Fort v. Fort, 20615

• Decision Date: 21 February 1978
• Docket Number: No. 20615,20615
• Citation: 270 S.C. 255,241 S.E.2d 891
• Court: South Carolina Supreme Court
• Parties: Mary L. FORT, Appellant, v. James A. FORT, Respondent.

Page 891

241 S.E.2d 891

270 S.C. 255

Mary L. FORT, Appellant, v. James A. FORT, Respondent.

No. 20615.

Supreme Court of South Carolina.

Feb. 21, 1978.

Donald D. Aaron, Columbia, for appellant.

King & Furr, Columbia, for respondent.

LITTLEJOHN, Justice.

This action was brought by the plaintiff-appellant (wife) against the defendant-respondent (husband), seeking a divorce a vinculo matrimonii on the ground of desertion and adultery, or in the alternative a legal separation on the same grounds. She also sought alimony and "a reasonable property settlement." The answer of the husband amounted to a general denial and a counterclaim for a divorce a vinculo matrimonii on the grounds of adultery and desertion. The case was heard by the master in equity, who recommended that the circuit court deny relief to either party, except that the wife be permitted to live at the home place in which she owned a one-half interest, and that the husband be ordered to pay her attorney's fees and costs.

The wife did not except to the master's report. The husband did except, raising two issues: first, he submitted that the master erred in failing to recommend that he be granted a divorce on the grounds of desertion and, secondly, that the master erred in ordering him to pay the wife's attorney's fees and costs. The circuit judge sustained the first exception and overruled the second, and otherwise confirmed the master's report. The wife has appealed.

The wife and husband were married in 1944. At that time he was a medical doctor, serving his internship, and she was a nurse at a Columbia hospital. To this marriage was born four sons, the youngest of whom is twenty-four years of age. Over the years, the husband has practiced medicine in Columbia, and the wife has worked without compensation in his office, according to her testimony, for approximately 15 years. According to the husband's testimony, the time is substantially less. The master found that she had worked at least two years.

In August of 1969, the wife left the household in Columbia. A reconciliation was had in July, 1970, and she returned to the home. Marital difficulties have existed for some time, growing, inter alia, according to the master, out of money and financing, "the (husband) probably valuing it too much and the (wife) not enough." Over the years, the husband has acquired substantial real estate holdings, valued between $400,000.00 and $500,000.00. He owns a one-half interest in the home place, and the wife owns the other one-half. Several years ago, he bought a parcel of real estate and placed it in his wife's name. She has sold this property for approximately $92,000.00 and is being paid for it over a period of years. She now works and earns approximately $10,000 a year; in addition, she has income from a taxicab business which she owns. In 1969, when the separation occurred, she took $10,000.00 out of a savings account. The husband earns a net income of approximately $40,000.00 per year. These properties have been accumulated over the years, and their ownership and a claim for alimony are two major grounds for the appeal now before us.

In June of 1975, the wife, while continuing to live under the same roof with the husband, commenced this action for divorce. In early July, the husband went to North Carolina to attend a checker tournament and, upon his return, found that the wife had changed the locks on the doors of their home such that he could not gain entrance. In addition, she had packed all of his clothing and personal effects into plastic garbage bags and taken them to a motel.

The wife submits that the circuit judge erred in finding that the husband was entitled to a divorce on the grounds of desertion. She argues that he erred in finding contrary to the recommendation of the master. The recommendation of the master is, of course, nothing more nor less than a recommendation. The circuit judge was at liberty to accept the recommendation or reject the same, or accept a portion of the recommendation and reject the remainder. He should, of course, give weight to the recommendation. When the master in equity and the trial judge take different views of the evidence, this Court will make its own determination. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). We therefore approach the issues and will dispose of them in keeping with our own view of the preponderance of the evidence.

We are of the opinion that the holding of the circuit judge that the wife deserted the husband is substantiated by the evidence. In many cases, this Court has recited the elements of desertion in a divorce case:

"Our decisions uniformly hold that, in order to establish desertion as a ground for divorce, the following must be shown: (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 opposing party's consent; and (4) absence of justification." Bennefield v....