Court of Appeals finds adultery by both spouses and changes ground for divorce

N.B., on August 1, 2014 the Court of Appeals refiled its opinion and simply affirmed the family court’s no-fault ground for divorce: Court of Appeals reconsiders its decision and reinstates no fault divorce.  On October 1, 2014, it modified it a second time: Third time’s a charm?

In the extremely odd May 14, 2014 opinion of Mick-Skaggs v. Skaggs, the South Carolina Court of Appeals modified the grounds for divorce from one year’s separation to mutual adultery but otherwise left the family court’s order intact.

At trial both parties alleged adultery against the other and Wife sought alimony. The trial court denied both parties’ requests for a divorce on the ground of adultery because it found neither party “corroborated” their adultery claim. However it found that adultery did not have to be corroborated to act as a bar to Wife’s alimony claim, and it found sufficient evidence of Wife’s adultery to deny her alimony. It also denied her claim for attorney’s fees. It granted the parties a divorce on the ground of one year’s continuous separation.

Wife appealed these issues along with the admission of poor quality photographs that allegedly documented her paramour spending the night.

On the adultery issue, the Court of Appeals noted that the requirement of adultery corroboration “may be relaxed when it is evident that collusion does not exist,” such as in this case “as evidenced by the contested nature of the divorce.” It additionally found that both parties had actually corroborated their claim of adultery sufficient to meet the requirements for a divorce. In fact, the evidence of each party’s adultery was so strong that it is hard to understand why the family court judge had not found it corroborated.

The evidence against Wife:

• A text message from her phone evincing a desire to engage in extramarital sex
• Being seen in public by two different witnesses at a bar with her head on a man’s lap, kissing him, and otherwise acting affectionately
• That same man following wife to her home that night in a separate car and spending the night

The evidence against Husband:

• Despite his denial that he committed adultery, his reference during cross-examination to one woman as “the lady I had an affair with” and his admission that he had “feelings” for her
• His step-daughter’s testimony that he told her he was seeking another woman’s “comfort” because Wife would no longer sleep with him
• Testimony that Husband publicly displayed affection for another woman by touching and rubbing the lower part of her back underneath her shirt
• Testimony by a private investigator that Husband and a woman entered his barn late in the evening multiple times over a relatively short period of time along with testimony from the step-daughter that Husband was living in the barn during this time

Since the Court of Appeals found sufficient evidence against Wife to establish adultery, it affirmed the denial of her alimony claim. Because it affirmed the denial of her alimony claim, and because she failed to include her attorney’s fees affidavit or either party’s financial declarations in the record on appeal, it also affirmed the denial of her attorney fee claim. As it was impossible to discern what the photographs at issue actually depicted, the Court of Appeals held Wife failed to show both error and resulting prejudice sufficient to justify reversal.

However the Court of Appeals changed the ground for divorce from one year’s separation to both parties’ adultery. This is curious for two reasons. First, the granting of the divorce on a ground that neither party contested–one year’s separation–moots the question over whether divorce should have been granted on a different ground. Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (Ct. App. 1987). Second, it would appear each party had a valid recrimination defense to adultery based upon the other’s adultery and, therefore, neither party should have been granted an adultery divorce. The Court of Appeals’ decision to affirm every issue but to change the divorce from a no-fault ground to a mutual fault ground is simply inexplicable.

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