N.C.P.I.—Civil 800.23A

NOTE WELL: N.C. Gen. Stat. § 52-13, effective October

1, 2009, and applicable to actions arising from acts

occurring on or after that date, provides as follows:

(a) No act of the defendant shall give rise to a cause

of action for alienation of affection. . . 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.

(b) An action for alientation of affection. . . shall not

be commenced more than three years from the last act

of the defendant giving rise to the cause of action.

This instruction incorporates the foregoing statutory

amendment and should be used in all actions arising

from acts occurring on or after October 1, 2009.

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). For actions

arising from acts occurring before October 1, 2009, use

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

of Limitations").

The (state number) issue reads:

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

the last act of the defendant giving rise to the plaintiff’s claim?”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 of the last act of the defendant which gave rise to the plaintiff’s

claim. [The law further provides that if the plaintiff and the plaintiff’s

spouse have physically separated with the intent on the part of either the

plaintiff or his spouse that the physical separation remain permanent,

then no act of the defendant which occurs following such separation may

give rise to the plaintiff’s alienation of affection claim.]3 The plaintiff

filed the present lawsuit on (state date of filing of alienation of affection

action).

By answering issue (state number) “Yes” in favor of the plaintiff,

you found that the malicious and wrongful conduct of the defendant

consisted of [an act] [acts] which occurred prior to the physical

separation of the plaintiff and his spouse with the intent on the part of

either the plaintiff or his spouse that the physical separation remain

permanent.

On this (state number) issue, the burden of proof is on the

plaintiff.4 This means that the plaintiff must now prove, by the greater

weight of the evidence, that the last act of the defendant upon which you

based your finding in issue (state number) must have occurred less than

three years before the date of the filing of this lawsuit by the plaintiff.

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 of the last act of the

defendant giving rise to the plaintiff’s claim, 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.