband’s hospitalization; (3) the
defendant giving plaintiff’s husband several gifts; (4) the defendant giving the
plaintiff’s husband flirtatious looks; (5) the defendant inviting the plaintiff’s husband
to her home and then offering to move out of the home when her husband found her
there with the plaintiff’s husband; (6) the defendant’s husband observing the
plaintiff’s husband and the defendant coming out of the defendant’s bedroom after
the two consumed alcoholic beverages together; (7) the defendant giving the plaintiff’s
husband a calling card and instructions on how to call her while he was on vacation
with the plaintiff; (8) the defendant allowing the plaintiff’s husband to use her post
office box; and (9) the defendant asking the plaintiff’s husband to help her remodel
the house that the two subsequently lived in together. Id. at 273–74. Based on this
pre-separation conduct, which appears to give rise to more than mere conjecture, the
court concluded that post separation sexual intercourse between the defendant and
the plaintiff’s husband could be used to corroborate the existence of a pre-separation
relationship between the parties. Id. at 274. Thus, this evidence could be used to
substantiate the malice element of the plaintiff’s alienation of affection claim. Id. at
271–72, 274.
Moreover, in Rodriguez the Court of Appeals also concluded that the parties’
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pre-separation conduct gave rise to more than mere conjecture that they were
engaged in an intimate relationship. 257 N.C. App. at 498–500. There the court
addressed both alienation of affection and criminal conversation claims. Id. at 495–
99. The pre-separation evidence in Rodriguez included: (1) 120 phone contacts, which
took place over a one-month period, between the defendant and the plaintiff’s
husband during times when the husband was away from the home; (2) two hotel
charges on the plaintiff’s husband’s credit card; (3) a receipt from a third hotel stay
and information from that hotel that the plaintiff’s husband was there with a woman;
(4) social media posts between the defendant and the plaintiff’s husband, using their
initials, which the plaintiff interpreted as a code used by the two to communicate. Id.
at 498.
Because the pre-separation evidence in Rodriguez gave rise to more than mere
conjecture, the Court of Appeals also reviewed post-separation evidence. Id. at 498–
99. This evidence, as found by the trial court, consisted of: (1) the plaintiff’s husband
and the defendant living together; (2) the defendant giving birth to a child, which she
named after the plaintiff’s husband; (3) the plaintiff’s husband having told the
plaintiff that he loved the defendant; (4) the plaintiff’s husband telling his wife they
could not reconcile because the defendant was pregnant; and (5) the defendant
admitting at trial that she and the plaintiff’s husband had sexual intercourse after
he had separated from the plaintiff. Id. Accordingly, the Court of Appeals held that
the evidence of post-separation conduct in Rodriguez corroborated the evidence of pre-
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separation conduct and allowed for two “reasonable inference[s]” to be drawn: first,
that the defendant was the woman who had accompanied the plaintiff’s husband to
the hotel on a specified occasion and, second, that the two engaged in sexual
intercourse on that occasion, which preceded the plaintiff’s separation from her
husband. Id. at 499. Accordingly, this evidence could be used to meet the malice
element of an alienation of affection claim and the sexual intercourse requirement of
a criminal conversation claim. Id. at 495–96, 499.
In the present case the Court of Appeals determined, and the parties do not
dispute, that whether a marriage existed, whether there was love and affection
between the spouses, and whether that love and affection were alienated are not at
issue here. Beavers, 285 N.C. App. at 36–37. Thus, evidence supports the first two
elements of Mr. Beavers’s alienation of affection claim and the first element of his
criminal conversation claim. As for the alienation of affection claim, the issue is
whether through “wrongful and malicious acts,” Mr. McMican “produced and brought
about the loss and alienation” of Mrs. Beavers’s “love and affection” for her husband.
McCutchen, 360 N.C. at 283. These circumstances can be shown through “any
intentional conduct that would probably affect the marital relationship,” Rodriguez
257 N.C. App. at 495 (quoting Pharr, 147 N.C. App. at 272), or through sexual
intercourse between Mr. McMican and Mrs. Beavers, id. at 495–96. Similarly, at
issue for the criminal conversation claim is whether sexual intercourse occurred
between Mr. McMican and Mrs. Beavers. Id. at 495.
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It is also apparent that Mrs. Beavers admitted to having sexual relations with
someone else before she and Mr. Beavers separated. The only question is whether
there is any pre-separation evidence that Mr. McMican was that person. Mr.
Beavers’s complaint alleges that he first suspected Mr. McMican and his wife were
having an affair in January 2016, and that he had “found detailed conversations”
between his wife and Mr. McMican, which recounted sexual encounters between the
two and included nude photos. Yet, the allegations in Mr. Beavers’s complaint are
refuted by his deposition testimony, which states that the communications at issue
were between Mrs. Beavers and someone named “Bestie.” Mr. Beavers also admitted
that he did not know the phone number associated with “Bestie” nor did he have
knowledge of “Bestie’s” identity. In fact, the only information Mr. Beavers had about
Mrs. Beavers’s alleged paramour, was that the two worked together and that,
according to Mrs. Beavers, his name was “Dustin.” Moreover, Mr. Beavers did not
suspect Mr. McMican was Mrs. Beavers’s paramour until the two began openly dating
in “the spring of 2017.” Based on this information, Mr. Beavers states he “put two
and two together.”
But even taking this evidence in the light most favorable to Mr. Beavers, as is
required under our summary judgment standard, Cummings, 379 N.C. at 358, this
evidence is insufficient to survive summary judgment because there is no pre-
separation evidence that Mr. John McMican is “Bestie,” “Dustin,” or any other
iteration of the man with whom Mrs. Beavers had an affair before she and Mr.
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Beavers separated. See N.C.G.S. § 1A-1, Rule 56. The contact designated as “Bestie”
in Mrs. Beavers’s phone, as well as her description of her paramour as “Dustin,” is
“ambiguous” and “subject to multiple interpretations.” Coachman, 122 N.C. App. at
446. Accordingly, the evidence does not give rise to more than mere conjecture that
Mr. McMican is the man with whom Mrs. Beavers had an affair in January of 2016.
Mr. Beavers notes that, while there is no direct evidence showing that Mr.
McMican is “Bestie” or “Dustin” such evidence is not required under In re Estate of
Trogdon. Although it is true that In re Estate of Trogdon acknowledges that
“[a]dultery is almost always proved by circumstantial evidence,” in that case Mrs.
Trogdon’s paramour was conclusively identified. 330 N.C. at 148, 151. Thus, while
circumstantial evidence may have been used to show that Mrs. Trogdon had an affair,
there was no question as to whom Mrs. Trogdon had that affair with. Id. at 151.
Without evidence of Mrs. Beavers’s alleged paramour’s identity, Mr. Beavers “cannot
produce evidence to support an essential element of his . . . claim.” Lowe, 305 N.C. at
369. Accordingly, the trial court was correct in granting summary judgment in Mr.
McMican’s favor.
Additionally, Mr. Beavers argues that Mr. McMican’s malicious intent is
evidenced by his phone and social media contacts with Mrs. Beavers; however,
without evidence that Mr. McMican is “Bestie” or “Dustin,” Mr. Beavers has not
provided enough evidence to support the malice prong of his alienation of affection
claim. Similar to the situation in Coachman, Mr. McMican and Mrs. Beavers worked
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together at Merck Durham. Thus, to meet the malice standard for an alienation of
affection claim, Mr. Beavers needs to show that Mr. McMican’s conversations with
Mrs. Beavers “were marked by salacious whisperings, plans for clandestine meetings,
or any other intonation of improper conduct by [the] defendant.” Coachman, 122 N.C.
App. at 448.
Mr. Beavers cannot meet this standard because he has produced only a
wireless phone call record, which does not include any information regarding the
content of Mrs. Beavers’s and Mr. McMican’s phone conversations. He also has
produced no information regarding the content of Mr. McMican’s and Mrs. Beavers’s
text messages. Moreover, the Facebook contacts between Mr. McMican and Mrs.
Beavers are platonic in nature and consist of a “happy birthday” post from Mrs.
Beavers to Mr. McMican, Mr. McMican’s having added Mrs. Beavers to a Facebook
group, and Mr. McMican “liking” Mrs. Beavers’s posts. These Facebook contacts do
not rise to the level of those present in Rodriguez, which included the parties’
purported use of a secret communication code. See 257 N.C. App. at 498. Mrs. Beavers
“had a right to speak” to Mr. McMican “if she chose to do so.” Coachman, 122 N.C.
App. at 448. Thus, without any verification of Mr. McMican as “Bestie” or “Dustin,”
the pre-separation conduct in this case does not give rise to more than mere
conjecture that Mr. McMican was the person that Mrs. Beavers was seeing
romantically in January of 2016.
While Mrs. Beavers admitted to having an adulterous relationship prior to her
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separation from Mr. Beavers, there is no pre-separation evidence sufficient to
establish that Mr. McMican was the individual involved. Therefore, there is
insufficient evidence to support either the sexual intercourse element of Mr.
Beavers’s criminal conversation claim against Mr. McMican, or an alienation of
affection claim predicated on sexual intercourse with Mr. McMican. Moreover, the
evidence presented is not sufficient to fulfill the inclination prong of In re Estate of
Trogdon. While the evidence detailed above reflects communication between Mrs.
Beavers and Mr. McMican, it does not reflect an “adulterous disposition[ ] or
inclination.” In re Estate of Trogdon, 330 N.C. at 148. Finally, under the opportunity
prong in In re Estate of Trogdon, there is no evidence that Mrs. Beavers had the
opportunity to commit adultery with Mr. McMican because there is no evidence that
she was ever alone with him in circumstances that reasonably could be inferred along
with all the other evidence in the case to constitute an opportunity to engage in sexual
intercourse. See In re Estate of Trogdon, 330 N.C. at 151; Rodriguez, 257 N.C. App.
at 498-99; Pharr, 147 N.C. App. at 273.
Accordingly, because Mr. Beavers cannot show that Mr. McMican was Mrs.
Beavers’s paramour during the relevant period based on pre-separation evidence, nor
can he show the malice prong of an alienation of affection claim or the sexual
intercourse element of a criminal conversation claim, the trial court was correct to
grant Mr. McMican’s motion for summary judgment. See Lowe, 305 N.C. at 369
(stating that summary judgment is appropriate when the moving party shows “that
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the opposing party cannot produce evidence to support an essential element of his or
her claim.”). Thus, we reverse the decision of the Court of Appeals and instruct that
court to reinstate the trial court’s order granting summary judgment in favor of
defendant.
REVERSED.
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