Brewer v. Brewer

• Citation: 129 S.E.2d 736,242 S.C. 9
• Decision Date: 13 February 1963
• Docket Number: No. 18029,18029
• Court: United States State Supreme Court of South Carolina
• Parties: Jean C. BREWER, Appellant, v. John M. BREWER, Respondent.

Page 736

129 S.E.2d 736

242 S.C. 9

Jean C. BREWER, Appellant, v. John M. BREWER, Respondent.

No. 18029.

Supreme Court of South Carolina.

Feb. 13, 1963.

Savage, Royall & Phillips, Camden, Graydon, Davis & Sawyer, Columbia, for appellant.

Willcox, Hardee, Houck & Palmer, Florence, for respondent.

MOSS, Justice.

Jean C. Brewer, the appellant herein, and John M. Brewer, the respondent herein, are husband and wife, and were married on January 12, 1935. Two children were born of this marriage, both of whom are now sui juris.

This action was commenced in May, 1959, in the Juvenile, Domestic Relations and Special Court of Kershaw County, wherein the appellant asked for a separation from the respondent, a property settlement, support and maintenance, and counsel fees. The complaint, as a basis for the relief sought, alleged that the respondent had been flagrantly unfaithful to his marriage vows and had committed adultery. The respondent, by answer, denied the material allegations of the complaint and set out that the appellant had a substantial income of her own and that she left the home furnished by him without just cause or excuse. He also set forth a counterclaim in which he asked for a divorce on the ground of desertion. A reply to the counterclaim was made by the appellant wherein she denied the material allegations thereof.

This case was tried before the Honorable J. Douglas Montgomery, Judge of the Juvenile, Domestic Relations and Special Court of Kershaw County. He took testimony on three different occasions. On May 10, 1961, the Trial Judge filed his decree granting to the appellant a legal separation from the respondent upon the ground that his conduct with another woman was such that the appellant could no longer tolerate such and continue to live with him as his wife. He directed the respondent to pay to the appellant the sum of $500.00 per month for her life or until further order of the Court for her support and maintenance. He also directed the respondent to pay over to the appellant in a lump sum, tax free, of $75,000.00 in cash or in securities. He likewise ordered the respondent to pay appellant's attorneys' fees, and the costs of the action. The counterclaim of the respondent, seeking a divorce on the ground of desertion, was dismissed by Judge Montgomery.

The husband, in accordance with the statute setting up the Juvenile, Domestic Relations and Special Court of Kershaw County, appealed to the Court of Common Pleas. By his exceptions, the respondent challenged the correctness of the findings made by Judge Montgomery, and particularly the propriety of awarding lump sum alimony and the amount thereof. The appeal was heard by the Honorable James Hugh McFaddin, Judge of the Third Circuit, because of the disqualification of the Resident Judge of the Fifth Circuit. On February 15, 1962, Judge McFaddin issued an order in which he confirmed the decree of Judge Montgomery in all respects, except that his order denied the appellant the right to the lump sum award of $75,000.00. From that order both parties to this action served timely notices of appeal to this Court. However, the respondent has abandoned his appeal and is ready and willing to comply with the terms of the order of Judge McFaddin.

The appellant contends and characterizes her action against the respondent as one for a divorce a mensa et thoro. She further asserts that the lower Court had authority under Sections 20-113 and 20-113.1 of the Code to grant her alimony in a lump sum. We will consider this appeal upon the basis as contended for by the appellant and assume that her action was one for a divorce a mensa et thoro. The further question arises as to whether or not the Court had authority to award permanent alimony in periodic monthly payments of $500.00 and also to make a lump sum award of $75,000.00.

A divorce a mensa et thoro may be defined as a judicial decree which terminates the obligation and right of cohabitation but does not affect the status of the parties as married persons or dissolve the marriage. When a divorce a mensa et thoro is decreed there is no severance of the marriage bond. The marital status is not affected thereby; and the parties remain husband and wife, though authorized by the decree to live in separation. In the case of a divorce a mensa et thoro, the door of reconciliation is held open in the hope that the parties may, without a severance of the marriage bond ever having taken place, become reconciled to each other and resume their normal marital relations.

It is the position of the appellant that the allowance of alimony in a lump sum, or in gross, in an action for a divorce a mensa et thoro is authorized by Sections 20-113 and 20-113.1 of the 1952 Code of Laws.

Section 20-113 of the Code authorizes the Court to grant alimony in actions for divorce a vinculo materimonii and provides that:

'In any award of permanent alimony, the court shall have jurisdiction to order periodic payments or payment in a lump sum.'

Section 20-113.1 of the Code provides that:

'In all actions for divorce a mensa et thoro, allowances of almony and suit money and allowances of alimony and suit money pendente lite shall be made according to the principles controlling such allowance in actions for divorce a vinculo matrimonii.'

It is thus apparent that the statutory power of the court concerning the allowance of permanent alimony is the same in decreeing a divorce a mensa et thoro as it is in decreeing a divorce a vinculo matrimonii.

The statute authorizes the Court, in making an award of permanent alimony, to order 'periodic payments or payment in a lump sum.' Can this statute be interpreted to authorize the awarding of permanent alimony in periodic monthly payments and also in a lump sum?

All rules of statutory construction are servient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used which must be construed in the light of the intended purpose. Bohlen et al. v. Allen et al., 228 S.C. 135, 89 S.E.2d 99. One of the primary rules in the construction of a statute is that the words used therein should be taken in their ordinary and popular signification unless there is something in the statute requiring a different interpretation. This is really nothing more than a rule of common sense, for it must be supposed that the legislature, in enacting a statute, intended that the words used therein should be understood in the sense in which they are ordinarily and popularly understood by the people, for whose guidance and government the law was enacted, unless there is something in the statute showing the words in question were used in some other sense. Field v. Gregory et al. 230 S.C. 39, 94 S.E.2d 15.

It is to be noted that the statute provides for alimony in periodic payments or payment in a lump sum. The word 'or' used in a statute, is a disjunctive particle that marks an alternative. Ohio Fuel Supply Co. v. Paxton, D.C., 1 F.2d 662. The word 'or' used in a statute imports choice between two alternatives and as ordinarily used, means one or the other of two, but not both. Marshall Field & Co. v. Freed, 191 Ill.App. 619; White v. Atchison T. & S. F. Ry. Co., 125 Kan. 537, 265 P. 73, 59 A.L.R. 749; Swift & Co. v. Bonvillain, 139 La. 558, 71 So. 849.

In Huckabee Transport Corporation v. Western Assurance Co., 238 S.C. 565, 121 S.E.2d 105, this Court said:

'* * * The word 'or' as it is used in the insuring agreement, is a co-ordinating conjunction introducing an alternative, Bordelon v. National Life & Accident Ins. Co., La.App., 187 So. 112; Erie R. Co. v. American Auto. Ins. Co., 36 N.J.Super. 159, 114 A.2d 873. In Houge v. Ford, 44 Cal.2d 706, 285 P.2d 257, it was held that the function of the word 'or' in a contract is to mark an alternative such as 'either this or that."

In the case of In re Cow Castle Drainage Dist. (Berry et al. v. Ammons et al.), 107 S.C. 310, 92 S.E. 1036, we find the following:

'Turning, then, to the fourth exception, it is true that the word 'or' is sometimes construed by the Courts to mean 'and,' and the reverse of that. That construction has oftenest been made in the consideration of wills and written contracts, but well-nigh always in instances where the instrument construed was of doubtful meaning on the face of it, and generally to get at the intent of the maker of the instrument evidenced from all of the parts of it. The rule of construction in such instances is well stated by Johnston, Ch., in Shands v. Rogers, 28 S.C.Eq. (7 Rich.Eq.) 425. Statutes, too, are sometimes so construed, but not where the language of them is plain.

"It is not permitted to interpret what has no need of interpretation. When an act is expressed in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason not to adopt the sense which it naturally presents. To go elsewhere in search of conjectures in order to restrain or extinguish it is to elude it.' Potters-Dwarris, p. 143.'

'Or' generally indicates an alternative corresponding to 'either', as 'either this or that'; that is to say either one or another. Shepard v. City of New Oreans, 51 La.Ann. 847, 25 So. 542; Kuehner v. City of Freeport, 143 Ill. 92, 32 N.E. 372, 17 L.R.A. 774.

We think that it was the intention of the Legislature to authorize the courts to award alimony in periodic payments or in a lump sum, but not both.

In 27A C.J.S. Divorce § 235, at pages 1077-1078, we find the following:

'Under some statutes, the award may involve a combination of alimony in gross and periodic payments, and need not be confined to one mode or the other; but under other statutes it has been held that an award of permanent alimony in a gross sum precludes the allowance of periodic payments in addition thereto. Certainly, an award of installment alimony which is adequate precludes an additional award of alimony in gross for support. The allowance of periodical...