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Illicit sexual behavior and indignities are separate and independent grounds for marital fault.
On 28 June 2016, plaintiff-wife Tracie filed a complaint against defendant-husband Michael alleging that the parties married in 2006, had one child, and separated in June of 2016. Tracie sought child custody, child support, postseparation support, alimony, equitable distribution, and an injunction to protect certain assets. Michael answered the complaint alleging several affirmative defenses and also counterclaiming for child custody, child support, and equitable distribution ("ED"). On 6 December 2017, the trial court entered an alimony order which requires Michael to pay Tracie $1,100 a month for 48 months.
Did the trial court err when it did not find that Tracie condoned his illicit sexual behavior?
Michael contends that because Tracie was aware of his illicit sexual behavior -- the two affairs in 2008 -- but the parties remained together and had intercourse after 2008, including approximately a month before separation, the trial court erred when it failed to make a finding of condonation of his illicit sexual behavior. But Michael fails to note almost all of the findings of fact regarding fault address indignities, not illicit sexual behavior. The order mentions the 2008 affairs specifically only once, in the last sentence of finding 24. The findings focus mostly on Michael’s addiction to pornography and communications with women online, noting that these were problems "throughout the marriage." Even if it were to be assumed the trial court tacitly found Tracie had condoned Michael’s illicit sexual behavior in 2008, the marital fault of indignities remains. Michael’s argument fails to recognize that he had the burden of proof of condonation for both illicit sexual behavior and indignities, and these are separate and independent grounds for marital fault. Even if the affairs in 2008 were condoned as Michael contends, he did not show condonation of indignities. Here, the trial court's findings of fault are based upon the indignities, and Michael has not directed the court to any evidence of condonation of his addictive use of pornography and seeking other women on social media websites. Instead, the evidence and findings show just the opposite: Michael was deceiving Tracie regarding his continuing use of pornography and online sexual solicitations. Whenever Tracie discovered what Michael was doing and objected, he would first deny and then acknowledge his actions and promise to stop. The fact that Michael and Tracie continued to live together and even have sexual relations would not condone these indignities, since Tracie would have had to have full knowledge of Michael’s continuing pornography use and online solicitations to condone these actions, and a spouse can conduct marital fault only with knowledge of what there is to forgive. Suspicion that the other spouse has committed a matrimonial offense like adultery will not make continued cohabitation amount to condonation. The accused must demonstrate that the complaining spouse had actual knowledge of the marital offense or had facts which would satisfy a reasonably prudent person that the offense had been committed. In addition, it must appear that the complaining spouse not only knew of the marital misconduct, but also accepted it as true. Moreover where the accused spouse is guilty of several acts of marital misconduct and the complaining spouse knows of only one of them, the complaining spouse has condoned only the known misconduct. A spouse might forgive certain acts of adultery with certain people, for example, but not forgive others. The evidence and findings indicate that Michael denied the indignities, and when Tracie confronted him with proof, he would admit what he had done and agree to counseling, but then he stopped the counseling and continued the misconduct, and "[a]t times the plaintiff believed the defendant had changed his ways but he never did and this pattern repeated itself throughout the marriage." The trial court further found that Michael "lied to and deceived" Tracie "throughout the marriage[.]" The evidence supports the trial court's findings of fact regarding indignities, and the trial court did not make any findings regarding condonation of the indignities because Michael did not present any evidence that Tracie ever had sufficient knowledge of his actions to condone them. When Tracie did become aware of Michael’s actions, she objected and asked him to stop, but he continued his behavior surreptitiously.