Bigham v. Bigham, 19759
| Citation | 202 S.E.2d 177,262 S.C. 62 |
| Decision Date | 16 January 1974 |
| Docket Number | No. 19759,19759 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Faye Fowler BIGHAM, Appellant, v. Russell Andrew BIGHAM, Respondent. |
Culbertson & Whitesides, Laurens, for appellant.
Wyatt Saunders, Jr., Laurens, for respondent.
Upon the petition of the appellant-wife that the respondent-husband be held in contempt of court for his alleged wilful failure to make alimony payments as previously ordered, The Civil and Family Court of Laurens County, after an evidentiary hearing, entered an order (1) adjudging respondent in contempt of court with the requirement that he make the payments in arrears, or be placed in jail upon his failure to do so; and (2) relieving respondent of all obligation to make further alimony payments upon a finding that appellant had been guilty of adultery. This appeal involves only the latter part of the foregoing order, there being no appeal from the provisions adjudging respondent in contempt of court.
While there are other assignments of error, we need only consider appellant's exception which charges that the lower court erred in entering an order relieving respondent of the obligation to make further alimony payments because of appellant's alleged adulterous conduct. Appellant contends that the lower court was without authority to enter such order because she had no notice the questions concerning her conduct and right to future alimony were issues for determination in the contempt hearing, thereby depriving her of her right to prepare for trial.
This proceeding was begun in the lower court by the issuance of a Rule directed to respondent to show cause why he should not be adjudged in contempt of court for failure to make alimony payments as previously directed by an order of the court dated February 8, 1973. The Rule was based upon the petition of appellant charging that respondent had failed for several weeks to make the required alimony payments. Respondent made no written return, but appeared at the hearing, with his counsel and witnesses, in response to the Rule.
While no written return is required in The Family Court (Rule 5, Rules of Practice and Procedure in The Family Court Vol. 15, p. 73, Cumulative Supplement to 1962 Code) the record fails to disclose that any oral return was made, other than an off-the-record conversation between counsel relative to the introduction of certain testimony, the nature of which was not disclosed for the record at that time. Therefore, the sole issue before the court was whether respondent was guilty of contempt.
During the trial in the lower court, the only defense asserted to the contempt charges was that respondent had refused to make the alimony payments because appellant had been, allegedly, guilty of adulterous conduct during the period in question. Testimony relating to the charge of misconduct was permitted over the strenuous objections of appellant. These objections were based upon the grounds that such testimony was irrelevant because (1) it constituted no defense to respondent's failure to make the alimony payments in question and (2) no prior notice had been given to appellant that her alleged misconduct was an issue in the cause.
At the conclusion of the hearing, the...
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Bigham v. Bigham, 19975
...Justice: This is the second time an action dealing with these parties' domestic relations has reached this Court. See Bigham v. Bigham, 262 S.C. 62, 202 S.E.2d 177 (1974). The matter currently before the court involves the propriety of a retroactive modification of accrued support payments ......