Ex parte Grimmett

Winston Circuit Court, DR-18-900122; Court of Civil Appeals, 2190277

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

PARKER, CHIEF JUSTICE.

The Winston Circuit Court entered a judgment divorcing Jason Tyler

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Grimmett from April Grimmett^[1] on the ground of adultery by Jason and dividing the couple's marital property. The Court of Civil Appeals affirmed the judgment without an opinion, Grimmett v. Grimmett (No. 2190277, Nov. 20, 2020), ___So. 3d___ (Ala. Civ. App. 2020) (table), and Jason petitioned this Court for certiorari review. This Court issued the writ to examine, among other things, a potential conflict in the law regarding whether adultery committed after a party files for divorce is a ground for divorce. Because the language chosen by the Legislature, specifying adultery as a ground for divorce, does not limit this ground to prefiling conduct, and because this Court's early cases distinguishing between prefiling and postfiling adultery must be read in light of the procedural restrictions of equity practice under which they were decided, we affirm the judgment.

I. Facts

Jason and April met in 2010 or 2011 while Jason, who owned a

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home-construction business, was doing work on a house belonging to April and her then-husband. Jason was also married at that time. Jason and April each obtained a divorce shortly thereafter and, in February 2012, married each other. They began experiencing various marital difficulties within a few years, possibly as early as 2014. Accounts differ as to the cause and nature of the strife, but it seems that it did not arise (at least initially) from infidelity by either party. Evidently, the parties' difficulties resulted in a series of separations and reconciliations, culminating in a final separation in November 2018.

In 2016, Jason met with Alexandra Yap^[2] regarding building a house for her and her husband. Alexandra hired Jason a few months later. He began working on her house in fall 2017 and completed construction in fall 2018. In December 2018, Jason filed for divorce from April on the ground of incompatibility. Alexandra also filed for divorce from her husband. In February 2019, Jason and Alexandra began to have an intimate

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relationship.

On June 11, 2019, less than a week before trial in Jason and April's divorce case, April counterclaimed for divorce; she did not allege adultery by Jason.

At trial, April testified that she had not known about any relationship between Jason and Alexandra until about a month before Jason filed for divorce, when she discovered from telephone-account records that there had been many calls or text messages between Jason and Alexandra. To April, these records bolstered her "gut feeling that something was going on."

Jason was cross-examined about his relationship with Alexandra. He admitted having a sexual relationship with her, but he did not specify whether the relationship became sexual before he filed for divorce from April.

Alexandra did not testify at trial. After trial but before entry of judgment, Jason filed an affidavit of Alexandra in which she averred that she and Jason "did not become intimate and engage in any sexual activity until mid February, 2019," about two months after Jason filed for divorce.

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Toward the end of trial, the judge stated that it was undisputed that Jason had committed adultery. The judge explained that he could not divide the property equally because doing so would be tantamount to condoning Jason's infidelity ("If I split down the middle, I'm saying it's okay to cheat on your wife.... It ain't ever okay to cheat on your wife."). The judge indicated that the marital property would be sold and the proceeds divided "60/40" in favor of April.

The circuit court entered a final judgment divorcing Jason and April on the ground of adultery and dividing the property, not "60/40" but in an itemized way.^[3] On appeal, the Court of Civil Appeals affirmed the judgment in a no-opinion order. Jason filed a petition for a writ of certiorari with this Court, and this Court granted review.

II. Standard of Review

Conclusions of law of a court of appeals are subject to de novo review by this Court. Ex parte Thomas, 54 So.3d 356, 358 (Ala. 2010). Because the petitioner has the burden of demonstrating error by a lower court,

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Ex parte Brown, 26 So.3d 1222, 1225 (Ala. 2009), on certiorari review as on appeal, this Court may affirm for any reason consistent with due process, Ex parte Kelley, 870 So.2d 711, 714 (Ala. 2003).

III. Analysis

Before this Court, Jason raises two primary arguments: (1) the evidence before the circuit court was insufficient to prove that he committed adultery before his divorce complaint was filed, and the Court of Civil Appeals' affirmance of the judgment conflicted with prior decisions articulating the standard of proof for adultery; and (2) adultery committed after the filing of a divorce complaint is not a proper ground for divorce, and the Court of Civil Appeals' affirmance of the judgment conflicted with prior decisions so holding. We will address each argument in turn.

A. Prefiling adultery

Adultery is a statutory ground for divorce in Alabama. § 30-2-1(a)(2), Ala. Code 1975. For purposes of divorce, adultery is voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband. Rowe v. Rowe, 575 So.2d 584, 586 (Ala. Civ. App. 1991).^[4]

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Jason first argues that, as to the period before the filing of his divorce complaint in December 2018, the evidence was insufficient to prove that he committed adultery. April disagrees.

This Court has recognized that adultery is rarely capable of direct proof but that caution is warranted when evaluating circumstantial evidence of adultery:

"It is a fundamental principle of the law of divorce that direct proof of adultery by evidence of eyewitnesses is not required, for, on account of the secret nature of the act, it is seldom susceptible of proof except by circumstantial evidence. However, its stigma is so degrading and humiliating and its legal consequences so serious, that the courts should never accept as sufficient proof of the commission of the act of adultery anything less than circumstances such as would lead the guarded discretion of a reasonable and just man to the conclusion that the act of adultery has been committed."

Rudicell v. Rudicell, 262 Ala. 41, 44, 77 So.2d 339, 342 (1955). "[T]he proof

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must be such as to create more than a mere suspicion, but be sufficient to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference." Maddox v. Maddox, 281 Ala. 209, 212, 201 So.2d 47, 49 (1967).

Two of this Court's cases will suffice to illustrate when evidence is insufficient to meet this standard. In Hilley v. Hilley, 275 Ala. 617, 157 So.2d 215 (1963), a wife visited with her alleged paramour while she was on vacation with her two children. During the trip, she called the husband to get permission to send the children back home by plane. This Court held that these facts were insufficient to prove adultery. In Maddox v. Maddox, 281 Ala. 209, 201 So.2d 47 (1967), a witness saw a wife stop her car at a point north of Cullman. A car occupied by a man was stopped at the same place. The two cars then proceeded to Falkville, and then the wife and the man traveled to Decatur in one car, where they entered a motel. About an hour later, the witness drove by and saw the car still at the motel. Again, this Court held the evidence insufficient. See also Fowler v. Fowler, 636 So.2d 433, 435-36 (Ala. Civ. App. 1994) (holding evidence insufficient when, among other things, husband had made

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numerous and lengthy (almost daily) telephone calls to alleged paramour, including long-distance collect calls, calls at unusual times and from public telephones, calls while he was on business out of state, calls from the parties' lake cabin, and calls while attending an out-of-state football game with the wife; when husband had denied calling alleged paramour; when alleged paramour had visited the lake cabin and the marital residence; when husband had visited alleged paramour's apartment three times and given her flowers and a gift; and when husband had shunned wife in several ways); Turner v. Turner, 210 So.3d 603, 606-07 (Ala. Civ. App. 2016) (holding...