Gibson v. Gibson, No. 0298

CourtCourt of Appeals of South Carolina
Writing for the CourtGOOLSBY; BELL; SHAW; SHAW
Citation322 S.E.2d 680,283 S.C. 318
PartiesSally B. GIBSON, Respondent, v. Bobby T. GIBSON, Appellant. . Heard
Docket NumberNo. 0298
Decision Date18 September 1984

Page 680

322 S.E.2d 680
283 S.C. 318
Sally B. GIBSON, Respondent,
v.
Bobby T. GIBSON, Appellant.
No. 0298.
Court of Appeals of South Carolina.
Heard Sept. 18, 1984.
Decided Oct. 23, 1984.

Page 681

[283 S.C. 320] Hans F. Paul, Charleston, for appellant.

Page 682

[283 S.C. 321] William S. Barr and Capers G. Barr, III, both of Barr, Barr & McIntosh, Charleston, for respondent.

GOOLSBY, Judge:

The wife Sally B. Gibson brought this action against her husband Bobby T. Gibson seeking separate maintenance, equitable distribution, and attorney's fees. The husband counterclaimed seeking a divorce on the ground of physical cruelty. He too asked for an equitable distribution of the marital property. The family court granted the wife separate maintenance, denied the husband a divorce, divided the marital property between the parties, and awarded the wife attorney's fees. The husband appeals. We reverse and remand the case to the family court.

The principal issue on appeal relates to the denial to the husband of a divorce on the ground of physical cruelty. Other issues included in the husband's appeal concern the grant to the wife of separate maintenance, the division of the marital property between the parties, and the award to the wife of attorney's fees. 1

The husband asserts that the family court erred in failing to grant him a divorce on the ground of physical cruelty. He alleged in his complaint that the wife's attempt to kill him by shooting at him with a firearm constitutes physical cruelty.

The parties were married in 1958. At the time of the family court hearing in 1982, the wife was 57 years old and the husband was 48. In the last several years, their marriage became strained with the parties occupying separate bedrooms, taking separate vacations, and living separate social lives. Finally, in late June, 1981, the wife moved out of the marital home altogether following an argument that concluded[283 S.C. 322] with the husband expressing a desire for a divorce. Some days later, the wife returned to the marital home at an early morning hour in a heavily intoxicated condition. An argument with her husband ensued. During the quarrel, the wife went into her bedroom, locked the door, and fetched a .22 caliber rifle kept in a closet. She then shot through her closed bedroom door 16 times with the rifle. The husband claims that a "small splinter" struck him on the face when the wife fired the first shot. The wife, however, says that the husband was in his bedroom and not outside her door at the time she started shooting. The wife later that same morning, after the husband dressed and went to work, set fire to the house rendering it uninhabitable. She was later hospitalized and placed under psychiatric care for several weeks.

In South Carolina, a divorce on the ground of cruelty is specifically limited to physical cruelty. S.C. Const., art. XVII, § 3 (1895); S.C.Code of Laws § 20-3-10 (1976); see, Sumner, The South Carolina Divorce Act of 1949, 3 S.C.L.Q. 253 at 268-70 (1951). "Physical cruelty," as used in our divorce law, means "actual personal violence, or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe." Brown v. Brown, 215 S.C. 502, 506, 56 S.E.2d 330, 333 (1949). In determining what acts constitute physical cruelty, the circumstances of the particular case must be considered. Crowder v. Crowder, 246 S.C. 299, 143 S.E.2d 580 (1965). A single act of physical cruelty, however, will not ordinarily provide a basis for divorce, unless the act "is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future." Smith v. Smith, 253 S.C. 350, 354, 170 S.E.2d 650, 652 (1969). Moreover, a divorce on the ground of physical cruelty will not be granted when the physical cruelty

Page 683

was provoked by the complaining spouse and the physical cruelty is not out of all proportion to the provocation. Miller v. Miller, 225 S.C. 274, 82 S.E.2d 119 (1954).

The family court held that the wife's conduct in discharging a firearm through a closed door while she was in an angry and intoxicated condition did not constitute physical cruelty toward the husband because the husband did not sustain bodily injury.

[283 S.C. 323] No South Carolina case directly answers the question of whether it is necessary for a spouse to prove that he or she suffered bodily injury where a divorce is sought on the ground of physical cruelty.

In determining whether physical cruelty was directed by one spouse against the other, the definition given the term "physical cruelty" by the Supreme Court in Brown v. Brown, supra, and subsequent cases [ e.g., Wood v. Wood, 269 S.C. 600, 239 S.E.2d 315 (1977); Brown v. Brown, 250 S.C. 114, 156...

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8 practice notes
  • Johnson v. Johnson, No. 1212
    • United States
    • Court of Appeals of South Carolina
    • March 14, 1988
    ...manner in which distribution is to take place. Toler v. Toler, 292 S.C. 374, 356 S.E.2d[296 S.C. 294] 429 (Ct.App.1987); Gibson v. Gibson, 283 S.C. 318, 322 S.E.2d 680 (Ct.App.1984). C. Identification of marital property is controlled by the provisions of the Equitable Apportionment of Mari......
  • Thomson v. Thomson, No. 4378.
    • United States
    • Court of Appeals of South Carolina
    • April 25, 2008
    ...In considering what acts constitute physical cruelty, the court must consider the circumstances of the particular case. Gibson v. Gibson, 283 S.C. 318, 322, 322 S.E.2d 680, 682 (Ct.App.1984). 661 S.E.2d 134 In Gibson, the husband appealed a family court order denying him a divorce on the gr......
  • Morris v. Morris, No. 2994.
    • United States
    • Court of Appeals of South Carolina
    • May 10, 1999
    ...190, 196, 375 S.E.2d 338, 342 (Ct.App.1988); Rampey v. Rampey, 286 S.C. 153, 156, 332 S.E.2d 213, 214 (Ct.App.1985); Gibson v. Gibson, 283 S.C. 318, 325, 322 S.E.2d 680, 684 (Ct.App.1984). The family court expressly considered several relevant factors in determining an appropriate division ......
  • Gorecki v. Gorecki, No. 4669.
    • United States
    • Court of Appeals of South Carolina
    • April 5, 2010
    ...what acts constitute physical cruelty, the family court must consider the circumstances of the particular case. Gibson v. Gibson, 283 S.C. 318, 322, 322 S.E.2d 680, 682 (Ct.App.1984). A single assault by one spouse upon the other spouse can amount to physical cruelty. McDowell v. McDowell, ......
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8 cases
  • Johnson v. Johnson, No. 1212
    • United States
    • Court of Appeals of South Carolina
    • March 14, 1988
    ...manner in which distribution is to take place. Toler v. Toler, 292 S.C. 374, 356 S.E.2d[296 S.C. 294] 429 (Ct.App.1987); Gibson v. Gibson, 283 S.C. 318, 322 S.E.2d 680 (Ct.App.1984). C. Identification of marital property is controlled by the provisions of the Equitable Apportionment of Mari......
  • Thomson v. Thomson, No. 4378.
    • United States
    • Court of Appeals of South Carolina
    • April 25, 2008
    ...In considering what acts constitute physical cruelty, the court must consider the circumstances of the particular case. Gibson v. Gibson, 283 S.C. 318, 322, 322 S.E.2d 680, 682 (Ct.App.1984). 661 S.E.2d 134 In Gibson, the husband appealed a family court order denying him a divorce on the gr......
  • Morris v. Morris, No. 2994.
    • United States
    • Court of Appeals of South Carolina
    • May 10, 1999
    ...190, 196, 375 S.E.2d 338, 342 (Ct.App.1988); Rampey v. Rampey, 286 S.C. 153, 156, 332 S.E.2d 213, 214 (Ct.App.1985); Gibson v. Gibson, 283 S.C. 318, 325, 322 S.E.2d 680, 684 (Ct.App.1984). The family court expressly considered several relevant factors in determining an appropriate division ......
  • Gorecki v. Gorecki, No. 4669.
    • United States
    • Court of Appeals of South Carolina
    • April 5, 2010
    ...what acts constitute physical cruelty, the family court must consider the circumstances of the particular case. Gibson v. Gibson, 283 S.C. 318, 322, 322 S.E.2d 680, 682 (Ct.App.1984). A single assault by one spouse upon the other spouse can amount to physical cruelty. McDowell v. McDowell, ......
  • Request a trial to view additional results

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