Smith v. Smith
| Decision Date | 04 October 1991 |
| Citation | 599 So.2d 1182 |
| Parties | Victoria Ann SMITH v. Dwight Lee SMITH. 2900330. |
| Court | Alabama Court of Civil Appeals |
E. Ray McKee, Jr., Huntsville, for appellant.
William K. Bell of Lammons and Bell, Huntsville, for appellee.
Victoria Smith and Dwight Smith were married on August 22, 1981, and separated in late February 1990. On June 5, 1990, the wife filed a complaint for divorce, alleging incompatibility and requesting custody of the parties' three minor children, who were ages 2, 6 and 8 years. On October 5, 1990, the wife filed a motion to amend her complaint to allege that the husband had committed adultery and had transmitted a sexual disease to her contracted by his adultery and to seek $200,000 as compensatory and punitive damages.
On October 23, 1990, the husband counterclaimed for divorce, alleging adultery on the part of the wife.
At the wife's deposition on October 29, 1990, she refused to answer certain questions about her sexual activity. On considering the wife's motion to amend, and the husband's motion to compel the wife's answers to certified questions by deposition, the trial court ordered the wife to resubmit to oral deposition, and that upon her assertion of her privilege against self-incrimination, her motion to amend complaint would be subject to dismissal. Upon the retaking of her deposition, the wife asserted her privilege, and, subsequently, the trial court denied her motion to amend.
Following an ore tenus proceeding, the trial court granted the husband a divorce on his counterclaim on the ground of adultery on the part of the wife and, among other things, granted custody of the three minor children to the husband. The wife appeals.
The issues raised by the wife on appeal are whether there was sufficient evidence presented to the trial court to grant a divorce on the grounds of adultery, and whether the trial court committed an abuse of discretion by injecting religious bias in awarding custody, by ordering her to pay child support, and by imposing too severe restrictions on her during visitation periods.
As to the first issue, this court has held that:
Rowe v. Rowe, 575 So.2d 584, 586 (Ala.Civ.App.1991).
The evidence before the trial court included events before and after the wife's June 5, 1990, filing of her complaint for divorce alleging incompatibility. The wife cites Hilley v. Hilley, 275 Ala. 617, 157 So.2d 215 (1963), and asserts that any evidence of adultery on the part of the wife after the filing of her complaint cannot be competent proof of adultery on which to base the granting of the divorce. In Hilley, the wife filed for divorce on the grounds of cruelty. The husband answered, and as a defense to her action, alleged that the wife had committed adultery, which would bar her from the relief of divorce due to his acts of cruelty. Our supreme court held in Hilley that evidence of adultery by the wife after the date she filed her complaint for divorce is not relevant or admissible to sustain the allegation of adultery committed prior to the filing of the complaint and of which no proof has been shown. In other words, to defend against acts of cruelty committed before the complaint was filed, the husband must prove the wife's adulterous act was committed before the complaint was filed. Hilley.
However, when adultery is alleged in the complaint, incidents of adultery subsequent to the filing of the divorce petition are admissible to corroborate evidence of adultery prior to the date of filing, but the subsequent incidents cannot be the sole basis to grant the divorce. Vail v. Vail, 360 So.2d 985 (Ala.Civ.App.1977). In Vail, adultery was alleged in the initial complaint, and in Hilley, it was alleged in an answer as a defense to the initial complaint. We find this case to be distinguishable since the counterclaim, alleging adultery on the part of the wife, was not filed until October 23, 1990, some four and one-half months after the wife's complaint alleging incompatibility was filed. Therefore, since the parties were still married, any evidence of adultery on the part of the wife up to October 23, 1990, is competent evidence for the trial court to consider. Any evidence of adultery committed after October 23, 1990, would be relevant to proving adultery only if competent proof of adultery prior to October 23, 1990, had already been shown and then only to corroborate that evidence. Hilley; Vail. Otherwise, any husband or wife could simply file a complaint for divorce, and, then, he or she would be able to openly commit adultery, and the other party would be unable to obtain a divorce by counterclaim on the grounds of adultery unless he or she had competent proof of adultery before the initial filing.
The evidence before the trial court in support of a finding of adultery on the part of the wife was as follows.
Susan Ruff, a friend of the wife's, testified that in September of 1989, the wife and the husband came to her home to eat dinner. Mrs. Ruff testified that she and the wife went for a walk after dinner and that the wife said she had met somebody new--a new man in her life, and that she was contemplating having an affair with this man. Mrs. Ruff also testified that, after Christmas of 1989, the wife brought up Mike Barth's name often. In fact, Mrs. Ruff testified that the wife spoke of how she found Mike Barth to be attractive. Mrs. Ruff also testified as to a conversation that she and the wife had prior to September in which the wife said her biggest temptation in life was fidelity within a marriage.
The husband testified that in December of 1989, he noticed changes in his wife's behavior. He testified that often he would call home and nobody would answer the phone and, that when he called back, he would discover that his wife and children had been next door at a house being built by the wife's alleged paramour, Mike Barth. He testified that in February of 1990, the wife told him that she wanted out of the marriage and that she wanted to start over with someone else. About one week after the separation, when the husband questioned the wife about Mike Barth, she admitted that they did have a relationship. However, the wife told him that she would end the relationship because, at that time, they were seeing a marriage counselor.
The wife's relationship with Barth obviously did not end. Undisputed evidence before the trial court showed that Mike Barth was at the parties' marital residence continuously after the separation. In fact, not only did the husband testify that every time he went to the house Barth was there, but the wife also testified that Barth had been at the marital residence every day since June. Her testimony was also that Barth left the house each day sometime between 11:30 p.m. and 2:30 a.m.
Further, the wife testified that she, her children, and Mike Barth went on overnight trips together, the first one being to Joe Wheeler State Park about June the seventh or eighth. That particular weekend would have been the weekend following the week that the wife filed the divorce case against her husband. The wife also testified that she, her children, and Barth went to Lake Guntersville sometime around the fourth of July and that they all went to Gulf Shores together in September. When questioned about all of these out of town trips with Barth, the wife said that as of June she did not consider herself a married woman.
We would also point out that the wife had been diagnosed as having...
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