dissenting:
This case presents one simple issue. Who gets the workers’ compensation money from the estate of the dead Curtis Rice — the loving, nurturing mother of the deceased or the adulterous and absent wife?
The majority opinion today projects this Court into the sordid business of deciding how many times a person must have sex outside of marriage before deemed to be “living in adultery.” In doing so, we place more emphasis on the sex than the marriage. We are also losing sight of the real purpose of the statute. This Court should not have to continually review the sex lives of married couples in order to determine how many acts of infidelity constitutes a death sentence to the marriage.
On September 12, 2004, thirty-year-old Curtis Rice was tragically killed when struck by a piece of steel at his place of *206employment. Curtis was fighting drug addiction, working double shifts, and living with his mother, Jackie Griffin. As a mother, she had suffered through his addiction, once attempting to get a court order to have him committed to a rehab center. At the time of his death, it looked like Curtis had finally turned the corner. His meager estate — other than the workers’ compensation award — was made up of a few junk ears and some personal property, amounting to about $1,000.
Young Curtis had been married for four short months to Kathy Rice. At the time of his death, he and Kathy had been living separate and apart for over three months. Divorce papers had been filed. Kathy had obtained an order to keep Curtis away from her. There were no plans by either party for reconciliation. The trial court found that, on the night before the death of Curtis, Kathy committed adultery with Bill Halcomb. She had been dating Hal-comb for some time and began living with him after Curtis’s death. After the death of her estranged husband, according to Appellant’s brief, Kathy made claim to the $60,000 workers’ compensation death benefit.
The statute was enacted for cases like this one. In reality, the two were irreconcilably separated. There was no marriage and all that was left was the signing of the paperwork.
I respectfully take issue with the majority’s assumption that the 1889 case of Goss “indicates that one instance of adultery is insufficient under the statute,” and that “there must be more than one instance of adultery for a husband or wife to ‘live in adultery’ under KRS 392.090(2).” This seems to be a total reconstruction of what the case actually states. Said our state’s highest Court in Goss over 120 years ago:
This statute 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, (Emphasis added.)
Goss v. Froman, 89 Ky. 329, 12 S.W. 387, 390 (1889). One time clearly may be the only time that it is either “convenient” or “opportunity is afforded.”
What about a spouse who lives with another partner for five years, but only has a sexual relationship once because of physical disability or disease of one of the parties? Or the woman who has sex with a man one time before they are separated by war for many years, yet maintains a torrid correspondence with him during an uninterrupted absence from her spouse? Or an errant spouse who continues to live with her paramour when sexual relations cease after one time because of religious, psychological, or emotional issues? Only the imagination limits the myriad of situations which this Court may be called upon to decide.
Do we really want to?
The key word in Goss is not adultery, but abandonment. The trial court has fashioned a reasonable and workable interpretation of the statute which carries out its exact purpose. The act of adultery is simply the triggering device. The emphasis is placed on the “living.” Are the two “living” as a married couple or has the marriage been abandoned?
Let’s be sensible. The determination of whether a person is “living in adultery” must be left to the trial court to be determined by the totality of the circumstances. That includes the numerous factors which Judge Payne considered in this case. The *207trial court has provided a workable standard for this thorny statute. First, the court must find the triggering event of at least one act of adultery. Secondly, the court must determine under the totality of the circumstances whether one party has abandoned the other and the two exist in basically a non-marriage.
Justice Abramson has herself spoken to the lethal impact of adultery upon a marriage in our case of J.N.R. v. O’Reilly, 264 S.W.3d 587, 603 (Ky.2008). In her reflective and well-measured dissent, she said that the “marital relationship on which our society is based ceased when that third party entered the picture.” Intent of the parties determined from the totality of the circumstances becomes the major factor— not the sex act.
The factual determination of the trial court should be reviewed under an abuse of discretion standard. Liberty National Bank & Trust Co. v. Kummert, 305 Ky. 769, 205 S.W.2d 342 (1947). Under the facts of this case, it surely cannot be concluded that the trial court was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Sexton v. Sexton, 125 S.W.3d 258, 273 (Ky.2004).6
One finding of the trial court is conveniently overlooked by the majority. The trial court noted that Kathy Rice had a child less than nine months after the death of Curtis. The child did not belong to Billy Halcomb. So, was it one act of adultery or two? There we go counting again. It really makes no difference. Once was enough for this broken marriage.
The majority’s attempted use of foreign state authority is unconvincing. The aeientl825 Virginia Stegall case simply upheld the evidence as supporting an “open state of adultery.” Likewise, the 1876 Indiana Goodwin decision only held that the evidence was sufficient to support the finding that the adulterous wife was “living in the practice of adultery.” Neither of these cases established a minimum threshold for adultery nor did they decree that one time is not enough. The only case of this century cited by the majority is the North Carolina decision in Estate of Montgomery, It is clearly distinguishable. In that case, the parties lived together for three years and had a child. That court said that summary judgment for the widow was in order because there was no proof that she committed even one act of adultery. (“Indeed, the evidence fails to raise a genuine issue of material fact regarding whether Respondent committed any acts of adultery.” In re Estate of Montgomery, 137 N.C.App. 564, 528 S.E.2d 618, 621 (2000)).
I would hope that this Court, reputedly in last place for setting the pace for other state supreme courts to follow, would lead the way in giving modern guidance to this ancient and ambiguous statute.
Lastly, I respectfully submit that the majority misses the point of the relevancy of the post-mortem sexual behavior of Kathy Rice. I’m speaking of the relevancy of Kathy Rice continuing the sexual relationship with Bill Halcomb for eight to nine months after the death of her husband. It begs the point to say that the act of adultery cannot be committed against a dead spouse. Of course that is true. But there has always been an expected interval of decent “grieving” when one spouse dies before sleeping with another man or woman — at least in cases where there was still a marriage in fact and not just in law. The seamless continuation of Kathy’s relationship with Halcomb after her act of adultery and the sudden and tragic death of her young husband is probative evidence as to her state of mind toward her marriage to Curtis at the time of his death. It is further proof that there was no sacred bond of marriage between the two which *208would entitle her to the benefits of the statute. '
The purpose of KRS 392.090(2) is not to punish. It is not even intended to give rise to a cause of action, as adultery was in the pre-no fault divorce days. The statute deals with pure equity, not marital discord or termination. The clear intention is to preclude delinquent spouses, with unclean hands and who have totally abandoned the marital bed, to return at the graveside of their wronged husbands or wives and unjustly enrich themselves because of a relationship long-time spurned. Future generations of this Court will lament we did not affirm the trial court and fashion a decision here today which would have spared them the role of forever counting sexual trysts of partners to a dead marriage. And we must now turn to the mother of young Curtis Rice and tell her that the state’s highest Court simply did not think her departed son had been cuckolded enough. Maybe a couple more times would have done it.
I respectfully dissent.
NOBLE, J.,dissenting:
I do not disagree with the majority that KRS 392.090(2) requires more than a single act of adultery, standing alone, to create the forfeiture of the adulterer’s right to inherit from his or her spouse’s estate. The language in the statute requires that the adulterous spouse “lives in adultery,” language which implies that there must be something more than merely committing adultery. However, it is my view that a single act of adultery, plus other relevant facts, can constitute living in adultery. This view takes a “totality of the circumstances” approach that seems more reasonable to me than counting acts of adultery. It also requires a case-by-case analysis. As always, the trial court is in the best position to judge the facts of a case. Here, the trial court gave greater weight to the testimony of Billy Halcomb, who admitted to having sex with Kathy Rice the day before her husband, Curtis Rice, died. Halcomb described a dating relationship with Kathy that began two days prior to Curtis’s death. He and Kathy went out together on Friday, and again on Saturday. The date on Saturday was to a bar, where he testified that they became intoxicated and later had sex. Further, the dating relationship continued after Curtis’s death, and culminated in Billy and Kathy living together subsequent to Curtis’s death for 8 or 9 months. While the continued relationship clearly could not be adulterous due to Curtis’s death, it is nonetheless evidence of Kathy’s intent when she began the relationship with Billy: an intent to live in a relationship with Billy that began before Curtis died and was definitively adulterous while he lived. Thus it appears that Kathy began the relationship with the intent of living in adultery with Billy, and in fact did so for two days.
While adultery has been legally defined as requiring sexual congress,9 clearly a sexual act alone is not the extent of living in adultery. There must also be a knowing abandonment of the marital relationship. Here, the trial court knew that Kathy had filed for divorce six months after the marriage, and the parties were living *209apart. In fact, the marriage had only lasted seven months on the date of Curtis’s death. During that time, Kathy had filed for domestic violence protection, which banned Curtis from going around her. Nonetheless, she remained a married woman, and when she chose to date prior to obtaining her divorce, she manifested clear intent not to “hold herself only unto Curtis.” By beginning a dating relationship with another man and having sex with him while still married to Curtis, she was living in adultery. It is a matter of happenstance that she only did so briefly.
Further, this Court is required to give deference to the fact-finding of the trial court. I cannot say Judge Payne was clearly erroneous in his findings regarding the facts of this case. Nor do I agree that he misapplied the law. Instead, he did a totality of the evidentiary circumstances analysis that I doubt even any lay person would have a problem understanding. I believe the majority analysis is too focused on the number of times sex occurred rather than how it came about and what the adulterer’s intent was, and thus reads the statute in such a strict and counter-intuitive way as to risk gutting the intent of the statute.
That said, I do question whether a statute such as this serves a sound public policy in today’s world. Divorce is now no-fault, and an act of adultery is not the necessary death knell of a marriage formerly required in fault-based law. Thus unless this statute is viewed as having some fault base to the extent of at least examining the adulterous party’s intentions, there is little reason to still have it on the books.
CUNNINGHAM and SCOTT, JJ., join.
. See, e.g., Black's Law Dictionary 56 (8th ed. 2004) ("Voluntary sexual act between a married person and someone other than the person's spouse.”); see also Baker v. Baker, 136 Ky. 617, 124 S.W. 866, 867 (1910) ("[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.”).