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

Steven R. GRIFFITH, Appellant/Respondent,
v.
Jennifer A. GRIFFITH, Respondent/Appellant

No. 2890.

Court of Appeals of South Carolina.

Heard June 2, 1998.

Decided October 12, 1998.

332 S.C. 632

D. Dusty Rhoades, Charleston, for appellant/respondent

David L. Devane, Charleston, for respondent/appellant.

332 S.C. 633

HOWARD, Judge

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

332 S.C. 634

The family court, the Hon. Berry L. Mobley presiding, granted the motion over the wife's objection, and continued the final hearing. Both the husband and wife then amended their pleadings to seek a divorce based on adultery. The husband also alleged the alternative ground of living separate and apart for one continuous year, and both alleged habitual drunkenness

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

332 S.C. 635

adultery by a clear preponderance of the evidence. The family court did not rule on the husband's request to consider a negative inference from the invocation of the Fifth Amendment privilege, although the court denied the wife the affirmative relief of permanent alimony based on the fact that she did invoke the privilege. The court ruled that the husband failed to prove adultery. From a motion to reconsider filed pursuant to Rule 59(e), SCRCP, the court declined to modify its ruling, or to require the wife to repay the temporary alimony.

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.

332 S.C. 636

In Oyler this court held that a party may not raise adultery as an avoidance to an action for alimony for the first time at trial. There was no pretrial motion to amend pleadings and assert adultery as a defense. The issue was raised during cross-examination of the wife at trial. The family court "liberally" construed the husband's general reply to the wife's counterclaim for alimony to encompass the issue. This court held the wife had been prejudiced because adultery had not been pled, giving her notice. We stated, "[c]learly, ... adultery involves the introduction of new matter which constitutes an avoidance to a claim for alimony," and must be pled under Rule 8(c), SCRCP. Id. at 7, 358 S.E.2d at 172.

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

332 S.C. 637

not a mere technical rule, but rather, a fundamental right of every citizen in our free society." State v. Thrift, 312 S.C. 282, 296, 440 S.E.2d 341, 349 (1994). Therefore, it is legally proper for persons facing criminal prosecution for adultery to invoke their Fifth Amendment privilege against self-incrimination.

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...