Griffith v. Griffith, No. 2890.
Court | Court of Appeals of South Carolina |
Writing for the Court | HOWARD. |
Citation | 506 S.E.2d 526,332 S.C. 630 |
Parties | Steven R. GRIFFITH, Appellant/Respondent, v. Jennifer A. GRIFFITH, Respondent/Appellant. |
Decision Date | 12 October 1998 |
Docket Number | No. 2890. |
332 S.C. 630
506 S.E.2d 526
v.
Jennifer A. GRIFFITH, Respondent/Appellant
No. 2890.
Court of Appeals of South Carolina.
Heard June 2, 1998.
Decided October 12, 1998.
David L. Devane, Charleston, for respondent/appellant.
In this divorce action, we are asked to consider the implications arising from the refusal of a party who seeks the affirmative relief of alimony to answer questions concerning alleged adulterous behavior, asserting the Fifth Amendment privilege against self-incrimination.1 Steven R. Griffith (the husband) and Jennifer A. Griffith (the wife) sued each other for a divorce on multiple grounds, including adultery. In the final hearing, the wife and two witnesses named as paramours declined to answer questions concerning their alleged adulterous conduct, asserting the Fifth Amendment privilege against self-incrimination. The family court denied the wife permanent alimony because she asserted her Fifth Amendment privilege, and she appeals from this ruling. The husband appeals the family court's refusal to draw an adverse inference from the wife's invocation of the privilege against self-incrimination, asserting that this inference, along with other evidence, established the wife's adultery as a ground for divorce. The husband also appeals the failure of the family court to order reimbursement of temporary alimony payments, the valuation of the equitable distribution of property, and the award of attorney's fees to the wife. We affirm in part, reverse in part, and remand for further proceedings.
FACTS
The parties were married in 1982 and have two minor children. They separated in March of 1994, and the wife brought an action for separate maintenance and support. The court granted her temporary custody, child support, and temporary alimony. Following discovery, the husband brought a separate action for custody and made a motion in this case to amend his answer to assert adultery as a ground for divorce and as a bar to alimony. This motion was made on November 18, 1996, two days before the scheduled final hearing.2
The parties reached an accord on the issues of custody and child support, which the court adopted in its final decree. The merits hearing was held before the Hon. Frances P. Segars-Andrews on February 11 and 12, 1997, following which the court granted a divorce based on one year's continuous separation. At the beginning of the hearing, the parties stipulated that they had been granted immunity from prosecution for adultery by the Solicitor for the Ninth Judicial Circuit. In the hearing, the husband called the wife and her two alleged paramours to the witness stand and directly asked each if the wife had committed adultery. All three refused to answer the questions, asserting their Fifth Amendment privilege against self-incrimination.3
The second of the two alleged paramours admitted returning to Charleston, South Carolina from El Paso, Texas to visit with the wife, following her telephone call to him. He acknowledged that he and the wife had been romantically involved during high school. In June of 1995 he stayed at a local motel, and the wife visited him there. He also admitted that the wife told him about a previous relationship with another man named Bill (the first alleged paramour is named Bill), and from her words he "inferred that it was a very close relationship including a sexual relationship," though he added that he "had no knowledge directly."
Based on the refusal to answer the direct questions concerning adulterous conduct, the husband asked the court to infer the wife's adultery. The husband argued that this inference, coupled with the other testimony as noted above, established
In the divorce decree, the court ordered an equitable division of marital property ostensibly on a 50/50 basis, ordering that each party retain possession of the property which that party possessed. The court also awarded the wife attorney's fees of $10,000. Both parties stipulated at oral argument that a 50/50 division of property was proper, irrespective of this court's resolution of the remaining issues. But the husband appeals the family court's award, arguing it does not result in an even allocation of assets.4 The husband also appeals the award of attorney's fees. The wife appeals the court's pretrial ruling allowing the husband to raise adultery as an issue and the denial of affirmative relief on the basis of her invocation of the Fifth Amendment privilege against self-incrimination.
DISCUSSION
I. Wife's Appeal
A. Motion to amend
The wife first asserts the lower court should not have allowed the husband to amend his pleadings to allege adultery two days before trial, citing Oyler v. Oyler, 293 S.C. 4, 358 S.E.2d 170 (Ct.App.1987). We find this argument to be without merit.
Pleadings may be amended by leave of court, which "shall be freely given when justice so requires and [it] does not prejudice any other party." Rule 15(a), SCRCP;5 see Bennefield v. Bennefield, 263 S.C. 233, 209 S.E.2d 563 (1974) (motion to allow amendment of pleading is addressed to the sound discretion of the family court). The wife suffered no prejudice in this case by the pretrial ruling, since the court continued the trial to allow the amendment of the pleadings and gave each party two months to prepare. Where, as here, there is no prejudice, the family court has not abused its discretion by allowing the amendment.
B. Denial of affirmative relief
The wife argues that the denial of the affirmative relief of alimony in a divorce case to a party who invokes the privilege against self-incrimination "simply cannot be the rule in South Carolina." We disagree.
Under the laws of this state, adultery is a criminal offense. S.C.Code Ann. § 16-15-60 & 70 (1985). A conviction of adultery subjects the violator to punishment of up to a five hundred dollar fine, one year imprisonment, or both. Id. "The framers of the Bill of Rights recognized the dangers inherent in self-incrimination, and as a result, placed in the Fifth Amendment a prohibition against compelling a witness to testify against himself. This prohibition against compelled self-incrimination is a basic constitutional mandate which is
No South Carolina case has directly addressed whether a party may continue to seek the affirmative relief of alimony while denying the opposing party the opportunity to cross-examine on the subject of their alleged adultery. The handling of the refusal to answer relevant questions regarding adultery on Fifth Amendment grounds in other states is, of course, dependent on the criminality of the alleged conduct in the first instance. Our research indicates that those states confronted by this issue have almost uniformly concluded that one who seeks this affirmative relief in a civil case may not invoke the Fifth Amendment privilege against self-incrimination in response to proper questions relating to the subject matter in issue. In such instances, the trial court may properly require them to choose between the Fifth Amendment privilege and the continuation of their claim for affirmative relief. See Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993); Stockham v. Stockham, 168 So.2d 320 (Fla.1964) (equity considerations require complaining spouse in divorce action to answer requests or pursue action no further); Minor v. Minor, 232 So.2d 746 (Fla.Dist.Ct.App. 1970), aff'd 240 So.2d 301 (Fla.1970); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (plaintiff required to waive privilege against self-incrimination or have divorce action dismissed); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955) (en banc) (complaining spouse's refusal to answer questions at support hearing justified striking of spouse's pleadings); Pulawski v. Pulawski, 463 A.2d 151 (R.I.1983) (wife could not seek financial...
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Badeaux v. Davis, No. 3047.
...the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence.'" Griffith v. Griffith, 332 S.C. 630, 647, 506 S.E.2d 526, 535 (Ct.App.1998) (citing Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991)). See also, Bull v. Smith, 299......
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Nicholson v. Nicholson, No. 4404.
...and (6) customary legal fees for similar services. Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991). In Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct.App.1998), where an award of attorney fees in a divorce action did not set forth the findings of fact on the six required......
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Sochko v. Sochko, 2007-UP-082
...family court must make specific findings of fact on the record for each of the required factors to be considered. Griffith v. Griffith, 332 S.C. 630, 646, 506 S.E.2d 526, 534-35 (Ct. App. 1998) (quoting Rule 26(a), SCRFC) (An order or judgment pursuant to an adjudication in a domestic relat......
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McKinney v. Pedery, Appellate Case No. 2013–002601.
...trial court must make specific findings of fact on the record for each of the required factors to be considered.” Griffith v. Griffith, 332 S.C. 630, 646–47, 506 S.E.2d 526, 534–35 (Ct.App.1998) (citing Rule 26(a), SCRFC ; Blumberg v. Nealco, Inc., 310 S.C. 492, 427 S.E.2d 659 (1993) ; Atki......
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Badeaux v. Davis, No. 3047.
...the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence.'" Griffith v. Griffith, 332 S.C. 630, 647, 506 S.E.2d 526, 535 (Ct.App.1998) (citing Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991)). See also, Bull v. Smith, 299......
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Nicholson v. Nicholson, No. 4404.
...and (6) customary legal fees for similar services. Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991). In Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct.App.1998), where an award of attorney fees in a divorce action did not set forth the findings of fact on the six required......
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Sochko v. Sochko, 2007-UP-082
...family court must make specific findings of fact on the record for each of the required factors to be considered. Griffith v. Griffith, 332 S.C. 630, 646, 506 S.E.2d 526, 534-35 (Ct. App. 1998) (quoting Rule 26(a), SCRFC) (An order or judgment pursuant to an adjudication in a domestic relat......
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McKinney v. Pedery, Appellate Case No. 2013–002601.
...trial court must make specific findings of fact on the record for each of the required factors to be considered.” Griffith v. Griffith, 332 S.C. 630, 646–47, 506 S.E.2d 526, 534–35 (Ct.App.1998) (citing Rule 26(a), SCRFC ; Blumberg v. Nealco, Inc., 310 S.C. 492, 427 S.E.2d 659 (1993) ; Atki......