Capone v. Capone
962 So. 2d 835 (Ala. Civ. App. 2006)

Facts:

  • The Capones were married in April 1984.
  • In late December 2004, the parties separated and the husband sued the wife for a divorce.
  • The wife counterclaimed for a divorce, alleging that the husband had committed adultery with J.T.
    • J.T. and the husband would speak to each other regularly on the telephone and J.T. and the husband both lied to her about going on a temporary-duty assignment (“TDY”) to Texas in November 2004.
    • The wife also photographed the husband and his father’s truck, which the husband was using, outside J.T.’s apartment on January 1, 2005.
      • He also lied when asked where he was.
    • However, H said they were only friends and the only times he stayed the night at her house was when H and W separated – and he claimed he slept in the guest bedroom.

History:
After a trial, the trial court entered a judgment divorcing the parties on the grounds of adultery, incompatibility of temperament, and irretrievable breakdown of the marriage.

  • H appealed.

Issue:
Whether the evidence at trial was sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.

Holding:
No. Case reversed.

Reasoning:

  • “While it is difficult and somewhat rare to prove adultery by direct means, the charge of adultery in a divorce case may be proven by circumstantial evidence which creates more than a mere suspicion. Proof to support the charge of adultery must be sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.
  • Here, the court found that the evidence wasn’t strong enough and simply constituted mere suspicion.
  • In short, this case shows just how hard this is to prove.

Rule: The charge of adultery in a divorce case may be proven by circumstantial evidence which creates more than a mere suspicion. Proof to support the charge of adultery must be sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.