One portion of this opinion was substantially modified on February 25, 2015: Refiled opinion in Srivastava makes revisions to equitable distribution ruling.

The December 23, 2014 Court of Appeals opinion in Srivastava v. Srivastava has an interesting analysis on the ability to pay as a factor in an award of attorney’s fees in family court actions and (at least to me) an indecipherable analysis on the doctrine of condonation. It continues a recent trend of the Court of Appeals rejecting a family court’s credibility determinations.

Here the family court rejected Wife’s argument that her adultery had been condoned, and therefore denied her alimony, and further ordered her to pay $50,000 in Husband’s attorney’s fees.  She appealed, raising seven issues. The Court of Appeals refused to address two issues related to child support because, in the family court, Wife failed to raise one issue and failed to obtain a ruling on the other issue.

The Court of Appeals reversed and remanded the attorney fee issue, noting that $50,000 represented approximately 90% of Wife’s annual income and further noting that the case of Rogers v. Rogers, 343 S.C. 329, 334, 540 S.E.2d 840, 842 (2001) reversed an award of attorney’s fees that represented approximately 16% of a wife’s annual income as being excessive. It determined “the income-to-attorney’s fees ratio makes it apparent that the family court did not sufficiently consider each party’s ability to pay, their respective financial conditions, and the effect of the award on each party’s standard of living” and “Husband earns a substantially higher annual income than Wife, which further illustrates the family court’s failure to adequately address these factors.”

In finding Husband had condoned Wife’s adultery the Court of Appeals explicitly rejected the family court’s determination that Husband was credible and Wife was not credible on this issue. This is the third time in the past decade that the Court of Appeals has rejected a family court’s credibility determinations. Prior to McCrosson v. Tanenbaum, 375 S.C. 225, 652 S.E.2d 73 (Ct.App.2007), a’ffd as modified, 383 S.C. 150, 679 S.E.2d 172 (2009), the appellate courts had never rejected a family court’s credibility determinations. Last year, in Ward v. Washington, 406 S.C. 249, 750 S.E.2d 105 (Ct. App. 2013), the Court of Appeals reversed a family court’s contempt finding that was based, in part, by the family court’s determination that the mother was not credible.

A family court’s credibility determinations have typically been the area where the appellate courts show the greatest deference to the family court. “[A]ppellate courts should be mindful that the family court, who saw and heard the witnesses, sits in a better position to evaluate credibility and assign comparative weight to the testimony. Because the appellate court lacks the opportunity for direct observation of the witnesses, it should accord great deference to trial court findings where matters of credibility are involved.” Marquez v. Caudill, 376 S.C. 229, 239, 656 S.E.2d 737, 742 (2008) (citations omitted). Savvy family court attorneys and judges will load final orders with credibility determinations to reduce the likelihood of the order being overturned on appeal. This recent willingness of the Court of Appeals to reject a family court’s credibility determinations should encourage appellate lawyers to challenge such determinations if evidence in the record demonstrates a lack of credibility by the party the family court found credible or demonstrates credibility by the party the family court found lacked credibility.

In Srivastava, the Court of Appeals found Husband had condoned Wife’s adultery because the parties had resumed cohabitation for fourteen months after Husband learned of Wife’s adultery. The Court of Appeals held that Wife’s frequent absences from the home for travel and vacation during this period did not mean the parties were not cohabiting, as the parties intended these absences to be temporary. The Court of Appeals appeared to give little weight to the infrequency or absence of “marital intimacy,” as it believed the evidence demonstrated Husband’s intent to forgive Wife her adultery. It gave much weight to an email Husband sent Wife during this period, especially the language, “At no point in this turmoil . . . have [I] stopped loving you or dreaming of our future together.”

In finding the adultery was condoned the Court of Appeals focused on Husband’s intent and indicated Husband intended to forgive Wife. There is very little in the Court of Appeals’ opinion indicating that Wife’s desire to reconcile was sincere. Because the Court of Appeal founds Wife’s adultery had been condoned it remanded the consideration of alimony back to the family court for reconsideration.

I have blogged previously regarding the difficulty of understanding South Carolina’s approach to the doctrine of condonation and this opinion does little to clarify my confusion. A policy that appears to allow an insincere spouse to dupe a loving spouse into condoning adultery is simply not just.

The Court of Appeal further found that Wife’s “looking for company” on JDate after leaving her Husband was insufficient evidence of adultery to bar her from alimony, as “Husband has not offered proof that anything more than an informal ‘coffee meeting’ occurred during these ‘dates.’”

On equitable distribution the Court of Appeals rejected Wife’s claims that the family court “gave excessive weight to (1) her ‘indiscretion,’ (2) the $45,360 ‘gift’ Wife gave to her mother, and (3) the unauthorized $16,626 withdrawal from a marital account while the divorce action was pending.” The Court of Appeals affirmed the family court’s finding that this “gift” to her mother, done while her affair was ongoing, “fraudulently and purposely reduced the marital estate to her advantage in contemplation of divorce.” One might think Wife’s actions would impact her credibility, and that this would cause the Court of Appeals to give greater deference to the family court’s credibility determination–but apparently it didn’t.

However the Court of Appeals still remanded the issue of equitable distribution back to the family court. It did so, in part, because the reconsideration of alimony could be a factor in equitable distribution. However it also did so because the family court’s equitable distribution award left Wife with mostly illiquid assets, especially a retirement account. The Court of Appeals further noted that the family court failed to consider the tax consequences of awarding Wife these retirement funds when Husband was getting to keep non-taxable equity in a marital home.

Prior case law, specifically Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002) and Ellerbe v. Ellerbe, 323 S.C. 283, 473 S.E.2d 881 (Ct.App.1996), held that it was error to consider the tax consequences of an award of retirement funds in equitable distribution when no sale or liquidation is contemplated. Perhaps Srivastava is distinguishable because Wife may have needed to liquidate these retirement funds immediately if she was to have any liquid assets.

“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.

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[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

Condonation (a legal term meaning “conditional forgiveness”) is a powerful defense to a fault divorce in South Carolina.  If proven, condonation revives an alimony claim despite a spouse’s adultery and notwithstanding South Carolina’s statutory bar [S.C. Code Ann. § 20-3-130(A)] to awarding alimony to an adulterous spouse.  See, Grubbs v. Grubbs, 272 S.C. 138, 140, 249 S.E.2d 747, 749 (1978).

The definitions of condonation are confusing but basically condonation requires two elements: knowledge of the spouse’s improper behavior and continued cohabitation and marital intimacies after obtaining that knowledge.

As a defense in a divorce action, condonation means forgiveness, express or implied, by one spouse for a breach of marital duty by the other.  More specifically, it is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. To establish condonation, there generally must be proof of reconciliation, which implies normal cohabitation of the husband and wife in the family home.

Nemeth v. Nemeth, 325 S.C. 480, 481 S.E.2d 181, 185 (Ct.App. 1997) (citations omitted)

One of the essential elements of condonation is the forgiving spouse’s knowledge, Either (sic) actual or presumed, of the offense alleged to have been forgiven or condoned… Condonation may be presumed from cohabitation; and lapse of time, or a continuance of marital cohabitation with knowledge of the offense, raises a presumption of condonation.

Grubbs, supra.  In Grubbs the Supreme Court found condonation despite husband’s denials of knowledge regarding his wife’s past adultery based on ten years of continued cohabitation after her adultery occurred.

The concept of “presumed knowledge” of a spouse’s adultery based on continuous cohabitation is one of numerous ways the law of condonation is unclear in South Carolina.  How long do spouses have to live together after one spouse’s adultery for this knowledge to be presumed? How long do the spouses need to resume cohabitation for the adultery to be condoned?  How much knowledge of the fault is required for it to be condoned? Does the condoning spouse need to know about all the adulterous relationships for adultery to be condoned or just the most recent one? [In two unpublished opinions in the case of Powell v. Powell, the Court of Appeals indicated full knowledge was required but the Supreme Court then said full knowledge wasn’t the correct standard; because both opinions are unpublished they cannot be cited as the “law” of condonation and neither opinion cited any authority to support its view of the full knowledge issue] Because these issues are unsettled in South Carolina law, the general public’s beliefs surrounding condonation are often inaccurate.

Which leads to the interesting case of McCrosson v. Tanenbaum, 375 S.C. 225, 652 S.E.2d 73 (Ct.App.2007), a’ffd as modified 383 S.C. 150, 679 S.E.2d 172 (2009).  In that case Ms. Tanenbaum apparently attempted to create condonation of her adultery by, in the midst of their divorce litigation, going over to her husband’s house, confessing to some, but not all, of her adultery, having sex, staying the weekend, and then leaving, never to return.  Dr. McCrosson testified that after the parties had disrobed and he was about to engage in intercourse, his wife giggled and said, “I guess this takes care of Max [one of her paramours].”  Ms. Tanenbaum denies this.  The tone of the Court of Appeals opinion paints Dr. McCrosson as a spouse who remained in love with his wife throughout the separation, desiring of reconciliation almost to the end.  In contrast, it paints Ms. Tanenbaum as a schemer, lying about her numerous affairs while trying to avoid the consequences of these affairs.  If the Court of Appeals’ portrayal is true, Ms. Tanenbaum’s attempted “reconciliation” must have been emotionally wrenching for her husband.

Because Ms. Tanenbaum engaged in other affairs, the Court of Appeals never needed to reach the issue of whether this one sexual encounter constituted condonation.  One hears rumors of attorneys counseling their adulterous clients to go back and have sex with their spouses once during the marital litigation to restore their entitlement to alimony.  Such rumors are always secondhand; that is, no one I’ve talked to has ever actually heard an attorney admitting to providing such counsel, they simply hear stories that such counsel is being provided.  If these rumors are true it says something hugely repellant about any attorneys giving this advice (and any clients who actually follow it).  I can’t believe that such actions would constitute condonation–there’s no intent to resume cohabitation–but given the lack of clarity in South Carolina’s condonation law one cannot be sure.  And, given some human beings’ capacity for greed and venality, until the law is absolutely clear, such shamelessly-brazen bump-’n-run sex is likely to remain part of our culture.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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