Davenport v. Davenport, 20119

• Decision Date: 01 December 1975
• Docket Number: No. 20119,20119
• Citation: 220 S.E.2d 228,265 S.C. 524
• Court: South Carolina Supreme Court
• Parties: George W. DAVENPORT, Appellant, v. Jean Hogg DAVENPORT, Respondent.

Page 228

220 S.E.2d 228

265 S.C. 524

George W. DAVENPORT, Appellant, v. Jean Hogg DAVENPORT, Respondent.

No. 20119.

Supreme Court of South Carolina.

Dec. 1, 1975.

J. D. Todd, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Harry A. Chapman, Jr., of Horton, Drawdy, Marchbanks, Ashmore, Chapman & Brown, Greenville, for respondent.

RHODES, Justice:

This appeal involves a dispute between the father and the mother over custody of two children, three and five years of age. ¹ The Circuit Court reversed the finding of the master ² and awarded custody to the mother from which order the father has appealed. We affirm.

This action was instituted by the plaintiff-appellant, George W. Davenport, for the purpose of obtaining a divorce on the ground of adultery from the defendant-respondent, Jean Hogg Davenport, and gaining custody of their children. Both the Circuit Court and master concluded that the husband was entitled to a divorce on the ground of adultery from which finding there has been no appeal. Thus, the sole issue for determination is whether custody should have been granted to the mother, and our review of the record will be confined to evidence relevant to such issue.

There being no concurrent findings by the master and Circuit Court in this equity case, it becomes the duty of this Court to independently determine the issues of fact according to our view of the weight of the evidence. Adams v. Adams, 262 S.C. 85, 202 S.E.2d 639 (1974).

The parties were married in 1967, and lived together as husband and wife until January 18, 1974. Upon their separation, they entered into a written agreement, initiated by the husband, which provided that the mother was to have custody of their children with liberal visitation privileges granted the father. The cleavage in the marriage began to appear shortly after the birth of the youngest child at which time the parties were residing in the husband's family home in Greer. The husband was busily engaged in managing a relatively large family automobile dealership of which he was a principal stockholder. The wife felt that she was being neglected by the husband and the marriage progressively deteriorated, aggravated by sexual incompatibility and mutual suspicion and distrust. When asked by the wife if he had been unfaithful to her, he replied that he could not say that he had or had not. The husband testified that at the time he made this response he had not been unfaithful to his wife, and merely made the statement to make his wife jealous. The wife testified that she felt she had lost her husband and that he no longer wanted her. After this incident, the wife had an illicit affair with another man in August 1973, of which the husband later became aware. Upon the separation of the parties on January 18, 1974, the above-referenced agreement was entered into and the wife moved from Greer to Spartanburg with the children. With substantial financial assistance from the husband, she purchased a condominium in which she and the children have since resided, she being employed as a school teacher. At the time of the master's hearing the wife was 29 years of age and the husband 31.

In May of 1974 the husband employed private detectives to systematically observe the condominium in which the wife and children resided, and evidence was obtained that an adult male had spent the entirety of five (5) nights at the dwelling. The wife did not dispute the evidence nor does she deny an adulterous relationship with this man.

In determining the issue of child custody the paramount consideration is the welfare of the child. In cases, as here, where the parties have previously agreed as to whom should have custody, the party seeking to set aside the agreement has the burden of proving that the welfare of the children requires the agreement to be abrogated. Ford v. Ford, 242 S.C. 344, 130 S.E.2d 916 (1963). While numerous prior decisions set forth criteria that are...