What’s “conditional” about the conditional forgiveness in condonation?

Posted Thursday, September 9th, 2010 by Gregory Forman
Filed under Divorce and Marriage, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

“Condonation” is one of the few family law doctrines that appeals to the better angels of our nature.  Allowing one spouse to conditionally forgive the other spouse for misdeeds and take that spouse back upon the condition of future good behavior not only reduces divorce but also allows spouses to act merciful towards each other without being played for a sucker by a habitually unrepentant spouse.

However, the notion of condonation is that it’s supposed to be conditional, not absolute, forgiveness.  Condonation is parole, not a pardon.  Yet, at least as it appears in the past 200 years of South Carolina reported case law, the forgiveness of condonation no longer appears to be conditional.  Condonation appears to be morphing into a different legal doctrine without anyone noticing or commenting.

In my mind, the conditional quality of condonation has two potential attributes. First the doctrine should require lesser proof of subsequent misbehavior to revive the condoned conduct.  Second, the doctrine should impose a harsher consequence for subsequent misbehavior if it revives previously condoned misbehavior.  Yet, since the case of McLaughlin v. McLaughlin, 244 S.C. 265, 136 S.E. 537 (1964), which is where our Supreme Court first explicitly noted that condonation was not absolute but conditional,  where is the evidence that either of these attributes continues to make condonation conditional?  There is not a single reported South Carolina case since McLaughlin in which a spouse was granted a divorce upon lesser proof of subsequent fault because that subsequent fault revived previously condoned fault.  There is not a single reported South Carolina case since McLaughlin in which the court granted the aggrieved spouse greater relief–more alimony, a greater share of the marital estate–due to the revived condoned behavior.  And no matter how much previously condoned behavior is revived by subsequent misconduct, it doesn’t change how divorced an innocent spouse becomes.

Even McLaughlin, which clarified that the forgiveness of condonation is conditional, not absolute, failed to find that Husband’s new misconduct–losing his temper and leaving the room, after which Wife left the next morning–was sufficient to revive previously condoned physical cruelty.  A 1924 case cited by McLaughlin on the issue of condonation’s conditional nature, Cleveland v. Cleveland, 128 S.C. 460, 122 S.E. 500, 501 (1924), rejected Husband’s claim that Wife had condoned his misbehavior by noting “that new offenses occurred continually and had reached a condition where endurance ceased to be a virtue.”  Such “new offenses” appear sufficient to justify Wife’s alimony claim–Cleveland was decided in the days before South Carolina had divorce–even without the revival of any previously condoned behavior.  A 1904 case cited by McLaughlin on that same issue, Levin v. Levin[1], 68 S.C. 123, 46 S.E. 945, 945 (1904), used condonation in a different sense than its contemporary meaning: merely ruling that Husband’s offer to have Wife come back after all his cruel and nauseous behavior was insufficient to create a defense of condonation to Wife’s alimony claim.  Finally, McLaughlin cites an 1815 case that I cannot access, Threewits v. Threewits, 1815, 4 S.C.Eq., 4 Deasus.Eq. 560, to justify the conditional nature of the condonation defense:

To be sure, if a woman forgives ill usage and returns to her husband, on promises of good usage, she shall not afterwards obtain the protection and assistance of this Court, if those promises had been faithfully kept, and she again leaves her husband from caprice; but if there are clear indications of a breach of those promises, and some actual ill usage, she is not bound to wait for extremities as in the first instance, but may depart as soon as she finds the promises violated, and her husband returning to his old bad habits.  She has a right to judge of the future by the past; and the Court will connect the whole of his conduct, in order to form a correct judgment.

As I noted, I don’t have access to Threewits but if one has to go back to 1815 to show how the conditional nature of condonation affects the grounds for divorce if new fault arises, how relevant can the concept be?

A 2010 physical cruelty case, Gorecki v. Gorecki[2], 387 S.C. 626, 693 S.E.2d 419 (Ct. App. 2010) might have been an appropriate situation to discuss how previously condoned behavior lowers the burden of proof for subsequent misconduct to obtain a fault divorce.  In that case, Mrs. Gorecki “ finally decided to leave Husband in September 2005 after he shoved her into a wall, verbally abused her and their grandchild, and then broke her phone when she tried to call for help.” Id. 387 S.C. at 634.  The Gorecki court noted “the numerous instances of abuse, culminating in the September 2005 assault, indicate Husband’s intent to seriously harm Wife, which warrants a divorce based on physical cruelty.” Id. at 634-35.  Yet, rather than using this history of condoned abuse to lower the burden of proof, the Gorecki court held “ the September 2005 assault [is] sufficient to grant Wife a divorce based on physical cruelty.” Id. at 634.  Thus, rather than using the previous abuse to lower Mrs. Gorecki’s burden of proof to obtain a divorce from the September 2005 incident, the Court of Appeals merely held that this incident was, standing alone, sufficient evidence of physical cruelty to grant the divorce.

I have been practicing family law for almost 17 years and issues surrounding condonation are constant.  For this whole time I have been seeking guidance from our appellate courts regarding the conditional nature of condonation.  How much lower is the burden of proof of fault where there has been previously condoned behavior?  If subsequent fault revives condoned behavior, what are the consequences from the multiple fault?   These questions remain unanswered and I would encourage an ambitious young family law attorney to make law on these issues.

In the meantime, if the revival of previously condoned behavior has had no legal consequences in any South Carolina published opinion in almost two centuries, how can condonation be considered conditional, as opposed to absolute, forgiveness?  And if condonation is absolute forgiveness then South Carolina legal doctrine is playing innocent spouses for suckers.


[1]I previous blogged on Levin as an example of Archaic alimony cases

[2] I previously blogged on Gorecki in Court of Appeals clarifies what is proof of physical cruelty and what isn’t proof of adultery

5 thoughts on What’s “conditional” about the conditional forgiveness in condonation?

  1. Greg, My secretary is scanning Threewits for you from the volume that I inherited from my father that he inherited from his father who bought it from the Estate of William Bachman Chisolm, a Charleston lawyer, in 1885 or shortly thereafter. I had it rebound at the Department of Corrections in 1966 while in law school. I scanned the case before asking Rebecca to scan it and it appears that it my have many 21st century issues in a 19th century context.

    1. Thanks for Threewits. Love the early 19th century writing style: florid and full of euphemisms for horrible deeds too vile to be publicly described in an 1815 law book. Since it wouldn’t be until 1895 that married South Carolina women could own property separately from their husband (and wouldn’t be until the 1940’s that they could obtain a divorce) Ms. Threewits needed a trustee to handle her award of separate property. Since it wouldn’t be until 1865 that South Carolina abolished slavery, Mr. Threewits’ property seemed to consist mostly of “negroes.” Definitely wouldn’t see those things in a 2010 appellate opinion.

      Meanwhile Mr. Threewits’ combination of heavy drinking, wife beating, and profane demeanor is timeless. Definitely could see that in a 2010 appellate opinion.

      The culture changes quickly; human nature not so quickly.

      1. Greg, I think that it was the Married Women’s Property Act of 1870 that implemented Article 8 of the South Carolina Constitution of 1867. See Clawson v. Hutchinson, 11 S.C. 232 (1879), a case arising in York County.

        1. Thomas:

          You may be right. Wikipeadia was unclear on when South Carolina implemented the Married Women’s Property Act. I had previously believed it was enacted in 1839 but my limited research didn’t confirm that.

  2. Anne Frances Bleecker says:

    Timely — husband commits adultery throughout 30 year marriage — my client just discovers pretty incredible second life of husband- my client (saint) wife is working with him diligently in therapy — and, both hope for reconciliation — action filed — I have drafted a detailed Temporary Consent Order that specifices that whatever happens with reconciliation (pending dismissing this pending action) her agreement to work with him in counseling and to spend time with him, etc., he will never assert condonation, nor will he do so in any subsequent situation….

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