Huggins v. Huggins
| Decision Date | 15 August 2018 |
| Docket Number | Appellate Case No. 2015-001803,Unpublished Opinion No. 2018-UP-357 |
| Court | South Carolina Court of Appeals |
| Parties | Celestine Huggins, Respondent, v. Kenneth Huggins and Garry Conyers, Defendants, Of whom Kenneth Huggins is the Appellant. |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Sumter County
Angela R. Taylor, Family Court Judge
AFFIRMED
John Stephen Keffer, of Young, Keffer & Donnald, PA, of Sumter, for Appellant.
Richard Thomas Jones, of Jones Seth & Jones, LLP, of Sumter, for Respondent.
In this divorce action, Kenneth Huggins (Husband) appeals, arguing the family court erred in (1) allowing Celestine Huggins (Wife) to amend her pleadings; (2) finding he committed adultery; (3) awarding Wife attorney's fees and costs, including investigative fees; (4) determining his conduct, including physical cruelty and habitual substance abuse, contributed to the breakup of the marriage; (5) refusing to award him alimony; and (6) dividing the marital property and giving Wife substantially more marital property. We affirm.
Husband and Wife were married on September 21, 1991. Two children were born of the marriage. Wife filed for divorce on April 17, 2014, on the grounds of habitual drunkenness and physical cruelty. Wife requested sole custody of the parties' minor daughter, child support, and for Husband to contribute to the payment of uncovered medical expenses for their minor daughter. Wife did not seek alimony, but sought a larger apportionment of the equitable distribution of the marital property. She also requested reimbursement of attorney's fees and costs.
In his answer, Husband sought separate support and maintenance from Wife and joint custody of their minor daughter. He sought equitable distribution of the marital property and requested both parties waive any interest in the other's retirement accounts. On October 13, 2014, Husband filed a motion to amend his pleadings to seek alimony. In his amended answer, Husband alleged Wife abandoned the marriage, requested that Wife be barred from receiving alimony, and sought alimony from Wife.
On May 13, 2015, Wife filed a motion to amend her pleadings to request a divorce on the ground of adultery, reimbursement of private investigator fees, and termination of her obligation to pay a portion of the mortgage on the marital home. Wife's motion was hand delivered to Husband on the same date.
A final hearing was held on May 18-19, 2015. The family court's final decree of divorce was filed on July 10, 2015. Husband filed a motion for reconsideration. Wife also filed a motion for reconsideration, modification, or amendment of the final decree of divorce. The family court denied both motions. This appeal followed.
On appeal from the family court, this court reviews factual and legal issues de novo. Stoney v. Stoney, 422 S.C. 593, 594, 813 S.E.2d 486, 486 (2018); Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 651-52 (2011). Although this court reviews thefamily court's findings de novo, we are not required to ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lewis, 392 S.C. at 384-85, 709 S.E.2d at 651-52. "[D]e novo standard of review does not relieve an appellant from demonstrating error in the [family] court's findings of fact." Id. at 385, 709 S.E.2d at 652. Thus, "the family court's factual finding will be affirmed unless [the] 'appellant satisfies this court that the preponderance of the evidence is against the finding of the [family] court.'" Id. at 392, 709 S.E.2d at 655.
Husband argues the family court erred in allowing Wife to amend the pleadings. We disagree.
The South Carolina Rules of Civil Procedure, which are applicable to family court pleadings, state:
If evidence is objected to at the trial on the ground that it is not within the issue made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits.
Rule 15(b), SCRCP; see Meehan v. Meehan, 407 S.C. 471, 480, 756 S.E.2d 398, 403 (Ct. App. 2014); Pool v. Pool, 329 S.C. 324, 327-28 & n. 5, 494 S.E.2d 820, 822 & n. 5 (1998). "The focal inquiry in allowing amendment of pleadings is whether doing so will prejudice the opposing party." Pool, 329 S.C. at 328, 494 S.E.2d at 822.
Five days prior to the final hearing, Wife filed her motion to amend her pleadings to request a divorce on the ground of adultery, reimbursement of private investigator fees, and termination of her obligation to pay a portion of the mortgage on the marital home. Her motion was hand-delivered to Husband on the same date.
Husband argues on appeal that the family court should have denied Wife's request to amend her pleadings or continued the matter until he could have answered the amendment. He argues allowing Wife to amend her pleadings was unduly prejudicial to him. He further asserts that for the family court to find he committed adultery and then use that as a reason to deny him alimony and award Wife attorney's fees and costs, including investigative fees, is "extremely unjust."
Husband did not file a response or make any written objection to the motion prior to the hearing. During the first day of trial, Wife presented testimony from two private investigators, Husband's alleged mistress, and herself about Husband's adultery. Husband did not object to any of the testimony about the adultery or the exhibits coming before the court. At the conclusion of the testimony about the adultery, Wife asked for her previously-filed motion to amend her pleadings be granted or that the pleadings be conformed to the evidence presented. Husband objected to the court considering "that behavior," but not to "the testimony as to the behavior." Husband's attorney stated:
[E]ven if we would have objected the [c]ourt would have considered that because the issue of alimony is at issue so it's not like we could have kept that out anyway. I think regardless of whether it's asked for in the pleadings it can be considered. Alimony is at issue, which is why I didn't object to it because it was going to come in regardless.
The court found Husband had not objected to the evidence so it was tried without objection, and the court granted Wife's motion to amend her pleadings. We find the issue was tried by consent.
Husband argues the family court erred in finding he committed adultery. We disagree.
"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.'" Brown v. Brown, 379 S.C. 271, 277-78, 665 S.E.2d 174, 178 (Ct. App. 2008) (quoting 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." Id. at 278, 665 S.E.2d at 178 (quoting DuBose v. DuBose, 259 S.C. 418, 424, 192S.E.2d 329, 331 (1972)). "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." Id. (quoting 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." Id.
Husband argues Wife offered testimony from two private investigators who testified Husband was seen at his alleged mistress' house on two separate occasions, but neither investigator stated Husband spent the night at her house. Therefore, he argues the family court's finding that he committed adultery was not supported by a clear preponderance of the evidence.
At trial, Husband testified he had never spent the night at his alleged mistress' house; however, the mistress testified he had spent the night there "maybe three, two, three or four times." The private investigator testified he found Husband at his alleged mistress' house in the early morning hours, exiting her house with a coffee cup, having his own key to her house, and changing clothes at her house. The alleged mistress further testified they take long walks together, she visited Husband's mother in the hospital with him, and they talk on the phone on a regular basis.
The court noted in its order that "[a]lthough [Husband] and [his alleged mistress] denied an adulterous relationship, the court [did] not find their denials credible." The court explained that Husband's truck was observed at the alleged mistress' residence on at least two occasions, the alleged mistress testified Husband stayed overnight at her home on two separate occasions, and Husband lived about ten minutes away so there was no reason for him to stay at her house. Regardless, the court found the parties had been separated in excess of one year; therefore, the court granted Wife a divorce on the statutory ground of one year's continuous separation, not on the ground of adultery. We find Husband failed to meet his burden of showing this court the preponderance of the evidence is against the finding of the family court. See Stoney, 422 S.C. at 595, 813 S.E.2d at 487 (...
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