Brown v. Brown
665 S.E.2d 174, 379 S.C. 271, 2008 S.C. App. LEXIS 94 (2008)
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Rule of Law:
Adultery may be established by circumstantial evidence showing a spouse's inclination and opportunity for sexual intimacy, even without direct proof of sexual intercourse. Such a finding of adultery serves as a statutory bar to receiving alimony.
Facts:
- Thomas Lee Brown (Husband) and Gina Marie Brown (Wife) were married in 1982 and had five children.
- Wife developed a close relationship with Chris Craft, who had installed windows in the couple's home.
- Around Christmas of 1996, Husband returned home from church with the children and unexpectedly found Craft at the house with Wife.
- Wife and Craft began secretly meeting for lunch in her car in remote parking lots, where they would kiss and fondle each other.
- Wife admitted that she was in love with Craft, had discussed marriage with him, and desired to have sexual intercourse with him.
- Wife also admitted to kissing Craft dozens of times, permitting him to grope her breasts, and allowing him to fondle her genital area, including touching her "under her panties" on one or two occasions.
- Husband discovered Wife was using a secret cell phone, with the bill sent to her mother's address, to call Craft frequently.
- After Husband confronted Wife about the relationship in 1998, she temporarily ceased contact with Craft but later resumed their secret meetings.
Procedural Posture:
- Thomas Lee Brown (Husband) filed an action for divorce against Gina Marie Brown (Wife) in family court, alleging adultery as grounds.
- Wife filed an answer denying she committed adultery and also filed a third-party complaint against Husband’s parents.
- Following a hearing, the family court found that Wife had not committed adultery.
- The family court ordered Husband to pay Wife $3,197 per month in alimony and awarded Wife a significant portion of her attorney's fees.
- The family court also issued an order for the equitable division of the marital property.
- Husband (appellant) appealed the family court's order to the South Carolina Court of Appeals, challenging the findings on adultery, alimony, property division, and attorney's fees.
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Issue:
Does a spouse's admission to engaging in a secretive, romantic relationship involving intimate physical acts such as kissing and fondling with a third party, short of admitted sexual intercourse, constitute adultery under South Carolina law, thereby barring them from receiving alimony?
Opinions:
Majority - Per Curiam
Yes. A spouse's actions constitute adultery when circumstantial evidence establishes both a disposition to commit the offense and the opportunity to do so, which statutorily bars the adulterous spouse from receiving alimony. The court reasoned that direct evidence of adultery is rarely possible due to its clandestine nature. Therefore, it can be proven by circumstantial evidence of inclination and opportunity. The court found Wife's admissions of being in love with Craft, desiring intercourse with him, and engaging in secretive, intimate acts like kissing and fondling overwhelmingly established her inclination. The repeated, clandestine meetings in her car provided the opportunity. The court explicitly rejected the argument that adultery requires proof of sexual intercourse, citing precedent that 'sexual intimacy is enough.' The court found the evidence of Wife's affair was 'too compelling to be brushed aside' by her claims that her strict moral upbringing prevented the relationship from progressing to intercourse.
Analysis:
This decision solidifies the legal standard in South Carolina that the definition of adultery for divorce purposes is broader than just sexual intercourse. By emphasizing that clear circumstantial evidence of both inclination and opportunity is sufficient, the court lowers the evidentiary bar for proving adultery. This precedent strengthens the position of spouses alleging infidelity, as they do not need 'smoking gun' evidence of the sexual act itself. The ruling reinforces that a pattern of romantic and sexual intimacy can meet the legal definition, which has significant financial consequences, most notably serving as an absolute bar to alimony for the unfaithful spouse.
