Calcutt v. Calcutt, 0244

Citation282 S.C. 565,320 S.E.2d 55
Decision Date18 June 1984
Docket NumberNo. 0244,0244
CourtCourt of Appeals of South Carolina
PartiesWilliam B. CALCUTT, Appellant, v. Carol Evonne CALCUTT, Respondent. . Heard

Allen C. Pate, Florence, for appellant.

Thomas E. Smith, Jr., Pamplico, for respondent.

SHAW, Judge:

This is an appeal from a family court order awarding respondent-Carol Calcutt a divorce on the ground of adultery, $300 per month alimony, $250 per month child support, and $800 attorney's fees. She also received custody of the parties' only child. Appellant-William Calcutt was granted reasonable visitation after a six month period. The trial judge also enjoined Mr. Calcutt from contacting or harassing Mrs. Calcutt, her immediate family, and their daughter in any manner except in connection with the exercise of his visitation rights. With the exception of the issue of child custody, Mr. Calcutt appeals all aspects of the trial judge's order. (The exception with respect to equitable distribution was abandoned.) We affirm.

The parties were married on February 15, 1964, and their only child, Tanya Lynn, was born on May 29, 1974. Mrs. Calcutt initiated the divorce action in June of 1981 on the grounds of habitual drunkenness and adultery.

The deterioration of the marital relationship began when Mr. Calcutt absented himself from the parties' home for days at a time. He explained his absence by telling Mrs. Calcutt he was assisting narcotic agents in drug enforcement activities and his life was in danger. Mrs. Calcutt initially believed her husband but later came to believe he was seeing another woman. She attributed his change in behavior to drug use.

According to Mrs. Calcutt, Mr. Calcutt deserted the marital home on their daughter's seventh birthday without explanation. Five days later, Mrs. Calcutt was able to trace his whereabouts to the home of Lois Hines. Mrs. Calcutt confronted her husband outside of Ms. Hines' house where Mr. Calcutt informed her he was never coming back home because he didn't love her anymore.

Following the separation, Mrs. Calcutt testified to observing the Hines home and seeing her husband's truck parked in the driveway during all hours of the day and night. Mrs. Calcutt's sister, Barbara Poston, testified she also saw his truck parked at the Hines home at various hours of the day and night. Mr. Calcutt admitted living with Ms. Hines, who lives with her mother, her two brothers, and her daughter, but denied having sexual relations with her. He stated he was living with her because he had been friends with the Hines family all his life and because Ms. Hines' mother washed his clothes for $25 per week. Mrs. Dorothy Hines, Lois' mother, testified she and Mr. Calcutt's mother were close friends and Mr. Calcutt was staying with her because he couldn't bear living in his mother's house in which she had recently committed suicide.

The record reveals Mrs. Calcutt's testimony as to how she found out her husband was seeing another woman and where he was living was hearsay. The trial judge elicited further hearsay from Mrs. Calcutt concerning a telephone conversation she had with Ms. Hines. In this phone conversation, Ms. Hines allegedly told Mrs. Calcutt she and Mr. Calcutt had been seeing each other for two months prior to the parties' separation and she and Mr. Calcutt were in love. There was no objection by Mr. Calcutt's attorney to any of this hearsay testimony.

At the conclusion of Barbara Poston's testimony, Mrs. Calcutt's last witness, counsel for Mrs. Calcutt requested the injunction and general restraining order against Mr. Calcutt even though it had not been requested in the complaint. However, Mr. Calcutt had no objection to the issuance of the order.

On appeal from an order of the family court, the Court of Appeals has jurisdiction to find facts in accordance with its view of the preponderance of the evidence. However, this broad scope of review does not require us to disregard the findings of the trial judge nor does it relieve the appellant of the burden of convincing us that the trial judge erred. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981). The trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility. Albert v. Blackwell, 280 S.C. 128, 311 S.E.2d 101 (S.C.App.1984).

Mr. Calcutt initially argues there was insufficient evidence to support a finding of adultery. He complains much of the evidence as to his alleged adulterous behavior was based on hearsay testimony, the hearsay testimony should be excluded, and, once excluded, there is no competent evidence to prove adultery. While he concedes there was no objection made at trial, he argues it is improper for the trial judge to elicit hearsay testimony whether or not an objection is made and he did attempt to have this testimony deleted from the Transcript of Record.

The failure to make a timely and proper objection to the introduction of testimony waives the right to object to such testimony on appeal. Edwards v. Grand Lodge K.P. of South Carolina, 166 S.C. 445, 165 S.E. 181 (1932); Parks v. Morris Homes Corporation, 245 S.C. 461, 141 S.E.2d 129 (1965). An objection raised at the settling of the Transcript of Record is decidedly untimely.

Counsel for Mr. Calcutt on appeal, who did not represent him at the trial, argues trial counsel was hesitant to ask the judge to rule on the admissibility of testimony elicited by the judge. This argument is without merit. In a trial by court without a jury, the trial judge is entitled to ask questions on his own. Rives v. Pettit, 513 S.W.2d 475 (Ky.1974). However, he must not presume the role of an adversary. The fact counsel may have some hesitancy in making an objection during the trial to the conduct of the court, which is considered prejudicial, does not excuse the failure to do so. Parks v. Morris Homes, supra; Lipscomb v. Poole, 247 S.C. 425, 147 S.E.2d 692 (1966). By failing to object to the introduction of this testimony, the right to do so on appeal was waived. Edwards v. Grand Lodge, supra.

Based on the evidence in the record, we feel the trial judge was correct in granting Mrs. Calcutt a divorce on the ground of adultery. Adultery must be established by a clear preponderance of the evidence, but that evidence need not be direct; it may be established by indirect or circumstantial evidence. Gainey v. Gainey, 277 S.C. 519, 290 S.E.2d 242 (1982); Odom v. Odom, 248 S.C. 144, 149 S.E.2d 353 (1966). Eyewitness evidence is not required. Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330 (1949). As a general rule, the proof must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed. Insufficiency in this respect, however, should not be allowed to defeat a divorce where the court is fully convinced adultery has, in fact, been committed and the defendant had full opportunity to defend or refute the charge. DuBose v. DuBose, 259 S.C. 418, 192 S.E.2d 329 (1972).

The trial judge found that Mr. Calcutt committed adultery. This finding is not against the clear preponderance of the evidence. Mr. Calcutt's explanation to his wife for his lengthy absences from the marital home is inherently unbelievable. The more credible explanation is during this period he was engaging in acts of adultery and fabricated the narcotics story in a feeble attempt to account for his absences. An extra marital affair would also account for his change in behavior. There is no evidence in the record, other than Mrs. Calcutt's opinion, of his using drugs. Mr. Calcutt had the opportunity to refute this explanation Mrs. Calcutt claims was offered to her. Yet he did not. His sole defense consisted of a naked denial he had engaged in sexual relations with Ms. Hines.

Mr. Calcutt admitted to living in the same house with his alleged paramour. This is sufficient proof of the time and place of the offense, which appears to be a continuing one. DuBose v. DuBose, supra. Although Ms. Hines' mother, brothers, and daughter also live there, nonetheless, this close proximity provided ample opportunity and constituted a continuing and close social relationship which strongly corroborates the other evidence of adultery (Ms. Hines telling Mrs. Calcutt she and Mr. Calcutt were in love). Wingate v. Wingate, 272 S.C. 489, 252 S.E.2d 916...

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