Ex parte Grimmett – Ala. Jan. 14, 2022
The husband in Ex parte Grimmett sought a divorce from his wife. Although the wife did not allege adultery in her counterclaim, at trial the husband admitted under cross-examination that he was having an extramarital affair. He did not specify, however, when this affair began. Following trial, the husband’s paramour filed an affidavit stating her relationship with the husband began after the husband had filed for divorce. The Winston Circuit Court found the husband’s infidelity was undisputed and, as a result, ordered a “60/40” split of the marital estate in favor of the wife.
On appeal, the husband argued there was inadequate evidence he had committed adultery before he filed for divorce, and that his admitted postfiling adultery was not sufficient to support the trial court’s division of the marital estate. Upon a writ of certiorari, the Alabama Supreme Court agreed there was insufficient evidence to support a finding of prefiling adultery. The wife had only produced evidence of phone records that listed numerous text messages and phone calls between the husband and his paramour prior to his filing divorce and the wife’s testimony that she had a “’gut feeling’ something was amiss.” But according to the Court’s precedent, none of this arose to more than mere “suspicion” of adultery, which was not sufficient.
But the Court did not stop there. It found the husband’s postfiling adultery was adequate grounds for the trial court’s decision. In so doing, it relied upon a plain reading of the statutory grounds for divorce, in which the Alabama legislature had required certain grounds for divorce to occur at or near the time the divorce complaint is filed. No such restriction was placed on the grounds for adultery. The Court reasoned this demonstrates the Alabama legislature did not intend to limit adultery to prefiling conduct.
The Court went on to distinguish that holding from certain prior decisions the husband relied upon. It noted that those previous decisions were issued before the Court’s merger of law and equity in 1973. Before the merger, divorce proceedings were matters of equity, and under equity the evidence at trial had to conform to the pleadings. Thus a party had to “charge” adultery in a bill for divorce before evidence of such could be produced at trial. The result was postfiling adultery could not be presented at trial because it arose after the bill for divorce had been filed. The modern procedure, by comparison, is governed by Alabama Rule of Civil Procedure 15(b). That rule permits pleadings to be amended to conform to the evidence presented at trial, and without any objection, matters not pled are tried by consent with the introduction of evidence of them. Because the husband had not objected to the evidence of his adultery, it was before the court and properly served as a basis for the trial court’s decision. The Alabama Court of Civil Appeals and the Circuit Court were affirmed.
HELD: A spouse’s postfiling adultery is relevant to and sufficient grounds for divorce.