Hartley v. Hartley

Decision Date24 March 1987
Docket NumberNo. 0939,0939
Citation292 S.C. 245,355 S.E.2d 869
CourtSouth Carolina Court of Appeals
PartiesPaulette M. HARTLEY, Respondent-Appellant, v. Mahlon (Skip) HARTLEY, Jr., Appellant-Respondent. . Heard

Larry L. Hanna and Randall K. Mullins, Myrtle Beach, for respondent-appellant.

Harry C. Wilson, Jr., Sumter, for appellant-respondent.

GOOLSBY, Judge.

In this domestic case, Paulette M. Hartley and Mahlon (Skip) Hartley, Jr., both appeal from the trial court's order granting Mr. Hartley a divorce on the ground of adultery, awarding custody of the parties' minor daughter to Mrs. Hartley, denying Mrs. Hartley's request for attorney fees, and limiting Mr. Hartley's visitation rights. We are satisfied, however, that the judgment should be affirmed.

Although we have jurisdiction in a case of this kind to find facts based on our own view of the preponderance of the evidence, we are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in the better position to evaluate their testimony. Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct.App.1985).

1. The trial court committed no error in granting Mr. Hartley a divorce on the ground of adultery and in refusing to grant

Mrs. Hartley a divorce on the ground of one-year continuous separation.

Adultery as a ground of divorce must be established by a clear preponderance of the evidence. Odom v. Odom, 248 S.C. 144, 149 S.E.2d 353 (1966). Proof of adultery, however, may be established by circumstantial evidence. Loftis v. Loftis, 284 S.C. 216, 325 S.E.2d 73 (Ct.App.1985). Evidence placing a spouse and a third party together on several occasions, without more, does not warrant the conclusion that adultery was committed. Fox v. Fox, 277 S.C. 400, 288 S.E.2d 390 (1982).

Here, the evidence does more than simply place Mrs. Hartley and a third party together.

On June 22, 1984, Mr. Hartley, his father and another person saw Mrs. Hartley and John D. Swope enter an apartment at Myrtle Beach and spend the night together. They were observed in various states of undress. Mr. Swope was photographed wearing his undershorts at 3:00 a.m. A detective testified that Mr. Swope visited Mrs. Hartley's home on November 19, 1984, from 7:54 p.m. until 11:48 p.m. and again on November 20, 1984, from 7:10 p.m. until 11:39 p.m. Mrs. Hartley confirmed Mr. Swope visited her home on both occasions. She also admitted that she "dated" Mr. Swope; however, she denied that she engaged in sexual relations with him after August 21, 1984.

Mrs. Hartley objects to the trial court's "including [the June 22, 1984] incident in [its] finding of an ongoing relationship in support of [its] conclusion that [Mr. Hartley] was entitled to a divorce on the ground of adultery" because the trial court in an order issued on November 2, 1984, after a hearing on August 21, 1984, dismissed with prejudice Mr. Hartley's claim for divorce based on any adultery committed by Mrs. Hartley before August 21, 1984. Without the June 22, 1984, incident, Mrs. Hartley argues, the record does not support a divorce on the ground of adultery.

Although the trial court was precluded from granting Mr. Hartley a divorce on the ground of adultery based on the June 22, 1984 incident, the trial court was not precluded from giving consideration to the incident in determining the issue of whether Mrs. Hartley had an adulterous relationship with Mr. Swope after August 21, 1984. The trial court could properly consider the June 22, 1984 incident as evidence that Mrs. Hartley and Mr. Swope were disposed to commit the offense if given the opportunity to do so. Cf. Rabon v. Rabon, 289 S.C. 49, 344 S.E.2d 615 (Ct.App.1986) (wherein the court noted that condonation can be revoked by subsequent conduct). Where there is proof that a spouse and the spouse's paramour are both disposed to commit adultery and the opportunity has existed for them to satisfy their inclinations, a finding of adultery is allowed. 27A C.J.S. Divorce § 166 at 337 (1986); Id. § 193b at 383.

Since we have found that the trial court committed no error in granting Mr. Hartley a divorce on the ground of adultery, the trial court was not required to address Mrs. Hartley's claim for divorce on the ground of one-year continuous separation. Anders v. Anders, 285 S.C. 512, 331 S.E.2d 340 (1985).

2. The trial court committed no error in refusing to award Mrs. Hartley attorney fees.

An award of attorney fees is generally discretionary with the trial court. Edens v. Edens, 273 S.C. 303, 255 S.E.2d 856 (1979); McNaughton v. McNaughton, 258 S.C. 554, 189 S.E.2d 820 (1972); Collins v. Collins, 283 S.C. 526, 324 S.E.2d 82 (Ct.App.1984); S.C.Code of Laws § 20-3-140 (1976). Our review of the record reveals no abuse of discretion by the trial court in not awarding attorney fees to Mrs. Hartley.

3. The trial court committed no error in awarding custody of the parties' minor child to Mrs. Hartley.

Mr. Hartley contends the trial court should have awarded him custody of the parties' three year old daughter because of Mrs. Hartley's ongoing adulterous relationship with Mr. Swope and because of Mrs. Hartley's neglect of the daughter. Regarding the latter contention, Mr. Hartley found numerous flea bites on the daughter when he picked her up for visitation.

In custody matters, the court's paramount concern is the welfare and best interest of the child. Matthews v. Matthews, 273 S.C. 130, 254 S.E.2d 801 (1979). In determining the best interest of the child, the court must consider the facts of the past and the present and predict "which of the two available environments will advance the best interest of the child and bring about the best adjusted mature individual." Cook v. Cobb, 271 S.C. 136, 142, 245 S.E.2d 612, 615 (1978). A parent's morality, while a proper consideration, is "limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child." Davenport v. Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975). The award of a child's custody is...

To continue reading

Request your trial
19 cases
  • Panhorst v. Panhorst
    • United States
    • South Carolina Court of Appeals
    • November 13, 1989
    ...to commit adultery. Proof of inclination and opportunity is sufficient to establish a prima facie case. See Hartley v. Hartley, 292 S.C. 245, 355 S.E.2d 869 (Ct.App.1987) (adultery may be proven by circumstantial evidence showing inclination and opportunity to commit adultery). Barbara resp......
  • Whetsell v. Whetsell
    • United States
    • South Carolina Court of Appeals
    • March 7, 2007
    ... ... Proof of adultery by circumstantial evidence ... must establish both a disposition and opportunity to commit ... the offense. Hartley v. Hartley, 292 S.C. 245, 247, ... 355 S.E.2d 869, 871 (Ct. App. 1987). Generally, proof must be ... sufficiently definite to identify ... ...
  • Brown v. Brown
    • United States
    • South Carolina Court of Appeals
    • May 28, 2008
    ...evidence that establishes both a disposition to commit the offense and the opportunity to do so. Hartley v. Hartley, 292 S.C. 245, 246-47, 355 S.E.2d 869, 871 (Ct.App.1987). Generally, "proof must be sufficiently definite to identify the time and place of the offense and the circumstances u......
  • Prevatte v. Prevatte
    • United States
    • South Carolina Court of Appeals
    • December 7, 1988
    ...where there is evidence of both the opportunity to commit adultery and the disposition to commit adultery. Hartley v. Hartley, 292 S.C. 245, 355 S.E.2d 869 (Ct.App.1987). State of mind can be inferred from circumstances. For example, it can be inferred that a piano player in a bawdyhouse kn......
  • Request a trial to view additional results
2 books & journal articles
  • Chapter Four Divorce
    • United States
    • Marital Litigation in South Carolina (SCBar)
    • Invalid date
    ...to commit adultery. Proof of inclination and opportunity is sufficient to establish a prima facie case. See Hartley v. Hartley, 292 S.C. 245, 355 S.E. (2d) 869 (Ct. App. 1987) (adultery may be proven by circumstantial evidence showing inclination and opportunity to commit adultery). Suffice......
  • Chapter Eleven Visitation
    • United States
    • Marital Litigation in South Carolina (SCBar)
    • Invalid date
    ...from former marriages had died accidentally while in their father's sole custody within months of each other in Hartley v. Hartley, 292 S.C. 245, 355 S.E.2d 869 (Ct. App. 1987). The Supreme Court upheld a restriction of visitation to eight hours (10:00 a.m. to 6:00 p.m.) on one day each wee......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT