Frazier v. Frazier

• Decision Date: 15 September 1955
• Docket Number: No. 17066,17066
• Citation: 228 S.C. 149,89 S.E.2d 225
• Court: South Carolina Supreme Court
• Parties: Noah FRAZIER, Respondent-Appellant, v. Mary Herring FRAZIER, Appellant-Respondent.

Page 225

89 S.E.2d 225

228 S.C. 149

Noah FRAZIER, Respondent-Appellant, v. Mary Herring FRAZIER, Appellant-Respondent.

No. 17066.

Supreme Court of South Carolina.

Sept. 15, 1955.

James F. Covington, Jr., Bennettsville, for respondent-appellant.

Goldberg & Cottingham, Bennettsville, for appellant-respondent.

BAKER, Chief Justice.

There are two distinct and separate appeals in this case, which may be denominated as the main appeal and the subsidiary appeal. These appeals have been so dealt with by counsel, separate briefs having been filed; and while the main appeal was orally argued in addition to the printed briefs filed, the subsidiary appeal was submitted on the printed briefs. We will so deal with them herein.

In that in the main appeal the defendant is the appellant, and in the subsidiary or secondary appeal the plaintiff is the appellant, we will hereinafter refer to the parties to this action as plaintiff and defendant.

The main appeal is from an order issued out of the County Court of Marlboro County granting to plaintiff a divorce a vinculo matrimonii from the defendant.

Other than the issue raised as to the admission of the testimony of the witness Prentiss A. Frazier, all exceptions are directed to the findings of fact by the trial Judge that defendant had deserted plaintiff; that the desertion had continued for a period of one year prior to the commencement of the action, and that a reconciliation between them could not be effected.

It is the contention of plaintiff that he and the defendant last lived together as husband and wife in January, 1953, at Denthill Farms, Va., where he had provided a home for her, and then for only two days, when she deserted him and returned to the home of her mother in Bennettsville, S. C. On the other hand, it is the contention of defendant that she and plaintiff thereafter lived together as wife and husband at the home of her mother, in March, 1953, and in the latter part of September, or the first part of October, 1953, the latter date being the only one pleaded in her answer, and that it has never been her intention to desert him. The significance of the date of the commencement of this action, March 3, 1954, in the light of the governing statute, Section 20-101(2), Code, 1952, is therefore quite obvious.

The plaintiff and defendant were married May 19, 1945. Very little of the intervening time between that date and January, 1953, have this couple lived together as husband and wife under the same roof, including weekend visits and other visits of plaintiff to defendant at her mother's home in Bennettsville, S. C., to where she invariably returned after living with him for very short periods of time at places where he was stationed and had provided a home for her. The longest period of time they ever lived together continuously in a home provided by plaintiff was in or near Charleston, S. C., during the first year of their marriage, if that was when he was employed at the Navy Yard there located. At all other times the defendant has lived with her mother at the latter's home, Bennettsville, S. C., some of which time, for instance, about two years between 1948 and 1953 while the plaintiff was overseas in the Philippine Islands, was with his permission. We gather from the record before us that the plaintiff has been in the U. S. Army from 1948 until the present time, and that the defendant has drawn an allotment the entire time ranging from $50 per month in the beginning to $137 per month after a child was born of this union and plaintiff had been promoted to sergeant. Pending this appeal, defendant is still drawing $87 per month in addition to the $50 per month which it was decreed should be paid by plaintiff for the support of their child. It should be stated here that plaintiff has never contested the payment for the support of his child, but to the contrary has always recognized his obligation thereabout. It is in dispute whether at other times when plaintiff was not overseas, he arranged for a home where defendant could have lived with him, and she refused to do so, and when she did, after remaining with him for a few days, she would leave and return to the home of her mother. Following each such occasion there was a reconciliation until defendant returned to the home of her mother in January, 1953, after staying with plaintiff for two days at Denthill Farms, Virginia, where he was stationed, and had provided a home for her and there she has continuously remained and resided.

If the foregoing limited sketch of the testimony leading up to the alleged desertion of plaintiff by the defendant in January, 1953, contains any misleading or incorrect statement of fact, it is due to the manner and indefiniteness of the testimony as presented or adduced upon the trial of the case in the court below before the County Judge. Mainly for the purpose of furnishing some idea of the situation when the desertion is alleged to have occurred in January, 1953, have we sketched the testimony as to this couple's married life prior to the last mentioned date.

As hereinbefore indicated, the real issue now before this Court is whether the testimony was sufficient to support the holding of the trial Judge that the defendant deserted the plaintiff at Denthill Farms, Virginia, in January, 1953, with the intent then or thereafter formulated in her mind to desert him, and that there has been no cohabitation between them as husband and wife since said last mentioned date.

Plaintiff testified that being stationed at Denthill Farms Station, Virginia (Warrenton, Virginia), he acquired living quarters for defendant and their child, and she joined him there in January, 1953, for two days, and then returned to her mother's home; that she gave no reason why she was leaving--'she just went downstairs in the living room and started crying and she continued to cry and announced that she was catching the next bus back to Bennettsville'; that 'rather than see her get out in the snow and ride the bus home--I tried to talk her into not leaving--to stay until it slacked up--when she absolutely refused, I went to the post, obtained a leave and took her in the car and drove her back down here'; that he had to return immediately as his leave was up; that the next time he returned to Bennettsville was in March, 1953, when he was on his way to California; that he was there for approximately a week, did not stay with defendant--not even for a night, because she refused to let him, but stayed at his mother's home; that while he had a thirteen days' leave, he took only seven or eight; that it was in October, 1953, that he next was in Bennettsville when he returned from California, and at that time he remained in Bennettsville approximately twenty-five days, and stayed at his mother's home.

We now quote from plaintiff's testimony on cross-examination by defendant's attorney:

'Q. At no time you stayed at your mother-in-law's house? A. The first night after I returned from California I slept in my car in my mother-in-law's yard.

'Q. Where did you sleep the second night, Sergeant? A. At my mother's.

'Q. At no time during that leave did you stay at your mother-in-law's with your wife in October 1953? A. No.

'Q. You stayed a week, your testimony is that you didn't stay with her at all, is that the truth? A. No, I did not, because the first night I returned home at approximately ten o'clock I went in to see her and the child with intention of staying there. I felt faint because I had been driving so long without any sleep so I went outside to get fresh air and I walked up in front of the mill, and I talked to my mother in front of her house, and when I returned to my mother-in-law's the doors were locked. I knocked, they didn't let me in, so I crawled in my car and I slept in the front seat of my car.

'Q. You testified you went there with the intentions of staying with her that night? A. Yes, I went there with the intention of staying.

'Q. Then if she deserted you and you desired to stay with her in October, 1953, that wasn't desertion, you attempted reconciliation, is that correct? A. Yes, I attempted it.

'Q. And are you still willing to do so? A. No, I wouldn't, I think she has had ample opportunity to decide whether she wants to live with me or not before.

'Q. Sergeant, your testimony as I understand it, I want to get the record straight, you did not stay with your wife during October, 1953, at her house. A. No, I did not.

'Q. You did not live or cohabit with her during that time, is that your testimony? A. That's correct.'

The plaintiff further testified that after January, 1953, and when he had been transferred to California, he there acquired an apartment and unsuccessfully undertook to have defendant join him, suggesting that she come either by plane or train, and he would provide for her transportation.

Prior to reporting herein any of the testimony in behalf of defendant, it becomes necessary that we pass upon the issue raised by defendant's stated Question 3: 'Did the trial Judge err in admitting the testimony of Prentiss A. Frazier over objection of defendant's counsel?' Defendant's exception 6 alleges that the testimony of this witness was hearsay and therefore inadmissible, and was over her objection. The only objection to the testimony of this witness, if such could be considered an objection, was made near the beginning thereof when he was asked by plaintiff's counsel what his brother, the plaintiff herein, told him was his reason for being in Bennettsville in January, 1953. This was made wholly immaterial when defendant also testified that plaintiff was there to get her and their child to go with him to live at Denthill Farms, Virginia, and that she went there with him. Further, at the time this question was 'objected' to, it was not answered, and there is no other objection to his testimony recorded. Another portion of his testimony that could have been objected to as being...