Gilfillan v. Gilfillan
| Decision Date | 17 April 1963 |
| Docket Number | No. 18056,18056 |
| Citation | 242 S.C. 258,130 S.E.2d 578 |
| Parties | Thomas Bert GILFILLAN, Appellant, v. Bonnie Lattimore GILFILLAN, Respondent. |
| Court | South Carolina Supreme Court |
Melvin L. Roberts, York, for appellant.
W. M. Brice, Jr., York, for respondent.
By its decree dated August 5, 1961, the Juvenile and Domestic Relations Court for York County awarded a divorce to Bonnie Lattimore Gilfillan and awarded to her custody of the three children of her marriage to Thomas Bert Gilfillan, and he has appealed.
The action was brought by appellant for a divorce from respondent on the ground of adultery and for custody of the three children. She denied the charge of adultery and sought a divorce from appellant on the ground of physical cruelty. Several hearings were held and much testimony was taken. As is usual in such cases, the testimony of the parties and of their respective witnesses was in sharp conflict on most of the questions involved. Decision of the issues necessarily depended upon the trial judge's appraisal of the credibility of the witnesses. For reasons which often have been stated, he had a better opportunity to appraise the testimony than we have. He resolved the conflicts in the testimony in favor of respondent and concluded that the charge of adultery had not been proved and that appellant had been guilty of such physical cruelty toward respondent as to entitle her to a divorce. After carefully considering the entire record, we are not convinced that these conclusions were against the weight of the evidence.
As we interpret the exceptions, they do not assign as error the conclusion of the trial judge that the physical abuse testified to by respondent constituted physical cruelty within the meaning of the divorce law. Instead, the error assigned is that there was insufficient corroborative evidence to justify a divorce on this ground.
Kenny Gilfillan, the eight year old son of the parties, was placed on the stand by appellant. He was apparently nervous, reluctant and evasive on direct examination. On observing this, the trial judge retired to his chambers with the witness and the attorneys. When the examination was resumed, the boy's attitude apparently changed and he answered questions much more freely. His testimony may fairly be evaluated as corroborating that of his mother about a physical attack made on her by appellant immediately prior to the final separation. Furthermore, there were corroborating circumstances. Several witnesses, including a police officer and a doctor, testified that they observed bruises on respondent's person. The appellant admitted that his wife 'got beat up' on the night in question, but testified that this was done by someone else after she left his house. There is no other suggestion in the record that respondent was beaten by anyone other than appellant. The exceptions based upon a claimed lack of sufficient corroborating evidence are without merit.
After the hearings were closed, appellant took young Kenny Gilfillan to the office of his attorney, where the boy was interviewed at length and a tape recording was made. Appellant served notice of a motion to reopen the case and 'to receive into evidence' a recording or transcript of this interview 'on the grounds that the interview shows that his testimony given at the prior hearing in this matter was false or at least contradictory to the information given in this interview, and will be used to impeach the witness, Kenneth Gilfillan, and for such other probative value as such evidence may have.'
The court's refusal to grant this motion is assigned as error. The exception is without merit. Contradictory statements may not be used to impeach a party's own witness except upon a showing of surprise. State v. Trull, 232 S.C. 250, 101 S.E.2d 648, and authorities cited therein. No claim of surprise was made as a ground of the motion; nor does the exception make the point that the inconsistent statement should have been admitted for purposes of impeachment because the unfavorable testimony of the witness had taken appellant by surprise. Therefore, the long, argumentative exception does not embody a meritorious assignment of error and was properly overruled.
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State v. Ellefson
...given, when such statements are otherwise incompetent. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969); Gilfillan v. Gilfillan, 242 S.C. 258, 130 S.E.2d 578 (1963); State v. Nelson,192 S.C. 422, 7 S.E.2d 72 Whether a party has been surprised is largely a matter within the discretion of......
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Okatie River v. Southeastern Site Prep
...a civil case."). One exception to the rule was where the witness' testimony took the party by surprise. See Gilfillan v. Gilfillan, 242 S.C. 258, 261, 130 S.E.2d 578, 580 (1963) ("Contradictory statements may not be used to impeach a party's own witness except upon a showing of surprise.");......
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State v. Bendoly, 20930
...the State's witness hostile. See: State v. Ellefson, 266 S.C. 494, 224 S.E.2d 666 (1976); State v. Harvey, supra; Gilfillan v. Gilfillan, 242 S.C. 258, 130 S.E.2d 578 (1963); State v. Trull, 232 S.C. 250, 101 S.E.2d 648 (1958); State v. Nelson, Since the witness's prior sworn testimony was ......