Brown v. Brown, No. 18148
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | BUSSEY; TAYLOR |
| Citation | 134 S.E.2d 222,243 S.C. 383 |
| Parties | Tulley A. BROWN, Respondent, v. Hazel M. BROWN, Appellant. |
| Decision Date | 31 December 1963 |
| Docket Number | No. 18148 |
Page 222
v.
Hazel M. BROWN, Appellant.
[243 S.C. 384] Jack H. Page, Conway, for appellant.
Long & Long, Conway, for respondent.
BUSSEY, Justice:
In this action, commenced May 29, 1961, the respondent husband sought and was
Page 223
granted a divorce on the ground of desertion, it being alleged that the appellant wife deserted him contained a general denial of the wife contained a general denial and alleged by way of defense the breach of a premarital agreement by the husband as the cause of separation; an attempted reconciliation with the husband and recrimination as a bar and defense; and additionally, by way of counterclaim, she alleged that she had attempted a reconciliation with the husband and that he refused to take her back. In her prayer for relief she asked for reasonable support [243 S.C. 385] and maintenance and the payment of attorneys' fees for services rendered in connection with the defense of the action.It is undisputed that the wife, as a result of discord between the parties, left the marital home on May 20, 1960, following which she brought an action against the husband for separate support and maintenance. The trial court denied her relief and this court, on appeal, affirmed for the reasons set forth in the opinion. Brown v. Brown, 239 S.C. 444, 123 S.E.2d 772.
The instant appeal imputes error to the trial court in awarding the husband a divorce and denying the wife's prayer for attorneys' fees. In considering whether there was error in granting the divorce, we find it only necessary to consider the exceptions addressed to the alleged insufficiency of evidence.
This court has repeatedly held that '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; (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 629.
The husband here not only failed to prove the existence of the third above enumerated essential element of desertion, 'the absence of the opposite party's consent', but his own testimony affirmatively refuted the existence of such element.
It is undisputed that the wife on several occasions, by letter and telephone, attempted to effect a reconciliation, and we quote in part from the husband's testimony thereabout.
'Q. She asked you to meet her?
'A. To come to the warehouse and talk to her.
'Q. She...
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Miller v. Miller, No. 22047
...125 S.E.2d 408 (1962). Failure on the part of the trial judge to comply with § 20-3-90 of the Code is ground for reversal. Brown v. Brown, 243 S.C. 383, 134 S.E.2d 222 (1963). The record discloses no attempt by the judge to reconcile the parties; therefore, we reverse the decree granting re......
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Shell v. Brown, No. 18147
...stated that the court may at once see the point which it is called upon to decide without having to 'grope in the dark' to ascertain the [243 S.C. 383] precise point at issue. Rules of Supreme Court, Rule 4, Sec. 6; Gordon v. Rothberg, 213 S.C. 492, 50 S.E.2d 202; Pate v. C. I. T. Corporati......
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Shufelt v. Shufelt, Appellate Case No. 2015-002426
...reconciliation effort and certification of that effort in the decree. 280 S.C. 314, 316, 313 S.E.2d 288, 290 (1984); Brown v. Brown, 243 S.C. 383, 387, 134 S.E.2d 222, 224 (1963). Because this case is already being reversed and remanded for reconsideration of several other issues, we declin......
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Shufelt v. Shufelt, 2018-UP-260
...reconciliation effort and certification of that effort in the decree. 280 S.C. 314, 316, 313 S.E.2d 288, 290 (1984); Brown v. Brown, 243 S.C. 383, 387, 134 S.E.2d 222, 224 (1963). Because this case is already being reversed and remanded for reconsideration of several other issues, we declin......
-
Miller v. Miller, No. 22047
...125 S.E.2d 408 (1962). Failure on the part of the trial judge to comply with § 20-3-90 of the Code is ground for reversal. Brown v. Brown, 243 S.C. 383, 134 S.E.2d 222 (1963). The record discloses no attempt by the judge to reconcile the parties; therefore, we reverse the decree granting re......
-
Shell v. Brown, No. 18147
...stated that the court may at once see the point which it is called upon to decide without having to 'grope in the dark' to ascertain the [243 S.C. 383] precise point at issue. Rules of Supreme Court, Rule 4, Sec. 6; Gordon v. Rothberg, 213 S.C. 492, 50 S.E.2d 202; Pate v. C. I. T. Corporati......
-
Shufelt v. Shufelt, Appellate Case No. 2015-002426
...reconciliation effort and certification of that effort in the decree. 280 S.C. 314, 316, 313 S.E.2d 288, 290 (1984); Brown v. Brown, 243 S.C. 383, 387, 134 S.E.2d 222, 224 (1963). Because this case is already being reversed and remanded for reconsideration of several other issues, we declin......
-
Shufelt v. Shufelt, 2018-UP-260
...reconciliation effort and certification of that effort in the decree. 280 S.C. 314, 316, 313 S.E.2d 288, 290 (1984); Brown v. Brown, 243 S.C. 383, 387, 134 S.E.2d 222, 224 (1963). Because this case is already being reversed and remanded for reconsideration of several other issues, we declin......