Gilmartin v. Gilmartin , 263 N.C. App. 104 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-466
Filed: 18 December 2018
Pasquotank County, No. 16-CVD-473
TRACIE LEE GILMARTIN, Plaintiff,
v.
MICHAEL THOMAS GILMARTIN, Defendant.
Appeal by defendant from order entered 6 December 2017 by Judge Robert
Trivette in District Court, Pasquotank County. Heard in the Court of Appeals 17
October 2018.
Michael P. Sanders, P.C., by Michael P. Sanders, for plaintiff-appellee.
Frank P. Hiner, IV and Brett A. Lewis, for defendant-appellant.
STROUD, Judge.
Defendant appeals from a permanent alimony order. Because defendant has
failed to provide a complete record for review on appeal, we affirm the trial court’s
order on the issues which this Court cannot review without the missing transcript.
As to defendant’s remaining issue regarding marital fault, we affirm.
I. Background
On 28 June 2016, plaintiff-wife filed a complaint against defendant-husband
alleging that the parties married in 2006, had one child, and separated in June of
2016. Wife sought child custody, child support, postseparation support, alimony,
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Opinion of the Court
equitable distrbution, and an injunction to protect certain assets. Husband answered
Wife’s complaint alleging several affirmative defenses and also counterclaiming for
child custody, child support, and equitable distribution (“ED”).
On 27 March 2017, the trial court entered an order addressing child custody,
child support, postseparation support, and uninsured medical expenses; this order is
not at issue on appeal. On 6 December 2017, the trial court entered an alimony order
which requires Husband to pay Wife $1,100 a month for 48 months. Husband appeals
the alimony order.
II. Record on Appeal
Husband first contends “the trial court committed reversible error when it
concluded as a matter of law that [Wife] was entitled to alimony and ordered that
[Husband] pay [Wife] alimony[.]” (Original in all caps.) Husband raises four sub-
arguments based upon findings of fact and conclusions of law regarding Wife’s status
as dependent spouse, judicial notice of financial affidavits, and sufficiency of the
evidence regarding the parties’ accustomed standard of living during the marriage.
Husband also challenges numerous findings of fact as unsupported by the evidence.
Since Husband’s arguments are based upon the sufficiency of the evidence to
support the trial court’s findings regarding various financial aspects of the case, we
must determine whether there was sufficient financial evidence to support the
findings.
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Decisions regarding the amount of alimony
are left to the sound discretion of the trial
judge and will not be disturbed on appeal
unless there has been a manifest abuse of that
discretion. When the trial court sits without a
jury, the standard of review on appeal is
whether there was competent evidence to
support the trial court‘s findings of fact and
whether its conclusions of law were proper in
light of such facts.
An abuse of discretion has occurred if the decision is
manifestly unsupported by reason or one so arbitrary that
it could not have been the result of a reasoned decision.
Kelly v. Kelly, 228 N.C. App. 600, 601, 747 S.E.2d 268, 272–73 (2013) (citations and
quotation marks omitted).
But our record on appeal includes only a portion of the trial transcript, so we
cannot review any issues of sufficiency of the evidence. Husband has waived these
issues on appeal by providing only a portion of the transcript and leaving out portions
relevant to his appeal. It is clear from the transcript that the claims for ED and
alimony were heard on the same day. The trial started with the ED claim and then
the trial court heard the alimony portion of the case.
Our transcript on appeal begins with page 1 -- but in middle of the hearing --
as the court reporter apparently transcribed only part of the hearing. The transcript
begins with Wife’s attorney explaining, “I have a witness here under subpoena, and
he’s had to sleep through the E.D. so if I can go ahead and call him and try to get him
out of here.” (Emphasis added.) The witness gave brief testimony and was released.
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Later, during the testimony and arguments, there were references to the ED portion
of the hearing that had just transpired. For example, Wife’s testimony includes the
following questions and answers:
Q. You testified during the ED portion of this
that you have three children; is that correct?
A. Yes.
....
Q. Did you hear those numbers I read to
Mr.Gilmartin earlier about net profits for the business off
of the tax returns?
A. Yes.
....
Q. And I know we went through this in ED, but I‘m
going to ask you again, did you invest some or all of the
retirement monies that you took out into Bottomline?
A. Yes.
(Emphasis added.) At the end of the hearing, Husband’s attorney began his closing
argument, “May it please The Court and Mr. Sanders. Your Honor, addressing
equitable distribution first.” (Emphasis added.) Thus, it is clear that the trial court
heard the claims of ED and alimony at the same hearing, but Husband provided only
the second portion of the transcript. And most of Husband’s challenges to the findings
of fact as unsupported are based upon the lack of financial evidence that would quite
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logically have been included in the ED portion of the trial, which may be why it was
not repeated in the alimony portion of the trial.
Husband, citing to pages 1-108 of the transcript, the entire transcript but for
the closing arguments, argues, “No financial affidavit was introduced for [Wife] at
trial and, in fact, no exhibits were introduced at the alimony hearing.” But pages 1-
108 are only the alimony portion of the hearing, so we have no way of knowing what
exhibits were introduced or what discussion, if any, occurred about the financial
affidavit during the equitable distribution phase. Husband may not have intended
to misrepresent the record before the trial court to this Court, but because a
substantial portion of the transcript particularly relevant to his argument on appeal
is missing, we cannot review the sufficiency of the evidence.
It is the duty of the appellant to ensure this Court has everything needed for a
proper review of his issues on appeal. See State v. Davis, 191 N.C. App. 535, 539, 664
S.E.2d 21, 24 (2008) (“We note that State’s exhibit 18, the videotaped interview of
K.T., was not included as an exhibit to the record on appeal and was not recorded on
the trial transcript. It is the duty of the appellant to ensure that all documents and
exhibits necessary for an appellate court to consider his assignments of error are part
of the record or exhibits.”). Further, “[a]n appellate court is not required to, and
should not, assume error by the trial judge when none appears on the record before
the appellate court.” State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968).
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Accordingly, we affirm the trial court’s order as to these issues on appeal. See King
v. King, 146 N.C. App. 442, 445-46, 552 S.E.2d 262, 265 (2001) (“Plaintiffs also argue
the trial court erred in entering findings of facts and conclusions of law concerning
damages to Plaintiffs’ property that were not supported by the evidence. Because
Plaintiffs have failed to include a transcript of evidence from the hearing in this matter
or any evidence which would enable this Court to determine whether the trial court’s
findings of fact are supported by competent evidence, we overrule this assignment of
error. Accordingly, the trial court’s findings of fact and conclusions of law concerning
damages to Plaintiffs’ property are affirmed. (emphasis added) (citation and
quotation marks omitted)).
III. Alimony Factors
Husband next challenges the amount and duration of the alimony award.
Husband contends that
the trial court committed reversible error when it ordered
defendant to pay plaintiff alimony in the sum of $1,100.00
per month for forty-eight months when the court did not
have sufficient competent evidence to order alimony in any
amount and the court failed to provide a factual basis for
the duration of alimony?
(Original in all caps.) Again, due to the incomplete transcript, we cannot review the
sufficiency of the evidence. The order on appeal has findings of fact on some of the
alimony factors enumerated in North Carolina General Statute § 50-16.3A(b), and we
must assume they are supported by the evidence. And since findings for a particular
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factor are only required if evidence was presented on that factor, we must also assume
the trial court made findings addressing all of the factors for which evidence was
presented. See generally N.C. Gen. Stat. § 50-16.3A(b-c) (2017) (noting as to the 16
factors the trial “court shall make a specific finding of fact on each of the” “relevant
factors” in subsection (b) only “if evidence is offered on that factor”). The trial court
made findings of fact regarding many of the factors, including “marital misconduct[,]”
“relative earnings[,]” “ages” of the parties, “amount and sources” of income, “duration
of the marriage[,]” and “standard of living of the spouses established during the
marriage[.]” The trial court also concluded, “The award of alimony is equitable
considering all relevant factors, including those set forth in NCGS Section 50-
16.3A(b)” and “[t]he relevant factors support alimony in the amount designated and
for the designated duration.” (Emphasis added.) Again, “[a]n appellate court is not
required to, and should not, assume error by the trial judge when none appears on
the record before the appellate court.” Williams, 274 N.C. at 333, 163 S.E.2d at 357.
And again, we affirm. See King, 146 N.C. App. at 445-46, 552 S.E.2d at 265.
IV. Martial Fault
Husband also contends, “the trial court committed reversible error when it
found that [Husband] committed marital fault even though [Wife] failed to allege a
lack of provocation, [Wife] condoned defendant’s behavior and plaintiff, in her
complaint, failed to allege the nature of the ‘indignities’ she suffered during the
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marriage.” (Original in all caps.) Because marital fault concerns only alimony and
is not dependent upon the financial circumstances of the parties, and we have that
portion of the transcript, we are able to review these issues on appeal.
Decisions regarding the amount of alimony
are left to the sound discretion of the trial
judge and will not be disturbed on appeal
unless there has been a manifest abuse of that
discretion. When the trial court sits without a
jury, the standard of review on appeal is
whether there was competent evidence to
support the trial court’s findings of fact and
whether its conclusions of law were proper in
light of such facts. An abuse of discretion has
occurred if the decision is manifestly
unsupported by reason or one so arbitrary
that it could not have been the result of a
reasoned decision.
One of the factors that a trial court must take into
account in awarding alimony, when relevant, is marital
misconduct. N.C. Gen. Stat. § 50–16.3A(b)(1) (2011).
Marital misconduct includes indignities rendering the
condition of the other spouse intolerable and life
burdensome during the marriage and on or before the date
of separation.
Our courts have declined to specifically define
indignities, preferring instead to examine the
facts on a case by case basis. Indignities
consist of a course of conduct or repeated
treatment over a period of time including
behavior such as unmerited reproach, studied
neglect, abusive language, and other
manifestations of settled hate and
estrangement.
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Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 356, 754 S.E.2d 831, 836 (2014)
(citations, quotation marks, brackets, and footnote omitted).
A. Sufficiency of Allegations in Complaint
Citing Dechkovskaia, Husband argues Wife “must allege a lack of provocation
as to the cause of [Husband’s] alleged marital conduct[.]” (Original in all caps). In
other words, Husband contends that Wife must specifically allege that she did not do
anything to provoke Husband to use pornography and solicit women online,
presumably every time he did this over the years, despite the fact that he hid his
actions from her. Husband also contends Wife failed to properly allege in her
complaint “the nature of the ‘indignities’ she suffered[.]” (Original in all caps.)
Wife’s claim was based upon North Carolina General Statute § 50-16.3A, and
she alleged Husband had engaged in “marital misconduct,” specifically “[i]llict sexual
behavior” and “[i]ndignities” as enumerated in North Carolina General Statute § 50-
16.1A(3). See N.C. Gen. Stat. § 50-16.1A(3) (2015). Wife also included specific factual
allegations about the nature of the indignities: “including but not limited to the
repeated and addictive use of pornography and the use of social media sites for dating
and flirting with other women.” Although Husband did not file a Rule 12(b)(6) motion
to dismiss the alimony claim, and his brief does not rely upon Rule 12(b)(6), his
argument is that Wife’s claim for alimony based upon indignities should be dismissed
for failure to state a claim because her complaint failed to allege provocation and
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identify the indignities with enough detail. See generally N.C. Gen. Stat. § 1A-1, Rule
12(b)(6) (2015) (noting a party may make a motion to dismiss a claim for “[f]ailure to
state a claim upon which relief can be granted”). Thus, as it is the substance of
defendant’s argument, we treat his objection as a Rule 12(b)(6) motion to dismiss for
failure to state a claim.
In Shingledecker v. Shingledecker the defendant-husband made a motion to
dismiss the plaintiff-wife’s claim for divorce from bed and board based upon
“constructive abandonment, cruel and barbarous treatment and indignities” for
failure to state a claim for relief because she had “failed to allege that the actions
were perpetrated without adequate provocation.” 103 N.C. App. 783, 784–86, 407
S.E.2d 590-91 (1991). This Court noted the ancient cases supporting the defendant-
husband’s argument regarding provocation, but held that his motion to dismiss was
not properly presented on appeal:
To be sure, defendant’s contention was supported by cases
decided prior to the enactment of the North Carolina Rules
of Civil Procedure at G.S. § 1A-1. See, e.g., Brooks v. Brooks,
226 N.C. 280, 284, 37 S.E.2d 909, 912 (1946) (stating that
the failure of a complaint seeking a divorce from bed and
board on the grounds of abandonment to allege “lack of
adequate provocation” is a fatal defect); Ollis v. Ollis, 241
N.C. 709, 711, 86 S.E.2d 420, 421 (1955) (In alleging cruel
and barbarous treatment, it is not enough for the wife to
allege the husband has been abusive and violent towards
her, that she has been made to fear for her safety. She must
go further and allege specific acts and conduct on the part
of the husband. She must also set forth what, if anything,
she did to start or feed the fire of discord. The omission of
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such allegations] is fatal. Id.); Cushing v. Cushing, 263
N.C. 181, 139 S.E.2d 217 (1964) (One who bases a claim for
alimony without divorce on the ground of indignities is
required “not only to set out with particularity those acts
which constituted such indignities but also to show that
those acts were without adequate provocation.” Id. at 187,
139 S.E.2d at 222. An omission to make the necessary
allegations is fatal. McDowell v. McDowell, 243 N.C. 286,
288, 90 S.E.2d 544, 545 (1955)).
Following the enactment of the Rules of Civil
Procedure in 1967, this court in Concrete Service Corp. v.
Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755,
cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986),
specifically addressed the propriety of appealing motions of
this type. There, we fashioned the following rule of
procedural law:
Where an unsuccessful motion to dismiss is
grounded on an alleged insufficiency of the
facts to state a claim for relief, and the case
thereupon proceeds to judgment on the
merits, the unsuccessful movant may not on
an appeal from the final judgment seek
review of the denial of the motion to dismiss.
Id. at N.C. App. at 682-83, 340 S.E.2d at 758-759.
Inasmuch as we find Concrete Service Corp. to be
controlling on this issue, we conclude that defendant’s
motion to dismiss is not properly presented by this appeal.
Id. at 786–87, 407 S.E.2d at 591 (quotation marks, ellipses, and brackets omitted).
Although Shingledecker addressed a claim for divorce from bed and board instead of
alimony, the law regarding lack of provocation is the same, and Husband’s argument
that Wife’s claim should be dismissed is the same. See id. at 784-87, 407 S.E.2d at
590-91. In accord with Shingledecker, Husband’s motion to dismiss “is not properly
presented by this appeal.” Id. at 787, 407 S.E.2d 591. This argument is overruled.
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B. Condonation
Husband next contends “the trial court erred when it did not find that [Wife]
condoned the [Husband’s] illicit sexual behavior.” (Original in all caps.) Whether
marital misconduct has been condoned is a question of fact. See generally Gordon v.
Gordon, 88 N.C. 45, 50 (1883) (“For even if these facts are not of themselves sufficient,
they are of such a character as to revive the transactions occurring before the
separation, and obliterate the condonation arising from the return of the petitioner
to the house of the defendant.”). Again,
Decisions regarding the amount of alimony
are left to the sound discretion of the trial
judge and will not be disturbed on appeal
unless there has been a manifest abuse of that
discretion. When the trial court sits without a
jury, the standard of review on appeal is
whether there was competent evidence to
support the trial court’s findings of fact and
whether its conclusions of law were proper in
light of such facts.
An abuse of discretion has occurred if the decision is
manifestly unsupported by reason or one so arbitrary that
it could not have been the result of a reasoned decision.
Kelly, 228 N.C. App. at 601, 747 S.E.2d at 272–73 (2013) (citations and quotation
marks omitted).
The North Carolina Pattern Jury Instructions succinctly and accurately
summarize the law regarding condonation:
In order to condone or forgive marital misconduct, a
spouse must know that such marital misconduct occurred.
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This means that before marital misconduct can be forgiven,
the spouse must have actual knowledge of the marital
misconduct or have knowledge of facts which would satisfy
a reasonably prudent person that the marital misconduct
had been committed. Mere suspicion without facts or
knowledge to support such suspicion will not suffice. In
addition, it must appear that a spouse not only knew of the
marital misconduct, but also accepted it as true.
A spouse condones or forgives marital misconduct
when he voluntarily elects to [continue] [resume] the
marital relationship with the spouse who has committed
marital misconduct. [Continuation] [Resumption] of the
marital relationship means voluntary [continuation]
[renewal] of the husband and wife relationship, as shown
by the totality of the circumstances.
[Evidence that the plaintiff and defendant engaged
in sexual intercourse after the [plaintiff] [defendant]
forgave his spouse for act(s) of marital misconduct is not
required.]
[Evidence of voluntary sexual intercourse between
the plaintiff and the defendant after the [plaintiff]
[defendant] has actual knowledge of the adultery
of his spouse, or has knowledge of facts which would satisfy
a reasonably prudent person that his spouse had
committed adultery, is considered evidence of a spouse’s
forgiveness of adultery on the part of the offending
spouse, and should be considered with all the other facts
and circumstances in evidence].
Forgiveness may be express or implied. Express
forgiveness is when a [husband] [wife] states to his spouse
who has committed marital misconduct, “I forgive you for
(state alleged marital misconduct)” or similar words to that
effect.
Forgiveness is implied when a husband and wife
[continue] [resume] the marital relationship after a spouse
has knowledge of marital misconduct by his spouse.
[However, forgiveness is not implied simply because
spouses live in the same residence.] [Isolated incidents of
sexual intercourse between the parties do not constitute
resumption of marital relations.]
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N.C.P.I. – Civil 815.71 (footnotes omitted).
The trial court’s findings relevant to marital fault and condonation, or the lack
thereof, were as follows:
23. Throughout the course of the parties’
marriage the defendant was addicted to pornography. The
plaintiff discovered this issue early in the marriage and she
told the defendant it bothered her. The defendant
exchanged pornographic photos with others, including a
nude picture of the plaintiff which was sent to a co-worker
at the Coast Guard base without the plaintiff’s knowledge
or consent, and solicited sexual encounters with others on
the internet. He also left a digital trail of pornographic
websites on computers and tablets accessible to the
children.
24. The defendant visited and used social media
sites for flirting and dating and setting up encounters with
other women. Throughout the marriage the defendant
repeatedly sought out online sexual encounters with other
women and saw other women for sexual reasons. He
admits having two affairs during the course of the
marriage, one of which was with an exotic dancer and other
with the teacher of one of the plaintiff’s children.
25. The plaintiff confronted the defendant about
his use of pornography and online sexual solicitations
during the marriage, to no avail. The defendant’s conduct
continued. When confronted, the defendant would at first
deny his conduct, then become angry and defensive and
accuse the plaintiff of being nosey. He would then become
contrite and say he was sorry. At one point the defendant
agreed to go to counseling for his addiction to pornography
but he stopped attending after a short time. At times the
plaintiff believed the defendant had changed his ways but
he never did and this pattern repeated itself throughout
the marriage.
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26. The defendant’s conduct, including his
addiction to pornography, his affairs and his constant
solicitations of other women had a devastating effect upon
the plaintiff. At one point she thought she was going to
have a nervous breakdown and she began to see a
therapist, which she continues to do through the present.
The plaintiff felt guilty about what was happening in her
marriage and. the defendant’s actions devastated her self-
esteem.
27. Just prior to the parties’ separation their
relationship appeared to the plaintiff to be on an upswing
and they had sexual relations about a month prior to the
separation. However, at this time the defendant was
deceiving the plaintiff.
28. On the date of separation, the parties argued
over whether the defendant would attend a middle school
graduation for one of the children. This led to a larger
argument. Then, with no other forewarning, the defendant
told the plaintiff that he hated her and that their marriage
was over.
Husband does not contest the findings of fact, but rather argues that the trial
court erred in also failing to make “a finding of condonation on the part of” Wife.
Husband contends that because Wife 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. See generally
N.C. Gen. Stat. § 50-16.1A(3)(a) (defining “[i]llicit sexual behavior” as “acts of sexual
or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-
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27.20(4), voluntarily engaged in by a spouse with someone other than the other
spouse”). But Husband 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
Husband’s addiction to pornography and communications with women online, noting
that these were problems “throughout the marriage.” Even if we assume the trial
court tacitly found Wife had condoned Husband’s illicit sexual behavior in 2008, the
marital fault of indignities remains.
Husband’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.1 See N.C. Gen. Stat. § 50-16.1A(3). Even
if the affairs in 2008 were condoned as Husband contends, he did not show
condonation of indignities.
In Earles v. Earles, the plaintiff-wife had alleged both abandonment and
indignities as marital faults. 26 N.C. App. 559, 562-63, 216 S.E.2d 739, 742 (1975).
The defendant-husband argued that the trial court erred by not instructing the jury
on the issue of condonation of abandonment, and this Court determined that the trial
1 The North Carolina Pattern Jury Instructions point out that each type of marital misconduct
for which evidence is presented must be addressed separately. See N.C.P.I. – Civil 815.71 n.5. The
instruction on condonation notes that “[t]o avoid confusion in the event it is contended that more than
one type of marital misconduct has been condoned, it may be necessary to specify with particularity
the types of marital misconduct involved and to submit a separate sub-issue as to each.” Id.- 16 -
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court did not need to instruct on condonation of abandonment because the defendant
did not present any evidence of condonation of this marital fault; all of his evidence
of condonation related to the indignities. Id. at 563, 216 S.E.2d at 743. Here, the
trial court’s findings of fault are based upon the indignities, and Husband has not
directed us 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: Husband was deceiving Wife regarding his continuing use of
pornography and online sexual solicitations. Whenever Wife discovered what
Husband was doing and objected, he would first deny and then acknowledge his
actions and promise to stop. The fact that Husband and Wife continued to live
together and even have sexual relations would not condone these indignities, since
Wife would have had to have full knowledge of Husband’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
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has condoned only the known misconduct. A spouse might
forgive certain acts of adultery with certain people, for
example, but not forgive others.
N.C.P.I. – Civil 815.71 n.9 (quotation marks, ellipses, and brackets, and parenthesis
omitted) (citing 6 Lee’s § 6.19(B)).
Husband argues that trial court’s finding that he “was deceiving” Wife “does
not make sense” because he had admitted his illicit sexual behavior in 2008 to Wife
and several years passed before they separated. But the deception the trial court
found related to the indignities, not the illicit sexual behavior. Even if Wife condoned
the 2008 affairs, Wife could not have condoned Husband’s continuing “use of
pornography and online sexual solicitations” because Husband “deceiv[ed]” her into
believing he had ceased the behavior. Husband does not contend that Wife had full
knowledge at all times of his continuing pornography use and online solicitations nor
that she ever acquiesced to his actions. Wife testified about finding pornography on
their home computer, iPad, and cell phone, where their children could be exposed to
it, and the oldest child did see it. Wife also testified about finding that Husband was
“[r]egistering on dating sites. Searching for sex on Craig’s List. Other women
exchanging photos.” Wife was upset about these findings and felt “[h]orrible.” When
Wife confronted Husband about the pornography and on-line solicitations,
[h]e would admit to it after I would find it out, but then he
would be angry because I was playing detective according
to him, trying to find him doing things that were wrong.
And we would have a disagreement and then it would come
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down to, you know, he was sorry and he wasn’t going to do
it again. But then it came down to he couldn’t not do it
again. So it became -– it was a problem.
Q. So you would confront him and his first
reaction would be to become angry?
A. No, he would just deny it. He would just deny
it.
The evidence and findings indicate that Husband denied the indignities, and
when Wife 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 Husband “lied to and deceived” Wife “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
Husband did not present any evidence that Wife ever had sufficient knowledge of his
actions to condone them. When Wife did become aware of Husband’s actions, she
objected and asked him to stop, but he continued his behavior surreptitiously. This
argument is overruled.
V. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
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GILMARTIN V. GILMARTIN
Opinion of the Court
Judge DILLON concurs.
Judge BERGER concurs in the result only.
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