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2008-MO-038 - Powell v. Powell

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Linda Lee Henderson Powell, Petitioner,

v.

James Kevin Powell, Respondent.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal From McCormick County
 C. David Sawyer, Jr., Family Court Judge


Memorandum Opinion No. 2008-MO-038
Heard June 11, 2008 – Filed September 8, 2008


REVERSED


Timothy E. Madden and Reid T. Sherard, both of Nelson Mullins Riley & Scarborough, of Greenville, for Petitioner.

Thomas M. Neal, III, of Columbia, for Respondent.


PER CURIAM:  We granted a writ of certiorari to review the Court of Appeals’ opinion in Powell v. Powell, Op. No 2005-UP-595, S.C. Ct. App. filed Nov. 21 2005).   We reverse. 

FACTS

This is a divorce action in which Wife filed a complaint seeking a divorce on grounds of adultery.  After a three day trial, the family court granted Wife a divorce based on Husband’s adultery.  The family court awarded Wife $4,000 per month in alimony and apportioned the marital property, sixty-eight percent to Wife and thirty-two percent to Husband.  Additionally, the family court ordered Husband to maintain Wife’s medical insurance, maintain a life insurance policy naming Wife as an irrevocable beneficiary to secure his alimony obligation, pay Wife $30,000 in attorney’s fees, and pay $9,000 for Wife’s expert witness.   

The Court of Appeals affirmed in part, and reversed in part.  Taking its own view of the preponderance of the evidence, the Court of Appeals found the family court erred in granting Wife a divorce on the ground of Husband’s adultery.  It held Husband had not condoned Wife’s adultery, and found Husband had established the defense of recrimination to Wife’s request for a divorce based on adultery.  The Court of Appeals modified the decree to grant the parties’ divorce on the ground of one year’s continuous separation. 

Since it found Wife had not proved Husband condoned her adultery, the Court of Appeals held she was barred from receiving alimony.  Accordingly, the family court’s award of alimony, its order requiring Husband to maintain Wife’s health insurance coverage, and its order requiring Husband to maintain life insurance to secure the alimony, were reversed.  The award of attorney’s fees and costs to Wife was remanded to the family court.  We granted certiorari.

ISSUE[1]

Did the Court of Appeals err in reversing the family court’s holding that Husband condoned Wife’s adultery?

DISCUSSION

Wife contends the Court of Appeals erred in reversing the family court’s holding that Husband had condoned her adultery, claiming it failed to give the family court’s finding due deference, particularly with reference to matters of credibility.   We agree.

In appeals from the family court, the appellate court has the authority to correct errors of law and to find facts in accordance with its own view of the preponderance of the evidence.  Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005); Miller v. Miller, 299 S.C. 307, 311, 384 S.E.2d 715, 717 (1989).  However, this broad scope of review does not require this court to disregard the family court’s findings.  Appellate 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, 656 S.E.2d 737 (2008); Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344 (Ct.App.1998).  “[W]here there is disputed evidence, the appellate court may adhere to the findings of the family court. . . .  Because the family court is in a superior position to judge the witnesses’ demeanor and veracity, its findings should be given broad discretion. . . . Furthermore, the appellate court ‘should be reluctant to substitute its own evaluation of the evidence . . . for that of the [family] court.’”  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  (Emphasis supplied; internal citation omitted). 

Condonation is the forgiveness, either express or implied, of a prior matrimonial offense by one spouse for a breach of marital duty by the other on the condition that it not be repeated.  It is primarily a state of mind, the existence of which may appear either from the language used, from conduct, or both.  Wilson v. Wilson, 274 S.C. 236, 262 S.E.2d 732 (1980); McLaughlin v. McLaughlin, 244 S.C. 265, 136 S.E.2d 537 (1964).  Condonation may be presumed from cohabitation; and a lapse of time, or continuance of marital cohabitation with knowledge of the offense, raises a presumption of condonation.  Although this presumption may be rebutted by evidence of the accompanying circumstances, the burden of rebutting it is on the plaintiff.  McLaughlin

It is undisputed here that both parties engaged in adulterous relationships.  The sole issue is whether Husband condoned Wife’s adultery, and if not, whether he proved the defense of recrimination, as a bar to Wife’s receipt of alimony.  The family court held as follows:

Husband claims Wife committed adultery with Ray Wright in about 1997.  At trial, Husband contended he first learned of Wife’s adultery at the deposition of Wife taken in this case on September 5, 2001.  However, in his original, pro se Answer and Counterclaim, Husband alleged Wife committed adultery with Mr. Wright.  In this affidavit he filed at the temporary hearing, Husband swore Wife “became involved in an adulterous affair with Ray Wright.”  At his own deposition, prior to the deposition of Wife, Husband maintained he believed Wife committed adultery with Mr. Wright based on a telephone conversation he had with Mrs. Wright.  Wife credibly testified at trial that Husband confronted her about Mr. Wright in about 1997.  It was clear to Wife that Husband believed she had committed adultery with Mr. Wright and Husband told Wife to “take care of it.”  Therefore, even if Husband met his burden of proof and appropriately corroborates Wife’s adultery, Wife provided through clear and convincing evidence that any adultery committed by her was condoned and forgiven by Husband prior to the separation of the parties and prior to the commencement of Husband’s adulterous relationship with Ms. Marlett. 

The Court of Appeals reversed the finding of condonation, finding Husband’s allegations that he believed Wife had engaged in an adulterous affair were not tantamount to “full knowledge” of the affair.[2]  The Court of Appeals found that, prior to Wife’s deposition, Husband had only a suspicion that Wife engaged in an adulterous affair.  

Although we are mindful that an appellate court may take its own view of the preponderance of the evidence, under the limited factual circumstances presented, we find the Court of Appeals erred in substituting its own view of the evidence.  Husband testified that although he believed Wife had had an affair, this belief was not confirmed until the time of Wife’s deposition.  The family court held, “Wife credibly testified at trial that Husband confronted her about Mr. Wright in about 1997.  It was clear to Wife that Husband believed she had committed adultery with Mr. Wright and Husband told Wife to “take care of it.”   The family court, which heard and saw the witnesses, was in the better position to assess the credibility of the parties and specifically found Wife’s testimony credible.  Given these facts, we find the Court of Appeals erred in substituting its own view of the evidence on the issue of witness credibility.  Accordingly, we reverse the Court of Appeals’ holding, and reinstate the order of the family court. 

REVERSED. 

TOAL, C.J., MOORE, WALLER, PLEICONES, JJ., and Acting Justice Peter L. Fuge, concur.


[1]  We need address only Wife’s first issue.

[2]  In holding Husband did not condone Wife’s conduct because he did not have “full knowledge” of the affair, the Court of Appeals employed a standard of “knowledge” which is not consistent with our established law of condonation.  Accordingly, the Court of Appeals’ holding based on this application of a heightened standard is reversed.