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Misenheimer v. Burris4/5/2005
ning damages a jury 'may consider the loss of companionship, loss of services, mental anguish, humiliation, and fear of sexually transmitted disease. In addition, there may be recovery for the injury to health and family honor . . . .'" American Mfrs. Mut. Ins. Co. v. Morgan, 147 N.C. App. 438, 442, 556 S.E.2d 25, 28 (2001) (quotations omitted), cert. denied, 355 N.C. 747, 565 S.E.2d 191, 192 (2002).
Despite the simple elements of a valid marriage and sexual intercourse by a spouse with a third party, inherent in the cause of action are acts of deceit and concealment. Typically, the spouse and interloper do not flaunt their indiscretions in the open such that it becomes readily apparent to the aggrieved party, whois often the last to know. Rather, as in situations involving fraud, the acting parties seek to conceal their behavior, not just from the aggrieved, but also from the rest of the world. The party injured by the criminal conversation defendant often would be unable to discover the truth and subsequently suffer harm until some time after the fact.
Application of the discovery rule to claims of criminal conversation to protect the "fundamental right of exclusive sexual intercourse between spouses" is in line with North Carolina's demonstrated interest in the importance of protecting marriage. N.C. Gen. Stat. § 8-57(c) (2003) ("No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage."); Thompson v. Thompson, 70 N.C. App. 147, 154-55, 319 S.E.2d 315, 320-21 (1984) (attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation), rev'd on other grounds, 313 N.C. 313, 328 S.E.2d 288 (1985); Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985) (the causes of action for criminal conversation and alienation of affections are recognized and valid in North Carolina); In re Webb, 70 N.C. App. 345, 350, 320 S.E.2d 306, 309 (1984) ("' he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.'") (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 504, 52 L.Ed. 2d 531, 540 (1977)), aff'd, 313 N.C. 322, 327 S.E.2d 879, 879-80 (1985).
III. Conclusion
Our appellate courts have extended N.C. Gen. Stat. § 1-52(16) to many other subsections of N.C. Gen. Stat. § 1-52. While the statute of limitations for criminal conversation and many other torts is three years, criminal conversation is an inherently deceitful, concealing, and deceptive act. As in cases of fraud, the parties involved intentionally and actively conceal and attempt to avoid discovery by the aggrieved spouse. An aggrieved party probably will not become aware of the commissions of adultery, if ever, until well after the acts occurred. A tortfeasor should not be awarded for exceptionally egregious behavior after secretive actions intended and devised to preclude discovery. The trial court properly ruled that the discovery rule applies and tolls the three year statute of limitations until the aggrieved party did or should have discovered defendant's tortious acts. The jury specifically found as fact that plaintiff's criminal conversation claim was filed "within three years after the time the bodily harm became apparent or reasonably to have become apparent to . . . plaintiff, whichever occurred first." As "no fact tried by a jury . . . shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law[,]" U.S. Const. amend. VII; N.C. Const. art. I, § 19, defendant's assignment of error should be o
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