Whetsell v. Whetsell

Decision Date07 March 2007
Docket Number2007-UP-112
PartiesLinda E. Whetsell, Appellant, v. Kermit T. Whetsell, Respondent.
CourtSouth Carolina Court of Appeals

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted January 1, 2007

Appeal From Dorchester County William J. Wylie, Jr., Family Court Judge

Deborah K. Lewis, of Charleston, for Appellant.

James A. Bell, of St. George, and James B. Richardson, Jr., of Columbia, for Respondent.

PER CURIAM

In this appeal from the family court, Linda Whetsell (Wife) appeals the family court's failure to grant her a divorce on the grounds of adultery and desertion. Wife also contends the family court erred in failing to award her alimony and attorney's fees. We affirm in part, reverse in part, and remand.

FACTS

Kermit Whetsell (Husband) and Wife married on June 26, 1971. Toward the end of the marriage, Husband regularly returned home late at night. On July 14, 2002, Husband returned home around four o'clock in the morning, and Wife became upset and asked him to leave. Since that time, Husband and Wife have lived at all times in separate households. On August 29, 2004, Wife filed for divorce on the grounds of adultery, desertion, and one year's continuous separation. Wife also requested alimony and attorney's fees. The parties reached an agreement regarding the division of marital assets and debts.

Pursuant to the agreement, Wife received the marital home, two vehicles, fifty percent of Husband's pension plan, and the parties' time share, which was in foreclosure. Also Wife received fifty percent of Husband's 401(k) account offset by the value of her 401(k) account, which she retained in full. Husband received his share of inherited family property, a 1981 double-wide home, two vehicles, and the remaining funds in his pension and 401(k) plans. Additionally, the parties were solely responsible for the mortgages, taxes, and insurance on their respective assets as well as for their own debts.

At the time of the divorce hearing, Wife was 52 years old and Husband was 54 years old. Wife worked as a medical courier and had gross earnings of $1, 780.72 per month and net earnings of $1, 156 per month. Husband worked as a meter reader and had gross earnings of $3, 144.26 per month and net earnings of $2, 214.91 per month. In 2004, Husband reported earnings of $41, 969.41 and Wife reported earnings of $22 439.25.

At the hearing, Wife testified the marriage had been a roller coaster ride.” The marriage was damaged by Husband's gambling and involvement with pornography. She testified they used to take family trips around the country, but since the separation, her lifestyle was almost null and void” because she did not have much money to [be able to] do anything.” Following the separation, she has been experiencing financial difficulty and has received help from her family to buy food and to pay her phone bill. Further, her brother and sister paid for her to go to a family reunion because she could not afford it. Wife claimed that after their separation, Husband continued to bowl regularly and take trips.

Wife testified she believed Husband had an affair because he was never home. He would sometimes not tell her who he was with, and she testified he told her that he had found someone else. She believed Husband had an affair with Loretta Coker because he is currently living at Coker's residence. As further evidence of Husband's alleged adultery, Wife presented a charge to Flowers and Things” on the parties' joint bank statement, made after their separation, for flowers she neither sent nor received. On cross-examination, Wife acknowledged that on the day she alleged flowers were purchased for $7.50, Flowers and Things credited the account $14.

Wife's niece, Milicent Haynes, testified she saw Husband at a basketball game with Coker. Haynes stated they were not lovey-dovey.” In fact, Husband's grandson was sitting between the two of them. Haynes testified that Husband's daughter had pointed out Coker at the mall as daddy's girlfriend or friend.”

Husband responded that he currently resides in the residence with Coker, her uncle, and her granddaughter. Further, he pays rent of $434 per month. He admitted that he gambled during the marriage and that he still occasionally gambles.

Husband acknowledged that during the marriage, he stayed out until four o'clock in the morning on occasion but claimed Wife knew he was going to see his brother's band. He acknowledged gambling during the marriage and that he still occasionally gambles.

The family court found Wife failed to prove adultery by a clear preponderance of the evidence and granted the divorce on the ground of one year's continuous separation. Based upon the sole finding that neither party was more at fault in causing the breakup of the marriage, the family court denied Wife alimony. Further, the family court ordered the parties to pay their own attorney's fees and costs. The family court approved the parties' agreement and resolved the remaining issues. This appeal followed.

STANDARD OF REVIEW

On appeal from a family court order, this Court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). When reviewing decisions of the family court, we are cognizant of the fact that it had the opportunity to see the witnesses, hear the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character.” DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972); see also Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003) (Because the family court is in a superior position to judge the witnesses' demeanor and veracity, its findings should be given broad discretion.”).

When the evidence is conflicting and susceptible of different inferences, the family court has the duty of determining not only the law of the case, but the facts as well, because it had the benefit of observing the witnesses and determining how much credence to give each one's testimony. Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985); see also Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996) (holding when evidence is disputed, the appellate court may adhere to the family court's findings).

LAW/ANALYSIS
I. Divorce on the Ground of Adultery

Wife argues the family court erred in failing to grant her a divorce on the ground of adultery. We disagree.

[P]roof 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.” Odom v. Odom, 248 S.C. 144, 146, 149 S.E.2d 353, 354 (1966). A preponderance of the evidence” is evidence which convinces as to its truth. DuBose v. DuBose, 259 S.C. 418, 424, 192 S.E.2d 329, 331 (1972). Because of the clandestine nature” of adultery, obtaining evidence on the commission of the act by eyewitness testimony is rarely possible, and direct evidence is not necessary to establish the charge. Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct. App. 1987).

Adultery may be proven by circumstantial evidence, but it must be so convincing as to exclude any other reasonable hypothesis but that of guilt.Fulton, 293 S.C. at 147, 359 S.E.2d at 88. Proof of adultery by circumstantial evidence must establish both a disposition and opportunity to commit the offense. Hartley v. Hartley, 292 S.C. 245, 247, 355 S.E.2d 869, 871 (Ct. App. 1987). Generally, proof must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed.” Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74 (Ct. App. 1985). However, a divorce on the ground of adultery should be denied if proof of the offense is inconclusive following the consideration of all the evidence. Rabon v. Rabon, 289 S.C. 49, 53, 344 S.E.2d 615, 617 (Ct. App. 1986).

Wife's only evidence of adultery is Husband now resides, along with two other individuals, in a house owned by Coker. Husband and Coker also bowl together, occasionally have dinner with one another, and they attend basketball games together. Wife also testified that Husband told her he found someone else. Evidence placing a spouse and a third party together on several occasions, without more, does not warrant the conclusion that the spouse committed adultery. Fox v. Fox, 277 S.C. 400, 402, 288 S.E.2d 390, 391 (1982).

Wife fails to provide convincing evidence of Husband's romantic demonstrations toward Coker. See McElveen v. McElveen, 332 S.C. 583, 598, 506 S.E.2d 1, 8 (Ct. App. 1998) ([T]here is virtually no evidence of a romantic or sexual relationship between the two. The trial judge commented in his final order on the lack of evidence to support a showing of inclination, noting there were no love letters, romantic cards, no hand-holding, hugging, kissing, or any other romantic demonstrations or actions between the two.”). Wife may have demonstrated opportunity for Husband to commit adultery, but she presented no evidence that Husband ever was alone with the alleged paramour, nor any evidence of a romantic relationship between the two.

Accordingly, the family court did not abuse its discretion when it denied Wife's request for a divorce on the ground of adultery.

II. Divorce on the Ground of Desertion

Next, Wife maintains the family court erred in failing to grant her a divorce on the ground of desertion.

We decline to address this issue because it is not preserved for our review. Although...

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