Boozer v. Boozer, 18059

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: BUSSEY; TAYLOR
• Citation: 242 S.C. 292,130 S.E.2d 903
• Parties: Simon W. BOOZER, Respondent, v. Frances H. BOOZER, Appellant.
• Docket Number: No. 18059,18059
• Decision Date: 24 April 1963

Page 903

130 S.E.2d 903 242 S.C. 292 Simon W. BOOZER, Respondent,
v.
Frances H. BOOZER, Appellant. No. 18059. Supreme Court of South Carolina. April 24, 1963.

Long & Long, Union, Lybrand, Simons & Rich, Aiken, for appellant.

[242 S.C. 293] Henry Busbee, Aiken, for respondent.

BUSSEY, Justice.

This action was instituted on January 26, 1962 by the respondent husband for a divorce on the ground of desertion for a period of one year. Section 20-101(2), 1962 Code of Laws of South Carolina. The appellant wife denied that she was guilty of desertion. The Master of Aiken County, to whom the cause was referred, filed his report in which he found that the wife deserted the husband on January 13, 1961, and recommended the granting of a divorce to the respondent. Upon exceptions to the findings of fact and legal conclusions contained in the Master's report, the circuit

Page 904

court rendered a decree affirming the Master's findings of fact as to desertion and granting a decree of divorce to the husband on that ground.

[242 S.C. 294] The case comes to this court upon a number of exceptions. In our view of the record, however, it is only necessary to pass upon whether or not there was sufficient evidence to support the findings of fact that the wife had deserted the husband for the requisite statutory period of time.

On this question we are bound by the rule that in an equity case where the findings of fact by a master are concurred in by the circuit judge, such are conclusive upon this court and will not be disturbed unless it is shown that such findings are without any evidence to support them, or are against the clear prepondernance of the evidence. Oswald v. Oswald, 230 S.C. 299, 95 S.E.2d 493.

The essential elements of desertion, to warrant a divorce on that ground under the law of this state, are (1) cessation from cohabitation for the statutory period of one year; (2) intent on the part of the absenting party not to resume it; (3) absence of the opposite party's consent; and (4) absence of justification. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225; Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629.

In this appeal we only need to consider whether there was any competent evidence to support the first essential element above mentioned. We conclude from a review of the recrod that there was not.

The parties with their two children were, for some time prior to January 13, 1962, living together in Aiken. On that date, the wife took the two children and a substantial portion of the furniture and departed for Untion, her former home, where she secured living quarters for herself and the children, and thereafter maintained at one place or another in Union living quarters for herself and children until after the commencement of this action. The husband continued throughout the same period to maintain the same place of abode in Aiken.

The circumstances giving rise to the departure of the wife and children are in dispute. Facts not in dispute, however, [242 S.C. 295] are as follows. Due to differences which arose prior to January 13th, the husband was willing for the wife to remain in the home in Aiken only on conditions, one of which was that the parties would reside there as husband and wife, in name only, for the sake of the children. The husband sought to obtain the return of his wife to Aiken, but under the foregoing conditions, and she declined to return under those conditions.

The husband has...