As I’ve written before, I read a lot of appellate opinions on Tennessee family law, far more than make it onto this blog. For the most part, that amounts to what many would consider a rather dry reading list. Appellate judges will occasionally flash a little sarcasm or make a tongue-in-cheek comment, however. When that occurs, it needs to be recognized.
The reigning World’s Most Awesome Judge — Judge Frank Clement, Jr. — set the bar high last July with his there-is-a-hole-in-this-argument opinion. Now Judge Holly Kirby comes along to take the crown with another classic opinion.
The parties were divorced after 19 years of marriage. The trial court granted Wife a divorce based on Husband’s adultery. Wife was also awarded transitional alimony and alimony in futuro, for which “the relative fault of the parties” is one of many factors to be considered.
Husband appealed the alimony award and, among other arguments he asserted, he flatly denied that he committed adultery during the parties’ marriage.
Judge Kirby examined Husband’s argument by discussing the trial court record in detail. Here’s what the evidence revealed regarding Husband’s alleged adultery.
Wife arrived home one night after spending the weekend in Nashville visiting her sister. When she walked in the home, the marriage came to a “screeching halt.” She found Husband in the kitchen in his pajama pants and a t-shirt. She also found a woman (hereafter referred to as “Other Woman”) sitting on the couch in the den, wearing only a pink negligee and a “shawl” over her shoulders, and smoking a cigarette. Perhaps not surprisingly, Wife “went ballistic” and began yelling numerous epithets at both Husband and [Other Woman]. Husband described [Other Woman] as a “friend.” Husband and [Other Woman] quickly left the marital residence together. They both went to [Other Woman's] apartment for the night.
As it turned out, the pink negligee [Other Woman] was wearing on the night in question was purchased that same day at an adult superstore called “The Lion’s Den.” On cross examination, counsel for Wife presented Husband with a receipt for the negligee, as well as sexual paraphernalia, for a total of $81.17, purchased that afternoon.
Other Woman’s testimony at trial was summarized as follows:
Asked about the night Wife came home and found her at the parties’ marital home, [Other Woman] explained that she had contacted Husband as her landlord because an ex-boyfriend whom she described as a stalker “had a knife to my throat and beat me up.” Presumably to reassure [Other Woman] after the upsetting incident with the ex-boyfriend, Husband took [Other Woman] for a shopping spree at the adult superstore, where they purchased the pink negligee and other items, and then he brought her to the marital home. When Wife came home from visiting her sister, [Other Woman] said, “All I was doing is sitting there” on the parties’ couch in the marital home wearing the pink negligee. [Other Woman] complained: “[S]he come in — [Wife] come in, didn’t ask no questions whatsoever, very violent, ‘Bitch, whore, slut, prostitute,’ all that. She didn’t even know me.”
Wife’s also testified about the incident.
That night, she said, when she came in the door, she first saw Husband in his pajama pants and then saw [Other Woman] sitting in her den in the pink negligee, smoking a cigarette. Before she could say anything, Wife said, Husband turned to [Other Woman] and said: “[Other Woman], we haven’t had sex here, have we?” In the ensuing conflagration, Wife said, [Other Woman] went into the bedroom to change out of the pink negligee, and Wife followed her into the bedroom. At that point, she said, she saw that [Other Woman] had brought an overnight bag to the parties’ home. Husband and [Other Woman] quickly left the marital residence, but left behind the bag from the shopping trip to the adult superstore, “The Lion’s Den.” The bag contained unopened items that Husband and [Other Woman] had purchased that day, and elsewhere in the parties’ home Wife found opened packages from other items they had purchased at the same store. The day after this incident, Wife went to [Other Woman's] apartment. Husband answered the door naked, and Wife saw the infamous pink negligee behind him on the living room floor of [Other Woman's] apartment.
In a footnote, the opinion notes that “[o]ne of the items Wife found opened was called ‘BJ Blast.’”
At trial, Husband still maintained that he and Other Woman were still nothing more than platonic friends. The evidence suggested otherwise, however.
Contrary to Husband’s sworn interrogatory answers, Husband conceded that [Other Woman] spent the night in his apartment once or twice each week, but he explained that she did so because she sometimes needed a break from her mother. Husband also admitted that he had gone on a hunting trip in Texas with [Other Woman], and that [Other Woman] also accompanied him on two trips to Kentucky to visit his daughter from a previous relationship. Despite these admissions, Husband steadfastly denied any affair with [Other Woman]: “I’m not having an affair with [Other Woman]. Never have. . . . She’s a friend.”
On appeal, Husband argued the preponderance of the evidence did not support the trial court’s finding that he was guilty of adultery. The Court responded as follows:
Finally, Husband argues that the evidence does not support the trial court’s finding that he committed adultery, because Wife submitted “no proof of sexual relations.” This argument verges on the preposterous. The record need not include DNA evidence to support the trial court’s finding of adultery by Husband. Therefore, we reject all of Husband’s challenges to the trial court’s factual findings.
Well played, Judge Kirby. Until one of your colleagues steps forward to claim your crown, you are officially the World’s Most Awesome Judge.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.