Srivastava v. Srivastava (Lawyers Weekly No. 011-003-15, 15 pp.) (John Geathers, J.) Appealed from Beaufort County Family Court (Peter Fuge, J.) S.C. App.
Holding: Since the evidence indicates that the defendant-husband forgave the plaintiff-wife for having an extramarital affair, and that the parties resumed their marital relationship, the affair does not bar the wife from receiving alimony.
The family court erred in awarding $50,000 in attorney’s fees to the husband, and we remand for reconsideration. We reverse the family court’s finding that the husband did not condone the wife’s adultery; therefore, we remand for reconsideration of alimony. We affirm in part and remand for reconsideration in part the family court’s equitable distribution order. The wife’s allegations of judicial bias are without merit.
As a defense to adultery in a divorce action, “condonation” is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness.
After the husband learned of the wife’s adultery, she ended the affair and did not have another during the parties’ marriage. The parties continued to live together for 14 months (though sleeping in separate bedrooms, as was usual because the husband snored and was “on call a lot”), and they sought marriage counseling. During that time, the husband sent the wife an email which strongly evinced his forgiveness of the wife’s adultery.
We reject the husband’s contention that the wife’s conduct and travels negated evidence of the husband’s condonation under these circumstances. The wife’s travels included brief trips to Paris and Italy, and two months with the children during the summer in New York; however, the wife always returned home after these trips.
It is apparent that the husband condoned the wife’s adultery, and he cannot now revive the marital offense.
Because the family court erred in finding the husband did not condone the wife’s adultery, the wife is not barred from receiving alimony. On remand, the family court should reconsider the issue of alimony.
The family court’s $50,000 award of attorney’s fees to the defendant-husband represented approximately 90 percent of the plaintiff-wife’s gross annual income; moreover, the husband earns a substantially higher income than the wife. It appears that the family court failed to adequately consider the factors set out in E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812 (1992).
Before the wife ended her affair, she transferred $45,360 to her mother. The evidence supports the family court’s determination that the transfer was fraudulent and made in anticipation of divorce. The deduction of the amount of the transfer from the wife’s portion of the marital estate was warranted.
Since the wife withdrew $16,626 more from the parties’ account than the family court had authorized, that amount was also properly deducted from her award.
However, the wife’s portion of the marital estate is substantially tied up in illiquid retirement accounts. She is unable to reach the funds without incurring substantial penalties and tax consequences.
On the other hand, the husband was awarded the marital home and its equity, while also having a significantly greater income. The division of assets reveals the family court did not properly consider the tax consequences or the earning potential of each spouse in its equitable distribution award.
Finally, although we have found error as to certain issues in this appeal, we find the wife’s allegations of judicial bias to be without merit.
Affirmed in part, reversed in part, and remanded.
