Cleveland v. Cleveland, 18174

• Decision Date: 02 March 1964
• Docket Number: No. 18174,18174
• Citation: 1 A.L.R.3d 203,135 S.E.2d 84,243 S.C. 586
• Parties: , 1 A.L.R.3d 203 Giles P. CLEVELAND, Respondent, v. Ginevra M. CLEVELAND, Appellant.
• Court: South Carolina Supreme Court

Page 84

135 S.E.2d 84

243 S.C. 586, 1 A.L.R.3d 203

Giles P. CLEVELAND, Respondent, v. Ginevra M. CLEVELAND, Appellant.

No. 18174.

Supreme Court of South Carolina.

March 2, 1964.

Sam R. Watt, T. E. Walsh, Spartanburg, for appellant.

J. Wright Nash, Thomas W. Whiteside, Spartanburg, for respondent.

MOSS, Justice.

Giles P. Cleveland, the respondent herein, and Ginevra M. Cleveland, the appellant herein, are husband and wife. They were married in February, 1946.

The respondent, on October 6, 1958, instituted this action for a divorce a vinculo matrimonii on the ground of desertion. Section 20-101(2) of the Code. The appellant denied the charge of desertion and, by way of cross complaint, asked for a decree of separate maintenance and support for herself and the three children of the marriage, and for reasonable fees for her counsel.

The case was referred to the Master for Spartanburg County for a hearing and, thereafter, he filed a report in which he concluded that the husband was entitled to a divorce on the ground of desertion and that the wife was not entitled to support. The Master recommended that the wife be given custody of the children and that the husband be required to pay a sum of $175.00 per month for the support of each of said children and to pay the wife's attorneys for their services the sum of $2,500.00. On exceptions to this report, the County Judge sustained the finding of the Master that the husband was entitled to a divorce and that the wife was not entitled to separate maintenance and support. He modified the report by increasing the amount allowed for the support of each child to $200.00 a month, by increasing the fee of the wife's attorneys to $3,000.00, and by further directing that the question of the time and circumstances under which the husband would be permitted to visit the children be left open in order to enable the parties to work out a satisfactory agreement, but if they were unable to do so that the visitation rights be subsequently fixed by the Court.

The wife appealed to this Court from the order of the County Judge. We reversed the holding of the County Judge upon the ground that the evidence in the husband's divorce action was insufficient to support finding of wife's desertion and that such had continued for a period of one year prior to the commencement of the action. We further held that the evidence conclusively showed that the parties separated by mutual consent and that such a separation does not constitute a desertion. We remanded the case to the Court below to determine the right of the appellant to separate maintenance and support and to determine anew the amount of support which should be allowed the children and the proper amount to be allowed the wife's attorneys for their services. Cleveland v. Cleveland, 238 S.C. 547, 121 S.E.2d 98.

After this case had been remanded to the lower Court for further proceedings, in accordance with the views expressed in our opinion, it was again referred to the Master for Spartanburg County for the purpose of determining all issues. Prior to a hearing before the Master, the respondent abandoned his action for a divorce. This left for determination the right of the wife to separate maintenance and support and the amount thereof, the amount to be paid for the support of the children, and the fees to be allowed the wife's attorneys. The Master duly convened a hearing and after the taking of the testimony, filed his report on February 15, 1963, in which he recommended that the husband pay to the wife the sum of $200.00 per month for her separate support and maintenance; that he pay the sum of $200.00 per month for the support and maintenance of each of his children; and that he pay to the wife's attorneys an additional fee of $1,000.00 for their services. On exceptions by both parties to the report, the County Judge sustained the finding of the Master that the wife was entitled to separate maintenance and support. However, he modified the report by decreasing the amount allowed for the support of the wife to $150.00 per month and for the support of each child to $150.00 per month. He also increased the fee allowed the wife's attorneys to $1,500.00. From the aforesaid order, the wife served timely notice of appeal to this Court. The husband did not appeal.

The first question for determination is whether or not the County Judge erroneously reduced the amount fixed by the Master as reasonable support for the three children of the parties to this action. The wife contends that the husband took no exception to the recommendation of the Master as to the amount that should be awarded for the support of the three children of the marriage.

We have carefully reviewed the exceptions filed by the husband to the recommendations contained in the report of the Master. We find there is no exception which challenges the recommendation of the Master as to the amount that should be awarded for the support of the children. Since the husband did not file an exception to the report of the Master, it was not proper for the County Judge to consider a question which was not...