Brown v. Brown
| Decision Date | 28 May 2008 |
| Docket Number | No. 4397.,4397. |
| Citation | 665 S.E.2d 174,379 S.C. 271 |
| Court | South Carolina Court of Appeals |
| Parties | Thomas Lee BROWN, Appellant, v. Gina Marie (Stiles) BROWN, Respondent, and Gina Marie (Stiles) Brown, Third Party Plaintiff, v. Myron L. Brown & Carol J. Brown, Third Party Defendants. |
Oscar W. Bannister, of Greenville, for appellant.
Kenneth C. Porter, of Greenville, for respondent.
In this divorce action, Thomas Lee Brown (Husband) appeals the family court's failure to find Gina Marie Brown (Wife) committed adultery, thus barring her from receiving alimony. Additionally, Husband appeals the family court's inclusion of certain items as marital property and the assessment of Wife's attorney's fees against him. We affirm in part, reverse in part, and remand.
Husband and Wife (collectively the Browns) married in Ohio on November 27, 1982. They had five children together during their marriage. In 1985, the Browns moved to Greenville, South Carolina. In 1989, Husband purchased a house with several acres of property in Travelers Rest, South Carolina, but the Browns continued to reside in a house they were renting in Greenville, South Carolina. In 1995, Husband and Wife built a new home on the property in Traveler's Rest where they resided throughout the remainder of the marriage.
Chris Craft (Craft) sold and installed the windows in the Browns' new home. A few months later, Craft and his wife began socializing with the Browns. Around Christmas of 1996, Husband took the children to church while Wife remained at home with their baby. Husband returned home and unexpectedly discovered Craft there. In explaining Craft's presence, Wife told Husband Craft had stopped by to look at their Christmas lights.
Wife and Craft became close and began having lunch without either of their spouse's knowledge. On several occasions, Craft and Wife met in a remote part of a restaurant's parking lot and fondled each other in Wife's car. In 1998, Husband discovered Craft and Wife were having lunch together. After confronting Wife, she temporarily ceased contact with Craft but admitted to subsequently resuming their relationship. Additionally, Craft and Wife frequently talked on the phone. In late 2000, Husband discovered Wife had a cell phone for which she had the bill sent to her mother's address, and Husband testified Wife had called Craft several dozen times from Wife's cell phone.
Wife admitted her relationship with Craft was sexual in nature. Over the course of their relationship, Wife admitted to kissing Craft "a couple of dozen times," permitting him to grope her breasts, and allowing him to fondle her genital area. Wife stated she was in love with Craft and discussed marriage with him. Furthermore, Wife agreed her relationship with Craft was "sexual to a degree," and while not admitting to engaging in sexual intercourse, she stated both she and Craft desired sex with each other.
On November 14, 2000, Husband filed for divorce on the grounds of adultery. However, the action was administratively dismissed, and Husband filed a new action in 2002. Thereafter, Wife filed an answer denying she committed adultery and a third-party complaint against Husband's parents. Wife alleged Husband's parents were necessary parties to the divorce action because Husband and his parents had "common financial interests," and Wife believed they might claim an interest in a house in Husband's name as well as property surrounding the marital residence. Pursuant to a consent order, Wife's action against Husband's parents was consolidated with the divorce action.1
Following a hearing on the matter, the family court found Wife had not committed adultery, but her behavior with Craft did not aid in the preservation of the marriage. The family court further found Husband's predilection towards online pornography did not aid in the preservation of the marriage.
Finding Wife had never worked, the family court awarded Wife alimony of $3,197 per month. The family court found Husband's net monthly income was $6,136.48 with an annual earning capacity of $150,000. The family court also noted Husband's ability to make several personal expenditures, such as buying two expensive motorcycles and flying lessons, while he was paying temporary unallocated support of $5,000 a month.
The parties agreed Wife would retain custody of the minor children. The family court awarded Wife child support of $1,743 per month. The family court equally divided the marital property, awarding each party approximately half the value of the marital estate.
Furthermore, the family court ordered Husband to pay a total of $58,895.76 in Wife's attorney's fees, which included $27,000 previously paid pursuant to a temporary order and $3,000 previously paid to Wife during the pendency of the action. The family court also ordered Husband pay $5,006.50 of Wife's expert witness fee. Additionally, the family court ordered Husband's parents to pay $5,006.50 of Wife's expert witness fee and $5,000 of Wife's attorney's fees. This appeal follows.
On appeal from a family court order, this Court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). When reviewing decisions of the family court, we are cognizant of the fact the family court had the opportunity to see the witnesses, hear "the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character." DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972). When the evidence is conflicting and susceptible of different inferences, the family court has the duty of determining not only the law of the case, but the facts as well, because it had the benefit of observing the witnesses and determining how much credence to give each witness's testimony. Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985).
Husband contends the family court erred in failing to find Wife committed adultery, and thus, Wife should be barred from receiving alimony. We agree.
A family court may not award alimony to a spouse who commits adultery before the earliest of (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. S.C.Code Ann. § 20-3-130(A) (Supp.2007).
Proof of adultery as a ground for divorce must be "clear and positive and the infidelity must be established by a clear preponderance of the evidence." McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct.App.1987). A "preponderance of the evidence" is evidence which convinces as to its truth. DuBose, 259 S.C. at 424, 192 S.E.2d at 331. Because of the "clandestine nature" of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses is rarely possible, so direct evidence is not necessary to establish the charge. Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct.App.1987).
Accordingly, adultery may be proven by circumstantial evidence that establishes both a disposition to commit the offense and the opportunity to do so. Hartley v. Hartley, 292 S.C. 245, 246-47, 355 S.E.2d 869, 871 (Ct.App.1987). Generally, "proof must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed." Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74 (Ct.App.1985). Evidence placing a spouse and a third party together on several occasions, without more, does not warrant the conclusion the spouse committed adultery. Fox v. Fox, 277 S.C. 400, 402, 288 S.E.2d 390, 391 (1982).
Our courts have not specifically stated what sexual acts constitute adultery. Panhorst v. Panhorst, 301 S.C. 100, 104, 390 S.E.2d 376, 378 (Ct.App.1990). In Nemeth v. Nemeth, 325 S.C. 480, 486, 481 S.E.2d 181, 184 (Ct.App.1997), this Court noted South Carolina has rejected the argument equating adultery with intercourse. In Nemeth, the wife took a cruise and stayed in a cabin with a man other than her husband. Id. at 484, 481 S.E.2d at 183. The wife denied she committed adultery and introduced evidence she had chronic pain that made intercourse difficult for her. Id. at 485, 481 S.E.2d at 184. This Court found adultery, stating sexual intercourse is not required to establish adultery; sexual intimacy is enough. Id. at 486, 481 S.E.2d at 184.
Additionally, in Panhorst, the wife was accused of adultery and sought to testify her alleged paramour was impotent and thus was incapable of performing intercourse. 301 S.C. at 104, 390 S.E.2d at 378. This Court found "her assertion that she has first hand knowledge and experience of [her paramour's] sexual abilities, if the family court had considered it, would have supported the court's finding of adultery." Id.
In McElveen v. McElveen, 332 S.C. 583, 598, 506 S.E.2d 1, 8 (Ct.App.1998), this Court declined to find the wife committed adultery because "there [was] virtually no evidence of a romantic or sexual relationship between the [wife and her paramour]." This Court noted without evidence to support a romantic relationship, including love letters, romantic cards, hand-holding, hugging, kissing, or any other romantic demonstrations or actions between the wife and her paramour, adultery was not adequately established. Id.
This Court reiterated in McLaurin, 294 S.C. at 133-34, 363 S.E.2d at 111, that circumstantial evidence indicating opportunity and inclination is sufficient to sustain a finding of adultery. In McLaurin, we affirmed the family court's finding the husband committed adultery when the only evidence...
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