Cheatham v. Cheatham, 18335

• Decision Date: 19 April 1965
• Docket Number: No. 18335,18335
• Citation: 141 S.E.2d 813,245 S.C. 579
• Parties: Anna Hart CHEATHAM, Respondent, v. Miles Whitfield CHEATHAM, Jr., Appellant.
• Court: South Carolina Supreme Court

Page 813

141 S.E.2d 813

245 S.C. 579

Anna Hart CHEATHAM, Respondent, v. Miles Whitfield CHEATHAM, Jr., Appellant.

No. 18335.

Supreme Court of South Carolina.

April 19, 1965.

Frank L. Taylor, Kermit S. King, Columbia, for appellant.

Harvey L. Golden, Columbia, for respondent.

BRAILSFORD, Justice.

This interspousal action for separate support and maintenance and for child custody was brought by the wife in the County Court for Richland County and was referred to the master for said county. The court, adopting the report of the master except as hereafter noted, adjudged that the parties 'are entitled to a legal separation a mensa et thoro'; and that the husband should have custody of the children, two boys, now eleven and fifteen years of age. It was also adjudged that the husband should pay to the wife $60.00 per week for her support and $350.00 as compensation for her attorneys. This appeal by the husband challenges only the amounts awarded by the court for support and attorney's fees, which exceed the amounts recommended by the master for these purposes, i. e., $160.00 per month for support and $150.00 for attorney's fees.

This limitation of the scope of the appeal is consistent with the answer, by which the husband, in effect, joined in his wife's plea for a legal separation--charging, however, that it was her misconduct which made further cohabitation impossible--and signified his willingness, in that event, 'to provide reasonable support' for her. Inferentially because of this tenor of the pleading, the master made no findings on the sharply contested and otherwise critical issue of whose fault brought about the estrangement. Instead, after summarizing the charges made by each spouse against the other, he reported that they were irreconcilable, and, therefore, 'entitled to a legal separation a mensa et thoro.' Neither the husband nor wife excepted to the failure of the master to make such findings, or to his conclusion that the husband should be required to provide for the support and maintenance of the wife. The only presently pertinent issue which was presented to the court by exceptions to the report was the wife's challenge to the adequacy of the recommended awards. In all other respects the report, which fastened upon the husband liability for the support and maintenance of the wife, became the law of the case.

The husband's exceptions on this appeal all charge that the court erred in failing to adopt the recommendations of the master as to the amounts to be awarded for alimony or for suit money and in ordering the husband to pay larger sums for these purposes than those recommended. Likewise, appellant's brief states the questions involved on the appeal to be whether the court erred in failing to adopt the master's recommendations as to the amounts to be awarded as alimony and as attorney's fee.

The master made no finding of fact bearing upon the amounts which reasonably should be awarded for these purposes. In fact, he made no reference to the testimony relating to the husband's ability to pay, the standard of living to which the parties were accustomed or the wife's lack of resources or income. He simply made the recommendation, unsupported by any finding from or discussion of the evidence, that alimony be fixed at $160.00 per month and that $150.00 be paid to the wife's attorney for his services 'until the final adjudication of the within action.'

There is no fixed standard by which the amounts to be allowed an estranged wife for her support and maintenance and for suit money may be measured. When the wife is entitled to such allowances, the amounts, of necessity, must be left to the sound discretion of the chancellor, and, as in the case of judgments resting upon the exercise of discretion generally, a considerable latitude will be allowed on appeal. Sadler v. Sadler, 115 S.C. 217, 105 S.E. 285; Murdock v. Murdock, 243 S.C. 218, 133 S.E.2d 323; 27A C.J.S. Divorce § 232; 42 C.J.S. Husband and Wife § 624. 'The question of the amount, if permanent alimony is allowed, under the facts as disclosed by the evidence, is for the determination of the trial judge in the exercise of a wise and just judgment.' Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29, 32. 'In determining on review whether the trial court abused its discretion in making an order as to alimony, counsel fees, and expenses, the question is not what the appellate court would have done had the question been presented to it in the first instance, since a reviewing court ordinarily will not substitute its judgment for that of the trial court, and a reviewing court will not disturb an order of the trial court as to alimony where the order does not appear to be unreasonable or prejudicial in the light of the evidence shown by the record.' 27B C.J.S. Divorce § 288(3).

In an equity case, the court is the judge of both the facts and the law and reference of a cause to a master is for the chancellor's assistance and enlightenment. Findings and recommendations of a master or referee do not relieve the chancellor of his responsibility to decide from the entire record, by his own judgment, any issues presented to him by exceptions to the report. See Baylor v. Bath, 189 S.C. 269, 1 S.E.2d 139, which reaffirmed this principle after some confusion thereabout had resulted from the opinion in Mitchum v. Mitchum, 183 S.C. 75, 190 S.E. 104.

As stated in Thorpe v. Thorpe, 12 S.C. 154, '(T)he judge, in the exercise of his chancery powers, is obliged to determine by his judgment or decree all questions of fact...