Harvey v. Harvey, 17251

• Decision Date: 29 January 1957
• Docket Number: No. 17251,17251
• Citation: 96 S.E.2d 469,230 S.C. 457
• Parties: Freda Perry HARVEY, Plaintiff-Respondent, v. Furman V. HARVEY, Defendant-Appellant.
• Court: South Carolina Supreme Court

Page 469

96 S.E.2d 469

230 S.C. 457

Freda Perry HARVEY, Plaintiff-Respondent, v. Furman V. HARVEY, Defendant-Appellant.

No. 17251.

Supreme Court of South Carolina.

Jan. 29, 1957.

Harvey & Harvey, Beaufort, for appellant.

Thomas & Thomas, Beaufort, for respondent.

TAYLOR, Justice.

This appeal arises out of cross-actions for divorce brought in the Court of Common Pleas for Beaufort County.

Plaintiff-Respondent, Freda Perry Harvey, brought an action seeking a divorce on the grounds of physical cruelty, the custody of the four children, permanent alimony to support such children, and counsel fees. The husband, Defendant-Appellant by way of answer entered a general denial and also filed a cross-complaint seeking a divorce on the grounds of alleged desertion.

The matter was referred to a Special Referee for the purpose of taking testimony only and reporting to the Court of Common Pleas without recommendation. Thereafter, the Hearing Judge found that the parties were married in October, 1937, to which union four children were born, Furman Val Harvey, Jr. (1938), Gail Harvey (1940), Ray Lee Harvey (1943), and John Gary Harvey (1948); that the parties are living separate and apart and all of the children reside with the father, who at that time, was paying temporary alimony in the sum of $25.00 per week. He further found as a matter of fact that the Plaintiff, wife, 'has failed to carry the burden of proof and has not convinced the Court by the preponderance of the evidence that her husband is guilty of physical cruelty as contemplated by the divorce law so as to justify the issuance of a divorce in her favor. A review of the testimony indicates that there is some evidence of the same, but it is not convincing when proper credence is given to the testimony and it is weighed in the light of the interest of the witnesses and in the light of their opportunity to know of which they speak.' As to the Defendant-Appellant, he found 'that he has failed to carry the burden of proof and has not established by the greater weight of the evidence that his wife deserted him for a period of one year. The evidence does not support the conclusion that she left him without just cause and excuse and stayed away for the year required by the statute. It is obvious that this is a case of incompatibility caused largely by the indifference of the husband and the nervous disposition of the wife, the condition and attitude of each aggravating the condition and attitude of...