Popham v. Popham

Appellant Gary Popham appeals the denial of his motion for new trial in this divorce case. Having reviewed the record, we conclude there is no merit to appellant’s claims that the trial court erred in making various evidentiary rulings. There being no merit to appellant’s other contentions, we affirm. Appellee Eleanor Popham filed a complaint for divorce against appellant, alleging cruel treatment and that the marriage was irretrievably broken. The case was tried before a jury, and the jury’s verdict was incorporated into the final judgment and decree. Appellee wife was awarded alimony until May 2008 in the amount of $1500 per month; several parcels of real estate; an investment account; an IRA; and other items of personalty. Appellant husband was awarded several parcels of real estate; a cabin; all interest in a business; two insurance policies; certain investment accounts; and other items of personalty. Appellant sought a judgment notwithstanding the verdict, or —alternatively —a new trial. After both requests were denied, appellant filed a timely application to appeal, which was granted pursuant to the Family Law Pilot Project.1

1. The trial court did not err in admitting limited evidence concerning appellant’s use of the prescription medicine Viagra, commonly used to treat erectile dysfunction. Among other allegations, appellee claimed that appellant used Viagra in connection with several extramarital sexual relationships occurring both before and after the couple separated. In domestic relations cases, a party may seek to prove sexual misconduct through the introduction of circumstantial evidence.2 Evidence is relevant if it logically tends to prove or disprove a material fact at issue in a case, and every act that tends to throw light upon a material fact or issue is relevant.3 Because the evidence concerning appellant’s use of Viagra was relevant to appellee’s claims of marital infidelity, it follows that the trial court did not err in allowing appellee to question appellant about why he sought Viagra from his physician and what condition he needed assistance with.4