N.C.P.I.—Civil 800.23

NOTE WELL: Actions arising from acts occurring prior to

October 1, 2009, are governed solely by the North

Carolina Supreme Court decision in McCutchen v.

McCutchen, 360 N.C. 280, 624 S.E. 2d 620 (2006), upon

which this instruction is based. For actions arising

from acts occurring on or after October 1, 2009, use

N.C.P.I.-Civil 800.23A ("Alienation of Affection -

Statute of Limitations").

The (state number) issue reads:

“Did the plaintiff file this action within three years of the date the

alienation between the plaintiff and his spouse became complete?”1

If you have answered the (state number) issue “Yes” in favor of the

plaintiff, the plaintiff’s claim may nonetheless be legally barred by what

is called the statute of limitations.2 The law provides that a lawsuit

claiming alienation of affection must be filed within three years of the

date the alienation between the plaintiff and his spouse became

complete.3 The plaintiff filed the present lawsuit on (state date of filing

of alienation of affection action).

On this issue, the burden of proof is on the plaintiff. 4 This means

that the plaintiff must prove, by the greater weight of the evidence, that

the alienation of the genuine marital relationship between the plaintiff

and his spouse became complete less than three years before (state date

of filing of alienation of affection action).

Alienation is complete at that point in time when the genuine

marital relationship between spouses becomes seriously diminished or

destroyed.5 The law recognizes that this diminishment or destruction may

not happen all at once. You must determine when the genuine marital

relationship between the plaintiff and his spouse became seriously

diminished or destroyed based upon all of the evidence.

[If you find, by the greater weight of the evidence, that there came

a point in time when there was no longer a chance of reconciliation

between the plaintiff and his spouse, then the diminishment or

destruction of the genuine marital relationship between the plaintiff and

his spouse would have become complete at that point in time.6]

You may consider whether the plaintiff and his spouse resided

together in your determination of this issue. 7 It is not required that

spouses be living together at the time the diminishment or destruction of

a genuine marital relationship becomes complete.8 The diminishment or

destruction may become complete even though spouses continue to live

together;9 likewise, although the circumstance that spouses are not living

together may be strong evidence of alienation,10 the diminishment or

destruction may not be complete even though spouses are no longer

living together.11

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence, that the plaintiff

filed this action within three years of the date the alienation between the

plaintiff and his spouse became complete, then it would be your duty to

answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.