Constitutionality of Heart Balm Torts Will Have to Wait

Veronica Filipowski brought a lawsuit against Melissa Oliver Lieu in November 2009 in Forsyth County Superior Court for alienation of affections and criminal conversation. She claimed that at the time that she was happily married to Andrew J. Filipowski, that Ms. Lieu cultivated a friendship that “grew into an adulterous relationship.”

Ms. Lieu sought to dismiss the claims on the basis that the torts infringe her constitutional rights under the First and Fourteenth Amendments to the US and North Carolina Constitutions. Specifically, she argued that alienation of affection and criminal conversation are unconstitutional as a violation of due process liberty and privacy interest as well as equal protection rights under the federal and state Constitutions. Her argument relied primarily on the United States Supreme Court decision in Lawrence v. Texas which struck down a Texas law making it a crime for persons of the same sex to engage in certain intimate sexual conduct. In essence, Ms. Lieu argues that North Carolina’s alienation of affections and criminal conversation tort laws are unconstitutional because they allow the government to intrude on individual’s private decisions regarding sexual conduct and punish them for such decisions.

The trial court had granted summary judgment to the Plaintiff on the issue of criminal conversation after Ms. Lieu admitted in a deposition that she had sexual intercourse with Plaintiff’s husband while they were married and before their date of separation. This established liability as a matter of law. The trial court denied Ms. Lieu’s motion to dismiss and she immediately appealed to the North Carolina Court of Appeals. The Court of Appeals dismissed the appeal finding that the trial court’s order was not immediately appealable.

As a result, the case goes back to the trial court to determine liability for alienation of affections and determine the amount of damages to be awarded.  After that is concluded, the matter may go back to the Court of Appeals and perhaps even the Supreme Court after the trial court finishes the case.  Read the complete decision of Filipowski v. Lieu, ___ N.C.App. ___, ___ S.E.2d. ____ (2012).