Gibson v. Gibson

Decision Date18 September 1984
Docket NumberNo. 0298,0298
CourtSouth Carolina Court of Appeals
PartiesSally B. GIBSON, Respondent, v. Bobby T. GIBSON, Appellant. . Heard

Hans F. Paul, Charleston, for appellant.

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 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 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.

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 S.E.2d 641 (1967) ] allows a court not only to look at the result brought about by the spouse's action toward the other but permits it also to consider the nature of the act itself. See, 27A C.J.S. Divorce § 26 at 71 (1959); cf. Vickers v. Vickers, 255 S.C. 25, 176 S.E.2d 561 (1970) (wherein the Supreme Court emphasized that the complaint failed "to allege any act of personal violence or a course of physical treatment such as would endanger life, limb or health and render cohabitation unsafe").

We therefore hold that, if the wrongful act involves actual violence directed by one spouse at the other, "bodily injury" is not required in order to find "physical cruelty."

A single assault by one spouse upon the other spouse, then, can constitute a basis for a divorce on the ground of physical cruelty; however, the assault must be life threatening or it must be either indicative of an intention to do serious bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future. Cf., Gill v. Gill, 269 S.C. 337, 237 S.E.2d 382 (1977) (husband held not entitled to divorce on ground of physical cruelty where, among other things, wife threatened husband with a BB gun and husband admitted he was not afraid); McKenzie v. McKenzie, 254 S.C. 372, 175 S.E.2d 628 (1970) (a single battery held to be so severe and atrocious as to endanger life where wife shot at husband four times at close range and one bullet entered husband's chest); DeMott v. DeMott, 198 Va. 22, 92 S.E.2d 342 (1956) (a single battery involving husband throwing wife against the wall held not to constitute a ground for divorce).

Here, there is evidence that the wife committed an act of actual violence. She discharged a firearm. What is not clear, however, is whether she committed an act of actual personal violence, i.e., whether the wife directed actual violence at her husband. The family court made no findings of fact in that regard.

The family court likewise made no findings of fact regarding whether the wife's single act of violence actually endangered the husband's life or whether the act manifested an intention on her part to cause the husband serious bodily harm or constituted a reasonable basis for believing the husband might later be seriously hurt. The family court also made no findings of fact regarding whether the husband provoked the wife's conduct and, if so, whether her conduct was out of all proportion to any provocation.

Although the Court of Appeals has jurisdiction in an action for divorce to find the facts in accordance with its own view of the preponderance of the evidence [ Simons v. Simons, 263 S.Ct. 509, 211 S.E.2d 555 (1975) ], we do not feel comfortable in this instance in making our own findings of fact. The record has long grown cold. Also, we do not have the benefit of findings of fact by the family court in several important areas and the benefit of any evaluation by the family court regarding the credibility of the parties, particularly as to the shooting incident and the circumstances surrounding it. In our opinion, justice is better served here by our following the procedure outlined in Smith v. Smith, supra, and remanding the case to the family court for appropriate findings of fact in accordance with "the pertinent principles of applicable law." 253 S.C. at 356, 170 S.E.2d 650, 652 (1969).

Because the factor of fault on the wife's part could well determine how the issues of alimony or separate maintenance, equitable distribution, and attorney's fees ought to be decided, we...

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8 cases
  • Johnson v. Johnson
    • United States
    • Court of Appeals of South Carolina
    • 14 de março de 1988
    ...the manner in which distribution is to take place. Toler v. Toler, 292 S.C. 374, 356 S.E.2d 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 Marital Proper......
  • Thomson v. Thomson
    • United States
    • Court of Appeals of South Carolina
    • 25 de abril de 2008
    ...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). In Gibson, the husband appealed a family court order denying him a divorce on the ground of physical cruelty after......
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    • Court of Appeals of South Carolina
    • 10 de maio de 1999
    ...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 of Husband......
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    • United States
    • Court of Appeals of South Carolina
    • 5 de abril de 2010
    ...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 McDowell v. McDowell, 300 S.C. 96, 9......
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