Gorecki v. Gorecki, 4669.

• Decision Date: 05 April 2010
• Docket Number: No. 4669.,4669.
• Citation: 387 S.C. 626,693 S.E.2d 419
• Parties: Leah GORECKI, Respondent,v.Jeffrey Anthony GORECKI, Appellant.
• Court: South Carolina Court of Appeals

387 S.C. 626

693 S.E.2d 419

Leah GORECKI, Respondent,v.Jeffrey Anthony GORECKI, Appellant.

No. 4669.

Court of Appeals of South Carolina.

Heard Feb. 10, 2010.

Decided April 5, 2010.

Rehearing Denied June 4, 2010.

COPYRIGHT MATERIAL OMITTED

C. Lance Sheek, of Greenwood, for Appellant.

LaDonna Sargent Johnson, of Greenwood, for Respondent.

WILLIAMS, J.

In this appeal, Jeffrey Gorecki (Husband) contends the family court erred in (1) awarding Leah Gorecki (Wife) a divorce on the grounds of physical cruelty while denying Husband a divorce on the grounds of adultery; (2) awarding Wife 40% of the marital residence; (3) awarding Wife permanent periodic alimony; and (4) granting Wife attorneys' fees and costs. We affirm.

FACTS

Husband and Wife married on November 20, 1975. They had three children during the course of their marriage, all of whom were emancipated before the parties' separation in September 2005. At the time of the hearing, Wife worked with mentally disabled children at a middle school, and Husband worked at Cooper Power Systems where he was earning approximately $51,000 per year.

Shortly after the parties separated, Wife filed for divorce on the ground of physical cruelty, seeking spousal and child support, equitable division of the marital estate, and attorneys' fees. Husband counterclaimed, seeking a divorce based on adultery and requesting custody ¹ of their granddaughter, equitable division of the marital estate, and attorneys' fees.

At the final hearing on October 2 and 3, 2006, Wife testified to several instances of physical abuse in support of her claim that Husband was physically abusive. In response to Wife's allegations of abuse, Husband claimed Wife had previously engaged in an extramarital affair.² After hearing testimony from both parties and their respective witnesses, the family court issued an order on November 9, 2006, awarding Wife a divorce on the grounds of physical cruelty. The family court granted Wife $1,000 per month in permanent periodic alimony, divided the Husband's pension and 401(k) on a 50/50 basis, and split the marital residence on a 60/40 basis in favor of Husband. The family court also required Husband to pay $8,038.65 in Wife's attorneys' fees and costs. This appeal followed.

STANDARD OF REVIEW

On appeal from a family court order, this court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). When reviewing decisions of the family court, we are cognizant of the fact the family court had the opportunity to see the witnesses, hear “the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character.” DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972) (internal citation and quotations omitted).

LAW/ANALYSIS

1. Grounds for Divorce

Husband contends the family court erred in awarding Wife a divorce based on physical cruelty when he presented evidence entitling him to a divorce based on Wife's adultery. We disagree.

Physical cruelty is “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). In considering 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, 300 S.C. 96, 99, 386 S.E.2d 468, 469 (Ct.App.1989). The assault must, however, be life-threatening or 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. Gibson, 283 S.C. at 323, 322 S.E.2d at 683. The party alleging physical cruelty has the burden of proving it by a preponderance of the evidence. Wood v. Wood, 269 S.C. 600, 605, 239 S.E.2d 315, 317 (1977). A “preponderance of the evidence” is evidence which convinces as to its truth. DuBose, 259 S.C. at 424, 192 S.E.2d at 331.

Similarly, proof of adultery must be “clear and positive and the infidelity must be established by a clear preponderance of the evidence.” McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct.App.1987) (internal citation and quotations omitted). Because of the “clandestine nature” of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses is rarely possible, so direct evidence is not necessary to establish the charge. Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct.App.1987). Accordingly, adultery may be proven by circumstantial evidence; however, evidence placing a spouse and a third party together on several occasions, without more, does not warrant a finding of adultery. Hartley v. Hartley, 292 S.C. 245, 246-47, 355 S.E.2d 869, 871 (Ct.App.1987).

Generally, “proof [of adultery] must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed.” Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74 (Ct.App.1985). Furthermore, when issues relate to proof regarding which party, if either, is entitled to a divorce, and the evidence is conflicting and susceptible of different inferences, it becomes the family court's duty to determine not only the law of the case but the facts as well because the family court observed the witnesses and could determine how much credence to give each witness's testimony. Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985).

In this case, Wife testified to many instances of physical abuse at the hands of Husband over the course of their marriage. She stated Husband slapped her, pushed her into a wall, and knocked her to the ground while they lived in Michigan in the 1980s. Wife also claimed Husband continued to abuse her when they were living in South Carolina, including instances of Husband hitting, shoving, slapping, and cursing at her, which resulted in Wife calling police several times and being hospitalized on one occasion. At least one of these episodes was documented by a police incident report and photographs of Wife's bruises. The parties' eldest daughter corroborated Wife's account of Husband's abuse at the hearing. In contrast to her older sister, the parties' youngest daughter stated that while her parents argued, she never witnessed Husband physically abuse Wife, and to her knowledge, he had never hit or pushed Wife.

According to Wife, although she and Husband had separated numerous times over the course of their thirty-one-year marriage, she finally decided to leave Husband in September 2005 after he shoved her into a wall, verbally abused her and their grandchild, and then broke her phone when she tried to call for help. Wife testified she was in serious fear of bodily harm as a result of this incident, and even when he was not abusing her, she felt constantly threatened and under his control.

We find the September 2005 assault sufficient to grant Wife a divorce based on physical cruelty. See McDowell, 300 S.C. at 99, 386 S.E.2d at 469 (“A single assault by one spouse upon the other spouse can constitute physical cruelty ... [if it is] life threatening or ... indicative of an intention to do seriously bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future.”). In any event, the numerous instances of abuse, culminating in the September 2005 assault, indicate Husband's intent to seriously harm Wife, which warrants a divorce based on physical cruelty. See Brown, 215 S.C. at 508, 56 S.E.2d at 333 (“Continued acts of personal violence producing physical pain or bodily injury and a fear of future danger are recognized as sufficient cause for a divorce for cruelty in nearly all jurisdictions ...”). The testimony elicited at the final hearing proved that Husband's repeated cycle of abusive behavior over the course of their marriage caused Wife to reasonably fear for her safety. See Gibson, 283 S.C. at 323, 322 S.E.2d at 683 (stating an assault not resulting in actual bodily injury may constitute physical cruelty when it causes reasonable fear of serious danger or bodily harm in the future). Moreover, the family court specifically found Wife's testimony and that of her witnesses to be more credible than that of Husband and his witnesses. Based on the testimony and evidence presented at the final hearing, we discern no error in the family court's decision to grant Wife a divorce on the grounds of physical cruelty. See Tinsley v. Tinsley, 326 S.C. 374, 380, 483 S.E.2d 198, 201 (Ct.App.1997) (finding the determination of whether conduct falls within the meaning of physical cruelty is governed by the particular circumstances of each case).

Regarding Husband's contention that the family court erred in failing to grant him a divorce on the grounds of adultery, we find Husband's proof of adultery was insufficient.

In support of his claim, Husband called their son's ex-girlfriend, Nikki Hastings (Nikki), to testify at the hearing. Nikki stated she engaged in sexual relations with Wife on several occasions after Wife revealed she had romantic feelings for her. When questioned by Wife's counsel, Nikki denied spreading rumors about sexual encounters she claimed to have had with other women in the community.

Wife denied these allegations and stated Nikki had fabricated this story when Wife and Husband told Nikki that she would have to move out of their residence after Wife caught Nikki viewing pornographic websites. Wife's half-sister testified on behalf of Wife and stated she was certain Wife had never engaged in any homosexual relationships. Susan Mohr, a mutual friend of...