Barstow v. Barstow
| Decision Date | 10 February 1953 |
| Docket Number | No. 16716,16716 |
| Citation | 74 S.E.2d 541,223 S.C. 136 |
| Parties | BARSTOW v. BARSTOW. |
| Court | South Carolina Supreme Court |
Walter J. Bristow, Jr., Columbia, Edward W. Bridgham, Bath, Me., for appellant.
John I. Rice and Winter & Winter, Columbia, for respondent.
This action was brought on September 12, 1951, by the husband for a divorce on the grounds of physical cruelty and desertion. The only allegations in the complaint in support of these grounds are "that on occasion the defendant has struck this plaintiff with a spiked shoe, and on account of such physical and mental cruelty, plaintiff finds living with defendant impossible and unbearable"; and that the defendant "has constantly nagged and abused this plaintiff, so much so that plaintiff has been forced to leave and live separate and apart from defendant."
The foregoing charges were denied by the wife, who also pleaded condonation. Thereafter she was allowed to amend her answer by adding as a further defense a plea of recrimination.
It was agreed between counsel that the testimony of the wife and the nonresident witnesses could be presented by affidavits rather than by depositions. The case was heard by the County Judge on these affidavits and the testimony of the husband. Thereafter on December 3, 1951, a decree was filed granting the husband a divorce a vinculo matrimonii upon the grounds alleged in the complaint. The wife has appealed.
The parties, whose ages are not disclosed, were married in the State of Maine on June 20, 1936. They have two children a son and daughter, aged thirteen and eleven, respectively. The wife, with the children, continues to reside in Maine. The husband has been in the army for a number of years and has attained the rank of sergeant. He claims that shortly after returning from overseas in 1946, the cruel conduct of his wife compelled him to leave the home and there has since been no cohabitation between the parties. He admits going to Maine in March, 1951 but stated that the purpose of this trip was to see about his children at a time when his wife was in the hospital, and that he only remained in Maine for two days. He claims that for a period of more than twelve months he has been a resident of South Carolina.
In support of the charges made in the complaint, the husband testified on direct examination, as follows:
On cross-examination, he testified:
The husband also offered affidavits by two women who, after saying that they had known the parties for a number of years and had visited in their home, stated that they knew of their own knowledge that the wife "did on a number of occasions strike, bruise and otherwise inflict physical punishment upon her husband" and did "continuously nag and abuse" him.
The testimony of the wife was presented in the form of an affidavit. She denied the charges made by her husband and stated that she had always been kind and considerate. She said that for a period of about six years her husband had been going with other women, by one of whom he had a child, and that she had reproved him for this unfaithfulness. She claimed that her husband had sought to induce her to get a divorce for the purpose of marrying one of these women. She denied that they had been separated since 1946 and claimed that during this period he came home from time to time on furlough when they lived together as man and wife. She said that her husband visited her for two months during the early part of 1951 and on this visit they had sexual relations.
Attached to the wife's affidavit were a number of letters tending to show that she and her husband had never separated and that he wanted a divorce for the purpose of marrying someone else. She also offered a number of affidavits by friends and neighbors to the effect that when the husband visited Maine during the early part of 1951, he stayed with his wife.
Before entering into a discussion of the questions raised by the exceptions, it should be stated that the respondent made no claim to custody of the children and conceded his liability for their support. Accordingly, the Court below placed them in the custody of appellant and required respondent to pay her $100 a month for their support and maintenance. This appeal relates solely to the question of whether the Court below erred in granting respondent a divorce a vinculo matrimonii.
The only form of cruelty recognized in South Carolina as a ground for divorce is "physical cruelty". There is no well defined rule which may be followed as a test in determining the question as to whether or not certain acts constitute physical...
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