Blakely v. Blakely

• Decision Date: 06 July 1967
• Docket Number: No. 18674,18674
• Parties: Marcel D. BLAKELY, Respondent, v. Wilhelmina G. BLAKELY, Appellant. In re Wilhelmina G. BLAKELY, Plaintiff, v. Marcel D. BLAKELY, Defendant.
• Court: South Carolina Supreme Court

Page 857

155 S.E.2d 857

249 S.C. 623

Marcel D. BLAKELY, Respondent, v. Wilhelmina G. BLAKELY, Appellant.

In re Wilhelmina G. BLAKELY, Plaintiff, v. Marcel D. BLAKELY, Defendant.

No. 18674.

Supreme Court of South Carolina.

July 6, 1967.

Jenkins, Perry & Pride, Columbia, for appellant.

Lewis & Cobb, Columbia, for respondent.

BUSSEY, Justice.

This appeal involves an issue as to alimony in a divorce action. The wife, appellant here, was granted a divorce by a decree of Judge Bates of the Richland County Court, on September 9, 1966, on the ground of physical cruelty. The decree settled certain property rights and awarded the wife alimony at the rate of $100 per month for a period of twelve months, commencing October 1, 1966. There was no appeal from the order of Judge Bates, but the husband paid no part of the alimony, and in December 1966, sought, on an alleged change of conditions, to be relieved of the payment of such, and as a result of this proceeding, Honorable Harry M. Lightsey, as acting Judge of the Richland County Court, after a hearing, modified or amended the alimony provision of the order of Judge Bates as follows:

'That beginning on January 1, 1967, and continuing thereafter on the first day of each successive month, for a total of twenty-one months, the said Marcel D. Blakely pay to Wilhelmina G. Blakely the sum of $50.00 each month; and further,

'That during the 22nd month the Petitioner shall pay to Wilhelmina G. Blakely the sum of $150.00, thus making a total of $1,200.00 as alimony.'

The wife appealed therefrom, alleging error. It appears that both husband and wife are educated persons, the husband being a public school teacher and the wife having been employed by Benedict College as Associate Comptroller. They had no children and their respective earning capacities were approximately the same. At the time of the divorce proceeding the wife had made arrangements for a leave of absence for the purpose of further pursuing her education at New York University for the scholastic year 1966--67, as a result of which she would have no earned income for approximately one year. The record leaves no doubt that it was contemplated by the parties, and by Judge Bates, that the wife would, in the normal course of events, return to gainful employment after one year. The alimony awarded was arrived at in the light of the foregoing.

The order of Judge Lightsey extended the time in which the husband would be required to pay the alimony ordered well beyond the time of the still anticipated return of the wife to gainful employment. For his order to be reversible, however, it must appear that error on his part, if any, was material and prejudicial to the substantial rights of the appellant. Anderson v. Elliott, 228 S.C. 371, 90 S.E.2d 367; Williams v. Newton, 86 S.C. 248, 68 S.E. 693.

The appeal reaches this court at a time when the wife has completed her year at New York University, and expects to return to gainful employment by October 1967. On oral argument, it was conceded by counsel for the wife that, under the present circumstances, it is immaterial whether the alimony decreed is paid pursuant to the order of Judge Bates or pursuant to the order of Judge Lightsey, as long as she receives alimony in the total amount of $1,200.00. It further developed...