Hathcock v. Hathcock, 37885
| Decision Date | 09 February 1982 |
| Docket Number | No. 37885,37885 |
| Court | Georgia Supreme Court |
| Parties | HATHCOCK v. HATHCOCK. |
James B. Drew, Jr., Atlanta, Don M. Jones, Lawrenceville, for William Parker Hathcock.
Ellwood F. Oakley, III, Dodd, Driver, Cornell & Hughes, Atlanta, for Betty Bennett Hathcock.
After grant of his application, William Parker Hathcock appeals from an order denying modification of his periodic alimony payments to his former wife, Betty Bennett Hathcock, and an order granting her motion for contempt. Additional facts will be stated as necessary for consideration of his enumerations of error.
1. William sought modification of his periodic alimony payments to his former wife, Betty, under the "live-in lover law." Code Ann. § 30-220(b). By questions directed to her on cross-examination, he sought to elicit her testimony as to whether or not she had a sexual relationship with the alleged live-in lover. Her objection under Code Ann. § 38-1205(a) was sustained, and she was not required to testify about whether the relationship was of a sexual nature.
Code Ann. § 38-1205(a) provides that "No party shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy or disgrace or public contempt upon himself or any member of his family."
Relying upon Brooks v. State, 233 Ga. 524, 526(2), 212 S.E.2d 355 (1975), William contends that the materiality of Betty's testimony outweighs the testimonial privilege of the statute. Brooks has been followed in Brown v. State, 242 Ga. 536, 538(3), 250 S.E.2d 438 (1978), requiring an attorney to answer questions tending to establish that his legal assistance was ineffective although the answers might tend to bring him into public disgrace or contempt. However, in civil actions involving proof of sexual relationships, invocation of the privilege has been allowed despite the materiality of the testimony because an inference against the witness's interest properly may be drawn by the factfinder from the witness's invocation of the privilege. This adverse inference is based upon an implied admission that a truthful answer would tend to prove that the witness had committed the act. Simpson v. Simpson, 233 Ga. 17, 21, 209 S.E.2d 611 (1974). Additionally, sexual misconduct may be proven in such civil actions by circumstantial evidence, so the necessity of obtaining an admission of the fact of sexual intercourse from the party or witness is diminished. Johnson v. Johnson, 218 Ga. 28(1), 126 S.E.2d 229 (1962). Finally, it remains a crime in Georgia for an unmarried person to have sexual intercourse. Code Ann. § 26-2010. For these reasons, the trial court did not err by sustaining Betty's objections to questions seeking to determine from her on cross-examination whether she had a sexual relationship with the alleged live-in lover.
2. The trial court charged that an inference against the witness invoking the privilege might be drawn by the jury but omitted that portion of William's request to charge which would have told the jury the legal basis for and effect of the adverse inference, that is, an implied admission that a truthful answer would tend to prove that the witness had committed the act. Betty contends that charging the jury as requested by William would have placed an improper emphasis upon the effect to be given to the inference. We disagree. The omitted portion of the request to charge was in the exact language of Simpson, supra. Omission of the requested language left the jury without instructions as to the nature and effect of the adverse inference they might choose to draw from Betty's invocation of the privilege. We cannot say that this error was harmless because proof of sexual intercourse was the linch pin of William's claim. Neither do we decline to review this error because William's objection to the omission of the language first was stated after the court recharged the jury rather than after the original charge of the court. Code Ann. § 70-207(c).
3. William has enumerated as error that portion of the court's charge in which the jury was instructed that "By meretricious, it is meant a relationship, though not necessarily illegal, in which the former spouse derives some economic benefit from her voluntary cohabitation with the third party."
Relying on Black's Law Dictionary, William contends that the relationship to which the live-in lover law is addressed must be sexual but need not involve economic benefits flowing either from the live-in lover to the cohabiting former spouse or from the cohabiting former spouse to the live-in lover. However, the definition of a "meretricious" relationship found in Black's Law Dictionary is a "relationship sustained by persons who contract a marriage that is void by reason of legal incapacity." We do not believe the General Assembly had the latter relationship in mind when it enacted the live-in lover statute. Code Ann. § 30-220(b).
We previously have determined that disallowing alimony modification pursuant to a 1979 amendment to the live-in lover statute "would require those spouses to subsidize their former husbands and wives and their lovers who are cohabiting together." Morris v. Morris, 244 Ga. 120, 123, 259 S.E.2d 65 (1979). We later referred to the relationship contemplated by the General Assembly as one "similar in nature to...
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