Doe v. Doe

• Decision Date: 23 December 1996
• Docket Number: No. 2580,2580
• Citation: 324 S.C. 492,478 S.E.2d 854
• Court: South Carolina Court of Appeals
• Parties: Jane DOE, Respondent/Appellant, v. John DOE, Appellant/Respondent.

Page 854

478 S.E.2d 854

324 S.C. 492

Jane DOE, Respondent/Appellant, v. John DOE, Appellant/Respondent.

No. 2580.

Court of Appeals of South Carolina.

Submitted Sept. 10, 1996.

Decided Oct. 28, 1996.

Rehearing Denied Dec. 23, 1996.

John Doe, Columbia, Pro Se.

Nancy M. Young, Columbia, for respondent.

HEARN, Judge.

Jane Doe (Wife) filed this action against John Doe (Husband) seeking a divorce on the ground of adultery. Wife sought alimony, equitable distribution of the marital estate, possession of the marital home, discovery, and attorney's fees. The judge denied the request for a divorce, finding Wife failed to prove adultery by clear and convincing evidence; however, the judge entered an order of separate maintenance and support addressing the other issues raised by the parties. The judge ordered Husband to pay $300 per month permanent, periodic alimony, equally divided the marital property, refused to require either party to pay for the college expenses of the parties' child, and ordered each party to pay his or her own attorney fees. Both parties appeal. We affirm. ¹

Facts

Husband and Wife were married in September 1962. One son was born of the marriage. At the time of this action, the son was nineteen and a freshman at Clemson University. The parties separated in May 1993. Both parties worked outside the home throughout the marriage and shared household and child-rearing responsibilities. Husband, at the time of the action, was fifty-seven years old, in good health, and employed by the South Carolina Employment Security Commission. He has been employed by various state agencies for approximately twenty-five years. Husband testified his income contributed approximately 71% of the marital income. Husband earns a gross monthly salary of $4,212. He also has a retirement account valued without a cost of living factor at $115,904.47 and valued with a cost of living factor at $153,768.

At the time of the action, Wife was fifty-two years old, in good health, and employed as a nurse earning a gross monthly salary of $2,141.48. Wife has a retirement account valued at $1,617 and IRAs valued at $33,894.

At the temporary hearing, Wife introduced her affidavit stating Husband had been diagnosed with genital herpes, chlamydia, and chronic prostatitis. She attached a copy of an alleged medical form which she claims contains the diagnoses. The form includes a section entitled "Diagnosis" followed by three numeric codes. "Chlamydia, Herpes of Genitals Unspec, and Chronic Prostatitis" are listed next to each code under a heading entitled "Description." Wife testified she did not have either herpes or chlamydia.

During direct examination, Wife's attorney questioned her about the affidavit and medical document. Husband objected, claiming it was not a medical document. The judge took judicial notice of the document because it was in the file. The affidavit was evidently introduced during a prior temporary hearing. Husband argued that although it was in the file, it could not be used at a final hearing. The judge overruled the objection.

During cross-examination, Wife was asked whether she had been propositioned by other men during the marriage. Wife's attorney objected, claiming Husband did not plead marital infidelity by Wife. The judge refused to allow the questioning, finding Wife was not put on notice of this issue. Later in the cross-examination Husband's attorney again tried to question Wife about her relationship with another man. Wife's attorney again objected and Husband's attorney withdrew the question.

Son attends Clemson University and earns As and Bs. Before the end of the marriage, the parties agreed he could attend Clemson if it was his college of choice. Husband testified the parties always agreed to pay Son's college costs. During his first year at Clemson, Husband contributed $7,020 toward his expenses for tuition, books, room, and board. Husband testified he also paid Son's car payment, car insurance, gas, health insurance, medical expenses, and spending money. Husband also purchased a $1,200 computer for Son. Husband used a joint marital savings account of $1,300 to pay some of these expenses.

Wife contributed funds for Son to take a winter ski trip and a trip to Florida for spring break. Son borrowed $5,800 in student loans during his first school year. The record does not indicate whether the loan proceeds were used to pay tuition or other costs. Son did not work during the school year and Husband testified he did not know what Son did with the money he earned during the summer vacation.

Husband's Appeal

I.

Husband first argues the family court judge erred in admitting Wife's complaint, affidavit, and attached medical form into evidence. We disagree.

Husband argues the judge erred in admitting Wife's complaint "into evidence" because the allegations in the complaint are untrue and the judge erred in "allowing a false accusation along with a false document resulting in undue harm to the [Husband]" into evidence. Husband alleges the false statements include Wife's allegation he had "sexual relationships with other men and women during the marriage," and her allegation that she was forced out of the marital home. We find this argument is without merit. A complaint is part of the pleadings of a case and is not "evidence." Furthermore, any objections to impertinent or scandalous matters in a complaint are properly raised by the defendant in a motion to strike. Rule 12(f), SCRCP ("Upon motion ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.").

Husband argues the family court erred in allowing into evidence the alleged medical form attached to Wife's affidavit as proof that he was diagnosed with chlamydia. Husband also argues the family court erred in allowing into evidence Wife's affidavit in which she states Husband was diagnosed with chlamydia in 1992. Husband denies he has chlamydia and argues the medical form was merely a statement of services for filing insurance, not a medical report containing a diagnosis.

The admission or exclusion of evidence is a matter within the sound discretion of the trial court and, absent clear abuse, will not be disturbed on appeal. Recco Tape and Label Co., Inc. v. Barfield, 312 S.C. 214, 439 S.E.2d 838 (1994). To warrant reversal, the appellant must show both the error of the ruling and resulting prejudice. Id. Wife introduced the document as circumstantial evidence of Husband's adultery. However, even if this document was improperly admitted, it did not result in any prejudice to Husband since the family court ultimately found Wife did not prove Husband committed adultery. We find no error.

II.

Husband next argues the judge erred in prohibiting him from cross-examining Wife about extramarital relationships. Husband argues the inquiry "would have provided relevant information" and the judge's failure to allow the questioning "prohibited [Husband from] getting a fair hearing on this matter and caused considerable damage to [Husband's] case." We disagree. Husband did not plead Wife's adultery and thus was not entitled to question her on the issue at trial.

This court addressed a similar issue in Oyler v. Oyler, 293 S.C. 4, 358 S.E.2d 170 (Ct.App.1987). In Oyler, the husband, in an effort to bar an award of alimony, sought to elicit testimony from the wife concerning alleged adulterous relationships. Id. at 5, 358 S.E.2d at 171. Wife's attorney objected, but the family court judge overruled the objection and allowed the questioning even though the husband had not pled adultery. Id. at 5-6, 358 S.E.2d at 171. Wife then admitted having several sexual relationships since the parties' separation. The family court judge subsequently held the wife was barred from receiving alimony. Id. at 6, 358 S.E.2d at 171. This court reversed the family court, finding adultery is an avoidance to an action for alimony which must be pled under Rule 8(c), SCRCP. Id. at 7, 358 S.E.2d at 172. The court stated:

Had the wife in this case been on notice that the husband would raise adultery as a bar to her alimony claim, she could have pled and sought to prove recrimination or condonation as dictated by Family Court Rule 11.... In our opinion it would be extremely unjust to allow the husband to raise the issue of adultery, a complete bar to alimony, by surprise at this stage of the case.

Id. at 8, 358 S.E.2d at 172. Similarly, to allow Husband in this case to raise the issue at trial without giving Wife notice would have constituted an unfair surprise to Wife. Thus, the family court judge did not err in prohibiting Husband's counsel from questioning Wife about extramarital relationships.

III.

Husband next argues the family court erred in accepting an order drafted by Wife's attorney which contained false statements and enhanced awards not specified by the judge. We disagree.

Husband contends Wife's attorney included false statements of fact in her proposed order. Husband states his attorney gave proposed corrections to the order to Wife's attorney. "Rather than make the corrections, [Wife's] attorney submitted a letter along with the draft to the Judge and pleaded her case to enhance the award." Husband argues Wife's attorney "improperly played the role of judge" by including items in the order that the judge did not orally request. Husband states the incorrect facts include:

a) The parties separated in May 1993; Husband states this is incorrect as Wife deserted him;

b) The parties did not have sex for six years; Husband argues he did not testify to this or agree with Wife's testimony;

c) The Husband was diagnosed with chlamydia; Husband argues he does not have chlamydia;

d) The judge instructed Wife's attorney to recite factors which justify 50/50 division of assets; Husband argues this discretion permitted Wife's attorney to strengthen her case;

e) Each party worked hard during...