Gill v. Gill, 20507

• Decision Date: 08 September 1977
• Docket Number: No. 20507,20507
• Citation: 237 S.E.2d 382,269 S.C. 337
• Court: South Carolina Supreme Court
• Parties: Mary Ann GILL, Appellant, v. Charles GILL, Respondent.

Page 382

237 S.E.2d 382

269 S.C. 337

Mary Ann GILL, Appellant, v. Charles GILL, Respondent.

No. 20507.

Supreme Court of South Carolina.

Sept. 8, 1977.

John B. Culbertson, Luther C. Elrod, III, and John B. Duggan, Greenville, for appellant.

Long & Whitney, Union, and O. Eugene Powell, Jr., of Donelan & Donelan, Columbia, for respondent.

NESS, Justice.

Appellant, Mary Ann Gill, instituted divorce proceedings against respondent Charles Gill, and sought custody of the couple's child, alimony, and support. Subsequently, appellant amended her complaint to seek a separation rather than a divorce. Respondent counterclaimed for a divorce on the ground of physical cruelty.

Respondent was granted a divorce on the basis of physical cruelty by the wife. We reverse.

Physical cruelty by a spouse which justifies the granting of a divorce in this State, has generally been defined as "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, 508, 56 S.E.2d 330, 333 (1949). See also Crowder v. Crowder, 246 S.C. 299, 143 S.E.2d 580 (1965). While there is no specific test for determining whether or not certain acts constitute physical cruelty, it has been repeatedly stated that not every slight violence committed by the husband or wife against the other will authorize a divorce on this ground. Brown, supra; Barstow v. Barstow, 223 S.C. 136, 74 S.E.2d 541 (1953).

In his case, respondent alleged several acts of physical cruelty by the wife to establish his grounds for divorce. One instance involved a confrontation at a motel where respondent was staying with another woman. There was conflicting testimony as to whether appellant physically attacked respondent upon confronting him there. In any event, respondent admitted that he was not particularly afraid of his wife on that occasion.

Another alleged attack occurred following a similar incident at the motel. The parties left the motel in two vehicles, with appellant's car following respondent's truck. A short distance from the motel, appellant allegedly intentionally crashed her car into the back of respondent's truck, damaging both vehicles and injuring herself. The testimony surrounding this event is contradictory, the appellant contending the respondent forced the collision by suddenly applying his brakes.

Respondent also alleged that his wife threatened him with a pistol on one occasion. However, the "pistol" was actually a BB or pellet gun.

While acknowledging that a wife may be capable of inflicting acts of physical cruelty upon a husband, this Court has held that:

"(S)light acts of violence by a wife from which the husband can easily protect himself do not constitute physical cruelty entitling him to a divorce." Barstow, supra, 223 S.C. at 142, 74 S.E.2d at 543-544. See also 27A C.J.S. Divorce § 26.

Although the evidence reveals a deplorable state of affairs between the parties, it does not show that respondent had sufficient reason to apprehend danger to his life, limb or health. In nearly every instance, the conduct of the appellant was provoked by the acts of her husband.

The evidence shows that appellant is willing to continue her marital relations with respondent. She seeks a separation rather than a divorce.

In view of the nature of the alleged acts by the wife and the testimony surrounding those acts, we do not believe the husband should have been granted a divorce on the ground of physical cruelty. Accordingly, the order granting respondent a divorce is reversed.

The lower court also erred in denying appellant's request for periodic alimony. The decision of the...