Brown v. Brown, 18693

• Decision Date: 22 August 1967
• Docket Number: No. 18693,18693
• Parties: James Marion BROWN, Respondent, v. Gladys B. BROWN, Appellant.
• Court: South Carolina Supreme Court

Page 641

156 S.E.2d 641

250 S.C. 114

James Marion BROWN, Respondent, v. Gladys B. BROWN, Appellant.

No. 18693.

Supreme Court of South Carolina.

Aug. 22, 1967.

E. L. McGowan, Columbia, for appellant.

Edens, Woodward & Butler, Columbia, for respondent.

GEORGE T. GREGORY, Jr., Acting Justice:

James Marion Brown, the respondent herein, instituted this action against his wife, Gladys B. Brown, appellant herein, for a divorce, a vinculo matrimonii, on the ground of physical cruelty. Section 20--101(3) of the 1962 Code. The appellant denied the acts of physical cruelty and by way of cross-complaint (counterclaim) sought a divorce, a mensa et thoro, and support from the respondent on the ground of physical cruelty. The respondent denied that he was guilty of physical cruelty.

The matter was referred by the Richland County Court to the Master in Equity for Richland County, who, in his report of August 6, 1965, concluded that the evidence was not sufficient to grant the respondent a divorce, a vinculo matrimonii, on the ground of physical cruelty or the appellant a divorce, a mensa et thoro, on the ground of physical cruelty. He found that the testimony of the parties as to the various acts of physical cruelty complained of was inconsistent and that there was no corroborating testimony presented by either party to substantiate them other than the testimony of a policeman as to certain scratches on the face of the respondent. The master further concluded that the respondent be required to pay Twenty Five and No/100 ($25.00) Dollars per week to the appellant towards her support, continue to make mortgage and utility payments on the dwelling occupied by the appellant, permit appellant the use of an Opel automobile then in her possession, and pay additional attorney's fees to appellant's counsel.

The appellant served Exceptions to the report of the Master in Equity on the grounds that the Master in Equity erred in denying the appellant's prayer for relief, including a divorce, a mensa et thoro, erred in awarding the nominal sum of Twenty Five and No/100 ($25.00) Dollars per week for her support and maintenance; erred in failing to make any provision as to the reponsibility of the respondent for maintenance, insurance, and taxes on the dwelling and on the Opel automobile; and erred in failing to make any provision as to the disposition of the furniture in the dwelling.

The respondent served Exceptions to the report of the Master in Equity on the grounds that the Master in Equity erred in concluding that corroboration of testimony was necessary where no suggestion of collusion is present; erred in failing to find that the evidence submitted was sufficient to substantiate respondent's charges of physical cruelty as a ground; erred in finding that the respondent should continue paying Twenty Five and No/100 ($25.00) Dollars per week as support and maintenance; erred in finding that appellant retain possession and use of the Opel automobile; and erred in awarding an additional attorney's fee for appellant's counsel.

The decree of the Senior Judge, Richland County Court, dated July 13, 1966, granted to the respondent a divorce, a vinculo matrimonii, from the appellant and in lieu of alimony or support in any other form, and in full, final, and complete satisfaction of the appellant's right to alimony, the respondent was directed to convey to the appellant all of respondent's right, title, and interest in and to the dwelling house occupied by the appellant and also the Opel automobile and to pay the costs and expenses of the action including the sum of Five Hundred and No/100 ($500.00) Dollars to appellant's attorneys.

The wife has appealed from the foregoing judgment. The Exceptions challenge (1) the sufficiency of the evidence to support the findings of the lower court as to physical cruelty, and (2) the sufficiency of the evidence to support the granting as alimony to the appellant all the respondent's right, title, and interest in and to the dwelling house in the absence of testimony or evidence as to the principal indebtedness outstanding or physical condition of the premises.

A consideration of the Exceptions which challenge the factual findings of the lower court that the husband established the charges of physical cruelty will dispose of this case. Since this is an equity case, it is necessary that we review the evidence to determine whether or not such findings are supported by the preponderance of the evidence. It is now well settled that this court has jurisdiction in appeals in equity cases to find the facts in accord with our view of the preponderance of the evidence, in the absence of a verdict by the jury; and may reverse a factual finding by the lower court in such cases when the appellant satisfies this court that the finding is against the preponderance of the evidence. Crowder v. Crowder, 246 S.C. 299, 143 S.E.2d 580.

The parties were married January 17, 1956, in Columbus, Georgia. The husband was then in the military service. Although no children were born of this marriage, the wife does have one child by a prior marriage. This child has reached his majority and no longer resides with his mother. The parties have lived in Columbia, South Carolina, since December 1963. The husband retired from the Army on November 30, 1964, with the rank of Major with a retirement income of Three Hundred Ninety Eight and 16/100 ($398.16) Dollars gross, Three Hundred Fifty Eight and 16/100 ($358.16) Dollars net. Shortly after his retirement from the Army the husband began working as a real estate agent and had been in this occupation for almost six months when he instituted this action for divorce. The parties lived together in a home purchased by the husband until March 7, 1965, when he left and rented an apartment. The husband claims that acts of physical cruelty inflicted upon him by his wife prompted and caused his departure. This is denied by the wife.

The record reveals marital difficulties and discord between the parties. In 1960 the wife instituted an action for divorce on the ground of physical cruelty but the parties reconciled and reestablished their marriage relationship.

According to both, pastoral counseling was futile. The husband testified that sessions with the pastor were not successful because his wife refused to comply with the suggestions offered. He stated that the pastor referred to the marriage as utterly hopeless. The wife's version differed. She contended that the husband was not cooperative. Neither party chose to call the pastor to testify and corroborate the claim of each of a hopeless marriage caused by the failure of the other to cooperate with the pastor, or to explain why he was not called.

The particular acts of physical cruelty alleged by the husband against the wife occurred on March 5 and 6, 1965. On March 5, 1965, he was allegedly attacked by the wife and subjected to physical abuse while attempting to make a telephone call. He testified that when he arrived home he noticed a bedroom rug was missing and she told him that she had sent the rug out for cutting to fit another room. An argument ensued over the rug. The husband then went to make a telephone call and the wife went into the kitchen. According to the husband, the wife came into the hallway and took the telephone receiver from him and 'imposed her body upon him restricting his freedom of movement'. She refused to leave him alone and climaxed the attack by scratching him across the face. The wife testified that she was only attempting to go to the bedroom to pick up her purse and car keys; however, he was blocking the hallway that...