Users of Cloud-Connected Cellphones Unintentionally Providing Proof of Adultery

Imagine you come home from work one day and get on your family computer that you share with your spouse, and perhaps children.  You promised a friend or relative you would send photos from your last vacation and you are ready to cross it off your To Do list.  You open the folder containing your pictures only to discover recent photos your spouse took of themself kissing someone else.  Needless to say, you are stunned and shocked.  While this scenario may seem unlikely, it is one that I am encountering variations of with ever-increasing regularity in consultations (though typically with evidence which may not be so G-rated).  Some blogs have termed this “the ‘cheating spouse outed by iCloud’ scenario.”[1]

If you are like most people, technology may not be your strongest suit.  In light of this fact, I will explain the implications of cloud-connected cellphones as simply as possible, specifically through the lens of Apple products for clarity’s sake.  However, I must emphasize that although I will use the term iCloud, the technological implications of cloud-connected devices are by no means limited to Apple devices.  Android devices are cloud-connected and allow a user to sync photos, applications (apps), email, and other content.[2]  In fact, most cellphones now operate with a cloud-connected automatic-syncing mechanism for selected content.

New Apple devices, like the iPhone and iPad, come equipped for iCloud when purchased.[3]  When setting up a new device, the user is prompted to choose whether to use iCloud or not and this choice may be adjusted later in the Settings menu.[4]  According to Apple, “iCloud automatically and securely stores your content so it’s always available to your” devices or computers.[5]  While what content is stored on iCloud is ultimately determined by the user, content can include music, photos, documents, calendar appointments and reminders, email, contact information, and more.[6]  Some of this content may seem innocuous enough, but some can evidence a spouse’s adultery.

Among the many features of iCloud is Photo Stream—when a user takes a photo on one device, it automatically appears on the user’s other devices and computers.[7]  For some, this could include a shared family computer.  Until the iCloud Control Panel 1.1 update, photos deleted from Photo Stream were not  automatically deleted from the Photo Stream download folder.  Some cheating spouses have been caught in this way:  taking pictures with a paramour in varying levels of incrimination, which automatically appear on a shared computer at home, where the other spouse inadvertently discovers this evidence of adultery.

Another feature of iCloud enables a user to access documents, which are automatically updated, on multiple devices through the use of applications, or apps.[8]  For example, say you use an app, like Dropbox,[9] OneNote,[10] or Evernote[11], to edit and organize documents on multiple computers and devices:  Think back to the scenario with pictures and Photo Stream, the same thing could happen with your documents.  Although this may seem like it has no context in family law, documents can contain financial evidence or even proof of adultery (a cheating spouse might keep a list saved on the family computer, innocently titled “My List,” describing his or her extra-marital sexual encounters)[12] which may be relevant to a divorce or custody matter.  Additionally, these apps are not limited to storing text documents; almost any files, including images, can be stored as well.

In South Carolina, adultery is a fault ground for divorce, and a finding typically bars alimony.[13]  Proof must be “clear and positive,” establishing the adultery “by a clear preponderance of the evidence,” or evidence that “which convinces as to its truth.”  Adultery may be proven through circumstantial evidence establishing inclination and opportunity:  “[P]roof must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed.”  However, “sexual intercourse is not required to establish adultery; sexual intimacy is enough.”  Photographs of an unclothed spouse, paramour (lover), or spouse and paramour together could indicate adultery.  Evidence supporting a romantic relationship establishing adultery can include “love letters, romantic cards, hand-holding, hugging, kissing, or any other romantic demonstrations or actions between” a spouse and the paramour.[14]  This could include photos documenting romantic encounters.

Before you start scouring your home computer for evidence of your spouse’s adultery, consult with an attorney.  Some methods of obtaining electronically stored information may violate federal or state law and could create criminal or civil liability.  If you have already inadvertently discovered what you believe is evidence of adultery, you should consult with an attorney to determine the best course of action according to the specific facts and circumstances of your case.

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[1] http://www.tuaw.com/2011/08/09/apple-id-account-device-limits-gain-attention/

[2] http://www.android.com/about/ice-cream-sandwich/

[3] http://www.apple.com/icloud/what-is.html

[4] http://www.apple.com/icloud/setup/

[5] http://www.apple.com/icloud/what-is.html

[6] http://www.apple.com/icloud/features/

[7] http://www.apple.com/icloud/features/photo-stream.html

[8] http://www.apple.com/icloud/features/documents.html

[9] https://www.dropbox.com/

[10] http://office.microsoft.com/en-us/onenote/?CTT=97

[11] http://www.evernote.com/

[12] Stafford v. Stafford, 641 A.2d 348, 349 (Vt. 1993).

[13] Brown v. Brown, 379 S.C. 271, 665 S.E.2d 174, 178 (2008).

[14] Id. at 179.

South Carolina Supreme Court Changes Position on College Expenses and the Non-Custodial Parent

On March 7, 2012, the South Carolina Supreme Court did something uncharacteristic of a court usually predicted to follow precedent:  In an opinion authored by Justice Kaye G. Hearn, the Court overruled Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010) (holding that an equal protection violation occurs when a court is enabled to order a parent to contribute to his or her child’s college expenses merely because that parent was subject to a support order when the child turned eighteen), and returned to the reasoning of Risinger v. Risinger, 273 S.C. 36,  253 S.E.2d 652 (1979) (granting family court judges the ability to require a parent to contribute financially to the educational needs of a child over the age of eighteen, including college expenses, upon presentation of certain evidence) and its progeny.

In McLeod v. Starnes, Op. No. 27100 (S.C. Sup. Ct. filed Mar. 7, 2012) (Shearouse Adv. Sh. No. 9 at 39), the Court reexamined Webb and determined that strict scrutiny was mistakenly utilized, rather than the proper rational basis test, in finding there had been an equal protection violation.  Strict scrutiny generally leads to a presumption against the law or government action called into question, unlike the rational basis test, which presumes it should be upheld.  Under this rational basis test, the distinction made by the government action or law must merely have some “rational” relation to a “legitimate” government interest.  In McLeod, the Court recognized the State’s strong interests in the welfare of its youth and in ensuring those youth are educated to become more productive members of society.

Cognizant of the possibility that most non-divorced parents “support their children through college years,” the Court also noted that “even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.”  While the Court did not grant an “absolute right to a college education,” it did recognize that the Risinger factors attempt to provide a child whose parents, excepting the divorce, “would otherwise have paid” college expenses with the benefit of a college education.  When these limited circumstances were reexamined under rational basis, no equal protection violation was found:

While it is certainly true that not all married couples send their children to college, that does not detract from the State’s interest in having college-educated citizens and attempting to alleviate the potential disadvantages placed upon children of divorced parents.  Although the decision to send a child to college may be a personal one, it is not one we wish to foreclose to a child simply because his parents are divorced.

The facts in McLeod showed exactly what Risinger attempted to prevent:  A non-custodial parent refusing to contribute to the college expenses of his or her child for “no defensible reason.”  The parent in this case had “more than adequate means” to provide financial support and the child “truly desire[d] to attend college,” causing the Court to posit that the parent’s reasoning for refusal to contribute was merely “the shield erected by Webb”:  “Had Father and Mother remained married, we believe Father undoubtedly would have contributed towards [child]’s education.”  The Court went on to reaffirm the “harsh and unfortunate reality” Risinger seeks to address:  “[S]ometimes the acrimony of marital litigation impacts a parent’s normal sense of obligation towards his or her children.”  The factors outlined in Risinger require “evidence that: (1) the characteristics of the child indicate that he or she will benefit from college; (2) the child demonstrates the ability to do well, or at least make satisfactory grades; (3) the child cannot otherwise go to school; and (4) the parent has the financial ability to help pay for such an education.”

It is of note that the non-custodial parent in McLeod was barred from utilizing an alternate argument regarding the appropriate classification for the equal protection challenge because it was not used before the family court and thus preserved for appeal.  In front of the family court, the parent argued for divorced parents versus non-divorced parents being the appropriate classification.  Subsequently, the parent argued for a classification consistent with Webb:  parents subject to a child support order when emancipation occurs as compared to parents not subject to such an order at that time.