Boozer v. Boozer

Decision Date24 April 1963
Docket NumberNo. 18059,18059
Citation242 S.C. 292,130 S.E.2d 903
CourtSouth Carolina Supreme Court
PartiesSimon W. BOOZER, Respondent, v. Frances H. BOOZER, Appellant.

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

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 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.

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, 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 several occupations, his principal one being an employee at the Atomic Energy Plant in Aiken County, where he is engaged in shift work. The wife is a trained nurse by profession and was employed in her profession in Union where during most, if not all, of the period of the time involved here she worked at night. As a result of the husband's shift work, he had alternately long weekends and on these long weekends he regularly visited the family in Union, staying three or four nights at a time in the living quarters occupied by his wife and children. The wife, in turn, with considerable frequency, took the children back to Aiken where they occupied the same abode as the husband. During the period of time the parties went on two vacation trips with the children.

The husband testified that on his regular visits to Union, the vacation trips and the wife's visits to Aiken, he did not at any time have marital relations with his wife. He insists that on his regular visits to Union, with his wife working at night, he never occupied the bed in which she slept, with or without her, but that he slept on the couch in the living room. With respect to the wife's trips to Aiken, he insists that between shift work and otherwise, he avoided sleeping with his wife, and that on the vacation trips he and his wife occupied separate rooms. The wife's testimony on this point is to the contrary, she maintaining that normal marital relations were maintained...

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8 cases
  • Theisen v. Theisen
    • United States
    • South Carolina Supreme Court
    • 19 Septiembre 2011
    ...... in such a manner that those in the neighborhood may see that the husband and wife are not living together.” Boozer v. Boozer, 242 S.C. 292, 296–97, 130 S.E.2d 903, 905 (1963) (internal citations and quotations omitted); accord Whitman v. Whitman, 223 Ala. 557, 137 So. 666, 666 (1931) (“......
  • McLaughlin v. McLaughlin
    • United States
    • South Carolina Supreme Court
    • 13 Mayo 1964
    ...by plaintiff. They occupied the same living quarters and there is a presumption that they engaged in marital relations. Boozer v. Boozer, 242 S.C. 292, 130 S.E.2d 903. 'Condonation may be presumed from cohabitation; and lapse of time, or a continuance of marital cohabitation with knowledge ......
  • Brown v. Brown
    • United States
    • South Carolina Supreme Court
    • 31 Diciembre 1963
    ...part of the absenting party not to resume it; (3) absence of the opposite party's consent; (4) absence of justification.' Boozer v. Boozer, 242 S.C. 292, 130 S.E.2d 903. See also, Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225; Machado v. Machado, 220 S.C. 90, 33 S.E.2d The husband here no......
  • Bennefield v. Bennefield
    • United States
    • South Carolina Supreme Court
    • 11 Noviembre 1974
    ...with the husband does not constitute cessation from cohabitation so as to constitute desertion as a ground for divorce. Boozer v. Boozer, 242 S.C. 292, 130 S.E.2d 903; Adams v. Adams, 244 S.C. 143, 135 S.E.2d 760; Vickers v. Vickers, 255 S.C. 25, 176 S.E.2d Since the husband failed to estab......
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