Herbert v. Herbert, 19560

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOSS; The case came on for trial before the Honorable J. Bruce Foster
• Citation: 194 S.E.2d 238,260 S.C. 86
• Parties: Theodore W. HERBERT, Appellant, v. Elizabeth Rogers HERBERT, Respondent.
• Docket Number: No. 19560,19560
• Decision Date: 29 January 1973

Page 238

194 S.E.2d 238

260 S.C. 86

Theodore W. HERBERT, Appellant, v. Elizabeth Rogers HERBERT, Respondent.

No. 19560.

Supreme Court of South Carolina.

Jan. 29, 1973.

Moseley & Robertson, Greenville, for appellant.

Odom, Nolen, Terry & Abernathy, Spartanburg, for respondent.

MOSS, Chief Justice:

Theodore W. Herbert, the appellant herein, brought this action for a divorce A vinculo matrimonii from his wife, Elizabeth Rogers Herbert, the respondent herein, on the ground of habitual drunkenness; Section 20--101(4) of the Code. He also alleges that several children were born of the marriage, all of whom are emancipated except the minor son, Theodore W. Herbert, Jr., age fifteen. He alleges that this minor son should be allowed to choose the parent with whom he wishes to live.

The respondent, by her answer and counterclaim, denied that she was a habitual drunkard and sought separate maintenance and alimony, together with attorney's fees for her counsel. She also prayed that the court award her the use of the household furnishings and the possession of a certain automobile.

The case came on for trial before the Honorable J. Bruce Foster, Judge of the Spartanburg County Court, at which time the respondent withdrew so much of her answer as denied that she was a habitual drunkard and decided to seek only alimony and attorney's fees. During the course of the hearing, it was also agreed that the minor son might elect the parent with whom he desired to live and he chose his father.

After taking the testimony, the trial judge issued his order granting the appellant a divorce A vinculo matrimonii from the respondent on the ground that the respondent was habitually addicted to the use of alcoholic beverages and had been for a substantial period of time; and that she had resided in a home and in a social atmosphere where the use of alcoholic beverages had been both condoned and encouraged. He further found that the conduct of the respondent with regard to the excessive use of alcohol had developed over the years and such addiction should not be used as a basis for determining real moral wrongdoing or fault, although such conduct had been a contributing factor to the difficulties encountered between the parties hereto. Under these circumstances, the trial judge was of opinion that the husband should contribute to the support of his wife. He provided that the appellant pay alimony and attorney's fees in the amount of $75.00 per week with disbursal for twenty weeks of $15.00 thereof as attorney's fees and thereafter the full amount to be paid to the respondent as permanent alimony. The trial judge awarded certain household furnishings to the respondent. He also awarded her a 1968 Ford automobile subject to a mortgage indebtedness thereon which would become her obligation.

It is the position of the husband that the trial judge committed error and abused his discretion in awarding alimony and attorney's fees to the wife where the evidence is conclusive that she was a habitual drunkard and he was granted a divorce on such ground.

The husband contends that the wife should be denied alimony and attorney's fees because she was guilty of habitual drunkenness which constitutes substantial fault or misconduct materially contributing to the disruption of the marital relationship. Reliance for this position is had under the authority of Miller v. Miller, 225 S.C. 274, 82 S.E.2d 119; Brown v. Brown, 239 S.C. 444, 123 S.E.2d 772; and Nelson on Divorce 2nd Ed., Vol. 3, Section 32.21. The aforesaid rule was also recognized by this Court in Welch v. Welch, 250 S.C. 264, 157 S.E.2d 249; and Skinner v. Skinner, 257 S.C. 544, 186 S.E.2d 523.

Under Section 20--113 of the Code, it is provided that:

'In every judgment of divorce from the bonds of matrimony in a suit by the wife the court shall make such orders touching the maintenance, alimony and suit money of the wife or any allowance to be made to her and, if any, the security, to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just. But no alimony shall be granted to the adulterous wife.'

As is heretofore stated, the appellant contends that the trial judge was without power to grant alimony and attorney's fees when the divorce was occasioned by the fault and misconduct of the wife. This is true in cases of adultery but in all other cases, the matter is one in the discretion of the trial judge.

In the Florida case of Cowan v. Cowan, 147 Fla. 473, 2 So.2d 869, the husband brought an action for divorce alleging habitual intemperance on the part of the wife. Th wife filed a cross-bill denying the allegation as to intemperance and demanded permanent alimony. The Chancellor granted the husband a divorce on the ground stated but allowed the wife permanent alimony. The husband appealed. The statute of Florida governing the granting of permanent alimony when a decree of divorce is granted is identical with our statute, Section 20--113. The Supreme Court of Florida, in affirming the lower court in the cited cases, said:

'Appellant contends that the Chancellor was without power to grant alimony when the divorce was occasioned...