It has become almost common place in a divorce action based upon adultery for e-mails to be used as evidence. However, one must be careful with how they “discover” these e-mails. In recent South Carolina case, a husband admitted to his wife that he was having an affair but would not tell her the paramour’s name. So the wife’s daughter-in-law (who used to work for the husband) logged onto the husband’s yahoo e-mail account from her personal computer by changing husband’s password. There, the daughter-in-law discovered e-mails between the husband and the paramour. These e-mails were given to the wife and eventually used in the domestic action.

Once the husband discovered these e-mails were in the possession of the wife, he brought an action against the wife and daughter-in-law (as well as others) for the illegal interception of these e-mails. Ultimately, after many court filings, the South Carolina Court of Appeals held that the case could move forward against the daughter-in-law who actually opened the e-mails, printed them off, and gave them to the wife.

Although the daughter-in-law was only trying to help the wife, and the husband was the one who committed adultery, she now is faced with mounting legal fees and the prospect of paying the husband damages. If you suspect e-mails exist, have your attorney subpoena them and request an expert search the computer itself.

Floyd v. Morgan 383 S.C. 469, 681 S.E.2d 570 (Ct. App. 2009) involves issues of modification of a child support order based upon the change in one’s income. The mother, who was the non-custodial parent sought a change of her child support obligations because the father’s income had increased by 43% since the prior child support order was entered and the $544 of child care at time of previous order no longer existed. Of note, the previous child support order of $920 a month was based upon an agreement reached by the mother and father in 2000.

“The family court may always modify child support upon a proper showing of a change in either the child’s needs or the supporting parent’s financial ability. The party seeking the modification has the burden to show changed circumstances. This burden is increased where the child support award is based on a settlement agreement. However, changes within the contemplation of the parties at the time of the initial decree are not sufficient bases for the modification of a child support award. . . . a reduction in child support cannot be based on a decrease in the noncustodial parent’s income absent a strong showing by the latter that he or she can no longer make the support payments required by the earlier order.”

The Court of Appeals held that the “Mother failed to meet the heightened burden necessary to warrant a downward modification of her child support obligation.”

The Court stated that “Although the increase in Father’s income is of some import, this factor alone did not warrant a downward modification of Mother’s obligation absent a strong showing that she was incapable of meeting the initial agreed-upon amount of child support. . . Mother had to prove more than an increase in Father’s income to warrant a downward modification of her child support obligation. Mother failed to do so given her income actually increased 18% since the 2000 order and, thus, she could not establish that she was incapable of meeting the initially agreed-upon child support obligation of $920 per month.”

The Court went on and stated that “given the children’s young ages at the time of the initial decree, we believe the parties would have foreseen the eventual elimination of the $544 child care expense used to calculate Mother’s initial child support obligation. Moreover, Regulation 114-4720 points out that support payments are based on data reflecting the average cost of rearing a child to its age of majority. This Regulation also recognizes that this cost increases as the child’s age increases. Therefore, the reduction in child care cost is offset over time by the increase in cost associated with the needs of an aging or maturing child. Thus, it would appear that a reduction in child care cost is expected and considered in the child support guidelines formulation.”

The Court went back to its earlier statement of the law: “changes within the contemplation of the parties at the time of the initial decree are not sufficient bases for the modification of a child support award.”

Thus, because the mother could not prove that she could no longer pay the agreed upon child support, regardless of the increase in the father’s pay, the Court would not modify the previous child support order.

A spouse may think that when he/she is “cheating” it only affects their spouse and alimony. Such is not necessarily the case. Besides the obvious affect of cheating on one’s children, the courts may consider such marital misconduct when deciding which parent gets custody on the children. However, unless such conduct rises to the level of “flagrant promiscuity,” one must show that the adultery directly impacts the best interest of the child.

In Chastain v. Chastain 381 S.C. 295, 672 S.E.2d 108 (Ct. App. 2009), Husband and Wife married in 1996 and had three children (1997, 2001, and 2003).  In 2005, Husband suspected Wife was cheating. So Husband hired a private investigator which proved Wife was having an affair. On July 13, 2005, Husband left the marital home and took the children to his parents’ house and commenced an action for divorce, custody, child support, and separate support and maintenance. In October 2005, Wife began another extramarital affair with another man.

While the parties were separated, Wife brought her second paramour to her child’s dance recital. After the dance recital, Wife, Paramour, Husband, and Husband’s mother were involved in a physical altercation in which all were arrested and eventually pled guilty to disorderly conduct.

After Husband and Wife had been separated for eight months, Husband began having sexual relations with Paramour’s wife. One night, Wife and Paramour threw a brick through the bedroom window (where Husband and Paramour’s wife were being intimate) and Wife kicked the door of the residence open and took pictures of Husband.

Wife claimed that the Paramour had no interaction with her children. Wife does admit Paramour stayed at her house one night while the children were in her care. However, Wife maintains the children were asleep and did not see Paramour.

The Guardian ad Litem visited both parents and prepared a report prior to the court hearing. The Guardian observed that the children were much more quiet, respectful and loving in Husband’s care than with the Wife.  Further, unlike the Guardian’s finding in Wife’s home (exposed light switch and driving with child in car without proper restraint), Father’s home was safe for children.

Based upon these facts, the court initially awarded Husband custody of all three children, finding Wife engaged in “flagrant promiscuity.” However, the family court found Wife’s extra-marital affairs did not negatively affect the welfare of her children.

On appeal, the Court stated that in light of the lower court’s finding, the only way Wife’s adulterous affairs could have been relevant in the best interest analysis was if the court found she engaged in flagrant promiscuity. Wife argued that her conduct did not rise to the level of flagrant promiscuity.

The Court of Appeals held that “A parent’s morality, while a proper consideration in custody disputes, is limited in its force and effect to the relevance it has, either directly or indirectly, on the welfare of the child.” “Thus, conduct that is immoral must also be shown to be detrimental to the welfare of a child before it is of legal significance in a custody dispute.” “However, flagrant promiscuity inevitably affects the welfare of the child and establishes “a watershed in the court’s quest to protect the best interests of a minor child.”

The Court of Appeals held “the family court erred in finding Wife’s conduct rose to the level of flagrant promiscuity. Flagrant promiscuity serves only as an exception to the general rule, which requires immoral conduct to have a detrimental affect on the welfare of the child in order to have legal significance. Because it only exists as an exception, we believe it is meant to be invoked sparingly-to embrace that rare situation of glaringly bad and outrageous conduct not present in these facts. Here, Wife engaged in two extra-marital affairs, while Husband engaged in one extra-marital affair. In addition, Wife essentially lives with her current boyfriend . . . when her children are not in her care.”

Thus, the Court of Appeals looked at whether the family court’s award of custody to Husband was in the best interests of the children.

The “Wife contends the family court erred in awarding custody to Husband. Wife claims the best interests of the children would have been served by granting custody to her. Specifically, Wife asserts she, unlike Husband, regularly takes the children to church. Moreover, she served as the primary care-taker of the children during their marriage while Husband spent his time playing golf.”

“The paramount and controlling factor in every custody dispute is the best interests of the child. The family court must consider the character, fitness, attitude, and inclinations on the part of each parent as they impact on the child. Psychological, physical, environmental, spiritual, educational, medical, family, emotional, and recreational aspects of the child’s life should also be considered. In other words, the totality of circumstances unique to each particular case constitutes the only scale upon which the ultimate decision can be weighed.”

The Court of Appeals held the “best interests of the children are served by awarding custody to Husband, without considering Wife’s immoral conduct. First, the family court found Wife exposed her children to safety risks while they were in her care. Specifically, Wife transported her four-year-old . . .  in the front seat without a booster seat and had an exposed electrical socket in her home. Second, both Husband and Wife agree Johnsonville School District, where Husband lives, offers a better education for their children than Lake City School District, where Wife lives. In fact, while the parties were married and living in Lake City, Husband and daughter, the only child old enough to attend school, stayed at Husband’s parents’ home during the week so she could attend school in Johnsonville. By awarding custody to Husband, the children can attend school in this more desirable school district.”

Further, the Court found that “[t]he inability of Wife to control her children, and the inconsistent manner in which she disciplined her children greatly concerned the Guardian. However, the Guardian observed completely different children in the care of Husband. While in his care, the children were ‘quiet, respectful, and loving.’ The fact Husband exhibits more control over the children and instills discipline in their lives impacts the best interests of the child analysis.”

“In addition, Husband works from home and maintains a flexible work schedule, which allows him to spend more time with the children and adjust his schedule to accommodate their needs. Also, Husband lives with his mother, who is retired and willing to do whatever necessary to help in raising the children. By contrast, Wife’s work schedule is very inflexible, and she has no one living with her in the house to help in raising the children. Lastly, while Wife served as the primary caretaker of the children for a large part of their marriage, Husband has changed very much since this early stage of their marriage and now freely fills these roles. As Wife stated, ‘He wants to be daddy of the year.’ ‘He doesn’t play golf anymore. He doesn’t do anything.’ In addition, Wife acknowledged, since the separation, Husband cooks, cleans, and bathes the children. In considering all of the factors in this case, the best interests of the children are served by awarding custody to Husband.”

Although this is a “wild” case, it illustrates the overriding concern of the courts in custody matters: the best interest of the children.  Despite the Court stating the adultery by Wife was not a real factor, having had two adulterous affairs, bringing the paramour to the child’s dance recital, and having the paramour sleep over while the children are asleep, probably did not put Wife in the most favorable light.