Gilmartin v. GilmartinÂ
263 N.C. App. 104, 822 S.E.2d 771 (2018)
Rule of Law:
An appellant who fails to provide a complete trial transcript for appellate review waives any arguments concerning the sufficiency of the evidence. For the affirmative defense of condonation to bar a claim of marital fault, the accused spouse must prove the complaining spouse had full and continuing knowledge of the misconduct and voluntarily resumed the marital relationship; deception by the offending spouse negates condonation.
Facts:
- The parties, Husband and Wife, married in 2006 and had one child.
- Early in the marriage, Wife discovered Husband was addicted to pornography and expressed her disapproval.
- Throughout the marriage, Husband engaged in a pattern of using pornography, soliciting women online for sexual encounters, and had two affairs in 2008.
- Husband sent a nude picture of Wife to a co-worker without her consent.
- When confronted by Wife, Husband would initially deny his conduct, then become angry, then apologize and promise to stop, creating a repeated cycle.
- Husband actively deceived Wife into believing he had ceased his addictive behavior, though he never did.
- Wife suffered a devastating effect on her self-esteem due to Husband's conduct and began seeing a therapist.
- The parties separated in June 2016 after an argument where Husband stated he hated Wife and their marriage was over.
Procedural Posture:
- Plaintiff-Wife filed a complaint against Defendant-Husband in trial court for alimony, child custody, child support, and equitable distribution, alleging marital misconduct.
- Husband filed an answer and counterclaimed for child custody, child support, and equitable distribution.
- The trial court held a hearing on the claims for equitable distribution and alimony.
- The trial court entered an order requiring Husband to pay Wife $1,100 per month in alimony for 48 months, finding that Husband had committed marital fault.
- Husband (appellant) appealed the alimony order to the North Carolina Court of Appeals. Wife is the appellee.
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Issue:
Does a spouse condone the marital fault of indignities, such as ongoing pornography addiction and online solicitations, by remaining in the marriage when the offending spouse continuously deceives them about the extent and continuation of the behavior?
Opinions:
Majority - Stroud, Judge
No. A spouse does not condone marital fault by remaining in the marriage when the offending spouse is actively deceiving them about the continuation of the misconduct. The court affirmed the trial court's alimony order. First, the court held that all of Husband's arguments regarding the sufficiency of the evidence for the alimony award were waived because he failed to provide a complete trial transcript. An appellant bears the duty to provide the appellate court with all materials necessary for review, and without the full transcript, the court must presume the trial court's findings of fact were supported by competent evidence. Second, regarding marital fault, the court rejected Husband's defense of condonation. Condonation is an affirmative defense requiring the party asserting it (Husband) to prove the other party (Wife) had full knowledge of the misconduct. While Wife may have known about two affairs in 2008, the trial court's finding of fault was primarily based on the separate marital fault of indignities—Husband's ongoing, addictive use of pornography and online solicitations. The evidence showed Husband repeatedly deceived Wife about this behavior, promising to stop but continuing surreptitiously. Since Wife did not have full knowledge of the ongoing indignities, and objected whenever she discovered them, she could not have legally condoned them.
Analysis:
This decision reinforces two key principles. Procedurally, it underscores the critical, non-delegable duty of an appellant to provide a complete record for review; failure to do so is fatal to any arguments based on the trial evidence. Substantively, the case clarifies the application of the condonation defense in the context of ongoing, concealed misconduct. It establishes that a spouse's efforts to preserve a marriage based on promises of reform do not constitute condonation when the offending spouse is engaged in active deception. The ruling distinguishes between separate types of marital fault, affirming that condoning one past act (like an affair) does not amount to a blanket condonation of other, ongoing misconduct (like indignities) that is being hidden.
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