Griffin v. Rice

Opinion of the Court by Justice ABRAMSON. Kathy and Curtis Rice were married approximately four months before separating and filing for divorce. While they were separated but still married, Curtis died in a work-related accident. Jackie Griffin, Curtis’s mother and the adminis-tratrix of his estate, claims Kathy is barred by Kentucky Revised Statute (KRS) 392.090(2) from receiving an interest in Curtis’s estate. This statute provides that a spouse who voluntarily leaves the other and “lives in adultery” forfeits his or her right to and interest in the other’s estate and property. Based on Griffin’s proof at trial that Kathy had sexual intercourse with another man the night prior to Curtis’s death, the trial court held that Kathy forfeited her interest in Curtis’s estate pursuant to KRS 392.090(2). The Court of Appeals reversed, holding the single act of adultery engaged in by Kathy prior to Curtis’s death was insufficient to constitute “liv[ing] in adultery” under the statute. We agree that the statutory language “lives in adultery” requires more than a single instance of adultery. Accordingly, we affirm the Court of Appeals opinion, reverse the ruling of the Harlan Circuit Court and remand this matter for proceedings consistent with this Opinion. RELEVANT FACTS Kathy and Curtis Rice married on February 20, 2004 and separated less than five months later in July, 2004. Curtis left the marital residence and moved in with his mother, Jackie Griffin. On August 20, 2004, Kathy obtained a domestic violence order against Curtis and five days later she filed a petition for dissolution of marriage in Harlan Circuit Court. Curtis contemporaneously filed an entry of appearance but no further action was taken in the case. On September 12, 2004, while Kathy and Curtis were separated but still married, Curtis died in a work-related accident. The Probate Division of Harlan District Court appointed Griffin the administratrix of Curtis’s estate and on January 19, 2005 Griffin filed a complaint in circuit court for a declaratory judgment. Griffin specifically requested the court declare Kathy had forfeited her right to and interest in Cur — 200 — tis’s estate under KRS 392.090(2), which provides that when a spouse voluntarily leaves the other and “lives in adultery,” he or she forfeits their right to and interest in the other’s property and estate. Kathy denied the statute barred her right to a share of Curtis’s estate and moved for summary judgment on August 2, 2007. In a supplemental response to Kathy’s motion for summary judgment, Griffin produced an affidavit from Billy Halcomb, a man Kathy had dated. Halcomb stated he and Kathy went out on September 10 and 11, the Friday and Saturday prior to Curtis’s death on Sunday, September 12. Halcomb further testified in his affidavit that on Saturday, September 11, he and Kathy went to a bar, became intoxicated and had sexual intercourse. According to Hal-comb, he and Kathy continued to see each other after Curtis’s death and ultimately lived together for eight or nine months. The circuit court found Halcomb to be a credible witness and, based on his testimony, denied Kathy’s motion for summary judgment on May 9, 2008. During the subsequent bench trial, Halcomb testified consistently with his affidavit while Kathy testified she did not meet and start dating Halcomb until October 2004, about a month after Curtis died. Kathy further maintained she did not engage in sexual intercourse with any man other than her husband while they were separated.1 The court again credited Halcomb’s testimony and, considering all the evidence and applicable law, entered judgment against Kathy. Kathy appealed both the trial court’s denial of her motion for summary judgment and the court’s ruling that KRS 392.090(2) barred her from receiving her share of Curtis’s estate. The Court of Appeals reversed, holding the circuit court should have granted Kathy’s motion for summary judgment. The Court of Appeals found the statutory language, “lives in adultery,” requires proof of more than a single act of adultery and, according to Halcomb’s testimony, he and Kathy only had sexual relations on one occasion prior to Curtis’s death. As such, the Court of Appeals concluded the requirements of KRS 392.090(2) could not be met and the trial court should have granted Kathy summary judgment. This Court granted Griffin’s ensuing motion for discretionary review to address an issue of first impression, that is, whether one act of adultery is sufficient to satisfy the statutory requirement of KRS 392.090(2) that the offending spouse “lives in adultery.”2 — 201 — ANALYSIS Resolution of this case turns, on the proper construction of KRS 392.090(2). The construction and application of a statute is a matter of law and we therefore review the pertinent statute de novo, without deference to the interpretations adopted by lower courts. Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 612 (Ky.2004). KRS 392.090(2) was modeled on the English statute of 13 Edward I, c. 34, enacted in 1285, and commonly known as the “Statute of Westminster Second.”3 See Baldwin v. Cook, 232 Ky. 365, 23 S.W.2d 601 (1930). Kentucky initially adopted the statute in 17964 and codified the current version as KRS 392.090(2) in 1942. The statute provides, “If either spouse voluntarily leaves the other and lives in adultery, the offending party forfeits all right and interest in and to the property and estate of the other, unless they afterward become reconciled and live together as husband and wife.” The statute thus has two requirements that must be met before a husband or wife forfeits his or her interest in the other spouse’s property and estate: (1) the husband or wife must “voluntarily leave[ ]” the other spouse and (2) he or she must “live[ ] in adultery.” The only issue with which we are concerned in this case is the import of the latter requirement, that the offending spouse “lives in adultery.”5 Very few cases in the Commonwealth have addressed what conduct on the part of the leaving spouse is necessary to satisfy the requirement that he or she “lives in adultery,” and only one has spoken to the issue at any length. In Goss v. Froman, 89 Ky. 329, 12 S.W. 387 (1889), the wife left her sick husband in Louisville and went to Bowling Green, where she had sexual intercourse with at least two men, one of whom she had sexual intercourse with several times and wrote “unchaste and lascivious” letters to both before and after her trip to Bowling Green. Id. When she eventually returned to Louisville she stayed with a friend and never returned to her husband. 12 S.W. at 388. Based on — 202 — this conduct, the Goss Court found the wife had left her husband and “live[d] in adultery.” The Court explained that “lives in adultery” does not mean that she shall constantly live with one man in adultery during her abandonment of the husband, in order to forfeit her right of dower or distributable share; but if she admits any man or men to her periodically, or whenever it is convenient or opportunity is afforded, during said abandonment, such conduct constitutes a living in adultery, within the meaning of the statute. Id. at 390. See also Bond v. Bond’s Adm’r, 150 Ky. 389, 150 S.W. 363 (1912). While this discussion makes clear that a woman need not live constantly with another man to be “liv[ing] in adultery” it also indicates that one instance of adultery is insufficient under the statute. Rather, the husband or wife’s affairs must be periodic or recurring, a sustained or notorious activity. The adultery need not be with the same man or woman, but there must be more than one instance of adultery for a husband or wife to “live[] in adultery” under KRS 392.090(2). The General Assembly’s intention that more than one act of adultery be required is indicated by its intentional use of the word “lives” in the phrase “lives in adultery.” Had the General Assembly considered one instance of adultery sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property, it would have made this clear by employing different wording in the statute, such as “commits adultery” or “engages in adultery.” Another statute, in effect at the same time as the statute at issue, indicates the General Assembly was aware of the import of its phrasing and knew exactly how to distinguish between one adulterous act and multiple acts of adultery. Kentucky’s former fault-based divorce statute, Ky. Stat. § 2117,6 listed different causes for which a court could grant a divorce to a husband or wife. According to the statute, a husband or a wife could obtain a divorce on the grounds that the other was “living in adultery with another man or woman” and a husband could obtain a divorce on the grounds of “adultery by the wife.” Id. In creating the statute, the General Assembly employed different language in the same section for the adulterous conduct by a wife that justified a divorce and the adulterous conduct by a husband that justified a divorce. Interpreting this language, this Court’s predecessor held that a husband only had to prove a single act of adultery by his wife to meet the statutory requirement of “adultery by the wife,” whereas a wife had the higher burden of proving her husband had been “living in adultery” to secure a divorce. Baker v. Baker, 136 Ky. 617, 124 S.W. 866 (1910). The General Assembly’s use in the same provision of different standards of proof for adultery indicates that “living in adultery” means something different than “adultery by the wife.” Id. If “adultery by the wife” requires only a single act of adultery, then “living in adultery” requires more than a single act of adultery. Id. at 867. See also Booth v. Booth, 12 Ky. Law Rep. 988 (1891). In further explaining what behavior constitutes “living in adultery” under the divorce statute, the Baker Court employed language similar to that used by the Goss Court to describe what behavior constitutes “lives in adultery” under the statute at issue: — 203 — While to constitute a living together in adultery there must be more than a single act, there need not be a living together continuously, or for a given time, nor is it necessary for the man to abide in the same house with the woman; but if he at stated periods, or frequently, spend the day or night, or any considerable part of his time with a woman, not his wife, at such times having carnal knowledge of her at will, though at other times he be domiciled with his wife, it constitutes the offense against the wife’s marital rights which the statute declares a ground for divorce. Baker, 124 S.W. at 867.7 Though addressing a different statute, the Baker Court’s interpretation of a nearly identical phrase reinforces the conclusion that “lives in adultery” requires more than one instance of adultery. See also Bottom v. Bottom, 143 Ky. 666, 137 S.W. 198, 199 (1911) (finding testimony that husband may have had sexual relations with one or two other women showed “he has likely committed acts of adultery, but it falls short of showing that he was guilty of living in adultery with another woman, as is required to be shown by the statutes.”). The language chosen by the General Assembly in the contemporaneous divorce statute makes clear the legislature was aware of the significance of its phrasing and was able, had it meant to do so, to employ language that indicated one act of adultery would be sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property. Courts interpreting similar statutes in sister jurisdictions have reached the same conclusion we do today. In Stegall v. Stegall, 22 F.Cas. 1226, 1227 (C.C.D.Va.1825), the court stated that under a Virginia statute providing, “if a wife willingly leave her husband, and go away and continue with her adulterer, she shall be barred forever of action to demand dower,” the requirement that the wife “continue with her adulterer,” is satisfied by an “open state of adultery.” The wife in that case was held to have lived in an open state of adultery and thus had forfeited her dower where she voluntarily left her husband and lived with another man in a relationship approximating marriage. Id. In In re Estate of Montgomery, 137 N.C.App. 564, 528 S.E.2d 618 (2000), the court had to determine whether a wife had “live[d] in adultery” and so lost her right to administer her deceased husband’s estate pursuant to a statute that divests a spouse of this right when he or she “voluntarily separates from the other spouse and lives in adultery and such has not been condoned.” (quoting N.C.G.S. § 31A-1(a)(2) (1999)). The Montgomery Court rejected the petitioner’s argument that a single act of adultery was sufficient to satisfy “lives in adultery” and instead construed the phrase to mean a spouse engages in “repeated acts of adultery.” Id. at 621. The court therein reached this conclusion by looking to the distinction between “committing adultery” and “living in adultery” made by the legislature in the — 204 — state’s divorce statute, which provided that the causes for divorce include “(1) If either party shall separate from the other and live in adultery” and “(2) If the wife shall commit adultery.” Id. at 620 (quoting N.C.G.S. § 1285 (1883)). Id. Given this distinction, the North Carolina court concluded that “live in adultery” requires a showing of something more than “commit adultery,” or a single act of adultery. Id. at 620-21. In Goodwin v. Owen, 55 Ind. 248, 249 (1876), the Indiana Supreme Court interpreted a statute similar to that in this case and held, “Living in adultery means living in the practice of adultery. In this case, the evidence shows that she was living in the continuous practice of open adultery. If it does not show a living by her in open adultery, it will be difficult to find a case of such living.” And similarly, in Gaylor v. McHenry, 15 Ind. 383, 385 (1860), the Indiana Supreme Court stated, “While it is true that a single act would make the plaintiff an adulteress, it does not follow, we think, that, of course, she would be living in adultery.” The Gaylor Court went on, “If the law makers had intended that the commission of that single crime should bar the right to a distributive share in the estate, it certainly could have been expressed in fewer words and more pointed style.” Id. By holding the phrase “lives in adultery” requires more than one act of adultery, this Court acts in accordance not only with our own jurisprudence and the intention of the General Assembly, but also in accordance with other states that have considered the same issue. Finally, we address Griffin’s argument that while Kathy may have only engaged in adultery on one occasion prior to Curtis’s death, her conduct subsequent to his death establishes that she had commenced “living in adultery” and but for Curtis’s untimely death she would most assuredly have forfeited her right and interest to his estate. This novel argument depends in part on Griffin’s contention that Kathy’s conduct in the weeks and months following Curtis’s death is relevant. As a matter of law, it simply is not. Adultery is commonly defined as “voluntary sexual intercourse between a married person and a partner other than the lawful spouse.” Webster’s II New College Dictionary (1995). See also Black’s Law Dictionary (9th ed.2009) (“adultery, n. Voluntary sexual intercourse between a married person and someone other than the person’s spouse.”) When Curtis died on September 12, 2004, Kathy became a widow and no longer had a “lawful spouse” against whom she could commit adultery. Stated simply, a surviving wife or husband cannot commit adultery against a deceased spouse because the marriage ends with the death of either party. Thus, the conduct of a widow or widower in the days, weeks or months following a spouse’s death may be unseemly but it cannot be adultery. Griffin’s contention that Kathy’s one act of adultery at the inception of what became a longer relationship during her widowhood is sufficient to invoke the bar to an interest in Curtis’s estate under KRS 392.090(2) is simply unavailing. To forfeit an interest in the other spouse’s estate, the surviving wife or husband must have lived in adultery prior to that spouse’s death. The dissent’s claim8 that the majority opinion requires the Court to delve into the parties’ sexual conduct to count out instances of infidelity is simply wrong. The statutory language “lives in adultery” requires more than one act of adultery by the offending spouse. In construing that — 205 — language, we do not require trial courts to tally acts of infidelity to a magical number, but rather we direct courts to look for a course of notorious or sustained unfaithful conduct or periodic or recurring adulterous activity by the errant spouse, which indicates he or she is living in adultery, as required by KRS 892.090(2). As for scrutinizing sexual conduct, it is the dissent’s position that would encourage surviving family members to delve into the details of a separated couple’s personal lives to search for that one “triggering” act of adultery that would change the beneficiary of the estate. In any event, this Court’s job is to interpret the language of the statute, not to make impassioned judgment calls on the state of a particular marriage or the morality of the parties’ conduct. The dissent also conveniently ignores the legislative history and accompanying judicial precedent, which indicáte the General Assembly’s understanding of the phrase “lives in adultery” and the import of using that phrase in KRS 392.090(2). If the General Assembly wanted to bar a spouse from participating in his or her deceased spouse’s estate on the basis of one act of adultery, it certainly could have done so, just as it made that distinction before in the divorce context — although then the stringent one adulterous act requirement only applied to women. However strongly the dissent may disagree with the application of the law in this case, the General Assembly specifically chose the phrase “lives in adultery” as the standard in KRS 392.090(2) — this time applying it for estate purposes to both men and women — and that standard simply was not met in this case. CONCLUSION Under KRS 392.090(2) a husband or wife is barred from participating in his or her spouse’s estate when he or she voluntarily leaves the other and “lives in adultery.” The phrase “lives in adultery” requires a showing of more than one instance of adultery.' While the adulterous activity need not be with the same man or woman, it must be periodic or recurring, a sustained or notorious activity. Because the proof in this case shows Kathy engaged in adultery only once before her husband’s death, the statutory requirement is not met and Kathy is not barred from her rights to and interest in her husband’s estate and property. We therefore affirm the opinion of the Court of Appeals, reverse the ruling of the Harlan Circuit Court and remand this matter for proceedings consistent with this Opinion. MINTON, C.J.; SCHRODER, and VENTERS, JJ. concur. CUNNINGHAM, J., dissents by separate opinion. NOBLE, J., dissents by separate opinion in which CUNNINGHAM and SCOTT, JJ., join. Footnotes [1] Griffin also presented evidence that Hal-comb was not the father of Kathy’s son, who was born on June 3, 2005, and that two years after the child's birth and well into the course of this litigation, another man had also instituted a paternity action concerning the child. The result of the second paternity action was not available at the time of trial, though Kathy testified she knew that man was not the father of her child because they had never had sexual intercourse. Kathy further testified she and Curtis did have sexual intercourse after they separated and she knew the identity of her child’s father, though the man’s identity was never revealed at trial. While Griffin presented this evidence to bolster its claim that Kathy ”live[d] in adultery," there is no evidentiary value to this line of inquiry because Griffin never established when the child was conceived or that Curtis was not the father. [2] Griffin raises two points of error before this Court. First, that the Court of Appeals should not have reviewed the circuit court’s denial of Kathy’s motion for summary judgment because it was not properly before the court and, second, that the Court of Appeals’ interpretation of the phrase "lives in adultery" was wrong. We begin with Griffin’s second claim and, as it is dispositive, need not address Griffin's claim regarding summary judgment. We note, however, that the resolution of the case would be the same under either claim. [3] This statute provided, “And if a Wife willingly leave her husband, and go away, and continue with her advouterer [adulterer], she shall be barred forever of Action to demand her Dower, that she ought to have in her husband’s lands, if she be convict thereupon, except that her husband willingly, and without coercion of the Church, reconcile her, and suffer her to dwell with him; in which case she shall be restored to her Action.” [4] The provision was part of an "Act concerning the dower and jointure of widows,” approved December 19, 1796, 1 Litt. 516. Kentucky’s initial version of the statute was largely unchanged from the English version and provided, “But if a wife willingly leave her husband, and go away and continue with her adulterer, she shall be barred forever of her action to demand her dower that she ought to have of her husband’s lands, if she be convict thereupon; except that her husband, willingly and without coercion, reconcile her and suffer her to dwell with him; in which case she shall be restored to her action.” [5] Indeed, the parties question only the meaning of the phrase "lives in adultery” and do not raise any issues concerning the interpretation or application of the other requirement, that the spouse "voluntarily leaves” the other. We note, however, there may be concerns about the voluntariness of Kathy's "leaving” in this case, given the fact that Curtis moved out of the marital residence; Griffin’s testimony at trial that Curtis had a temper; Kathy’s testimony that Curtis beat her, causing her to leave their home and stay with her parents for a period of time; and the domestic violence order Kathy secured against Curtis. We do not address the "voluntarily leaves” requirement in part because the parties did not raise the issue and in part because it is not necessary for the resolution of this case, as our finding regarding the meaning of "lives in adultery” is dispositive. [6] Ky. Stat. § 2117 was recodified as KRS 403.020 in 1942 pursuant to Ky. Acts ch. 208, sec. 1 and repealed altogether in 1972, pursuant to Ky. Acts ch. 182, sec. 29. [7] The husband in Baker was found to have been "living in adultery” where witnesses testified the husband had been frequently and publicly consorting "with a common prostitute and inmate of a Megowan street bawdy-house.” 124 S.W. at 867. Though none of the witnesses saw the husband commit the act of adultery, "a man so lost to all sense of decency as to openly consort with harlots on the streets of a populous city and to be frequently seen with them in a house of ill fame, and there availing himself of the usual means and opportunities for sexual intercourse with them, will be presumed to have given free rein to his lustful propensities, and to have committed the act of adultery with each opportunity.” Id. [8] This discussion pertains to Justice Cunningham's dissenting opinion. The points raised in Justice Noble’s dissent are largely addressed in the course of this opinion.