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Proof of adultery as a ground for divorce must be clear and positive, and the infidelity must be established by a clear preponderance of the evidence. A preponderance of the evidence is evidence which convinces as to its truth. Because of the clandestine nature of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses is rarely possible, so direct evidence is not necessary to establish the charge.
Coleen Mick-Skaggs filed for divorce in December 2009 on the ground of William Skaggs' adultery. William denied cheating on Coleen, and counterclaimed. William subsequently amended his pleadings to request a divorce based on one year's continuous separation. To support his adultery claim, William introduced certain messages sent from Coleen’s phone. He also called William Russo, his co-worker and friend to support his allegations. At the conclusion of Russo’s testimony, William sought to introduce into evidence several photographs taken by Russo, allegedly showing Coleen’s infidelity. The family court admitted the photographs over Coleen’s objections. During trial, Coleen requested alimony, claiming that she and William both worked their entire marriage until she was forced to retire from her position as a paralegal due to her deteriorating physical condition. William questioned the extent of Coleen’s disability, highlighting how she continued to ride horses and compete in horse shows after quitting work and applying for disability benefits. At the conclusion of all the testimony, the family court granted the parties a divorce based on one year's continuous separation, and stated that uncorroborated evidence of adultery on both sides existed. The family court further denied Coleen’s claim to alimony, holding that she was barred from receiving alimony because of adultery. Coleen appealed, arguing that the family court should have granted her a divorce based on the husband's adultery. Coleen further contended that the family court erred in denying her request for alimony because her husband did not sufficiently demonstrate she committed adultery.
The Court noted that proof of adultery as a ground for divorce must be "clear and positive," and the infidelity must be established by a clear preponderance of the evidence. A 'preponderance of the evidence' was evidence which convinced as to its truth. Because of the "clandestine nature" of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses was rarely possible, so direct evidence was not necessary to establish the charge. Accordingly, adultery may be proven by circumstantial evidence. In this case, the Court held that both the wife and the husband presented a clear preponderance of the evidence by way of circumstantial evidence that the other engaged in adulterous conduct during the parties' marriage. Hence, modification of the family court's holding as it pertained to the grounds for divorce and the granting of a divorce to both parties based on adultery was appropriate. Anent the second issue, the Court found that the family court’s decision to deny alimony to the wife was proper, noting the doctrine enunciated in Griffith, 332 S.C. at 642, 506 S.E.2d at 532, which held that the establishment of adultery as a defense to alimony was a bar to all alimony and required the reimbursement of court-ordered temporary alimony. The Court further refused to reverse the decision of the family court based on the wife’s allegation of error in permitting the husband to introduce certain photographs into evidence. According to the Court, in order to justify reversal based on the admission or exclusion of evidence, the complaining party must establish both error and resulting prejudice. In this case, the Court failed to see how the wife was prejudiced by the admission of the photographs, which, admittedly had poor quality. Accordingly, judgment was affirmed in part and affirmed, as modified, in part.