Hodges v. Hodges
| Decision Date | 10 December 1963 |
| Docket Number | No. 18136,18136 |
| Citation | 243 S.C. 299,133 S.E.2d 816 |
| Court | South Carolina Supreme Court |
| Parties | Mamie HODGES, Respondent, v. Harold HODGES, Appellant. |
Nicholson & Nicholson, Greenwood, for appellant.
Beasley & Beasley, Greenwood, for respondent.
This case is one of domestic discord in which the wife, respondent here, sued the appellant husband for divorce on the grounds of habitual drunkenness and physical cruelty and, in connection therewith, sought to recover alimony, costs, attorneys fees and a property settlement, including the declaration of a resulting trust as to a one-half interest in the home in which the parties lived prior to the separation, title to said home being in the husband.
The cause was referred to the Master of Greenwood County who, after taking rather voluminous testimony, concluded that the wife had failed to prove her case under the applicable law, and recommended that relief be denied to the wife, except the costs of the action; the payment by the husband to the wife of the sum of three hundred dollars in lieu of a partition of household personal property still in the possession of the husband, and that the equipment and supplies used in the operation of a beauty parlor by the wife be decreed her sole and separate property.
Upon exceptions by the wife to the report of the master, the circuit court arrived at conclusions different from those of the master; decreed that a divorce a vinculo matrimonii be awarded to the wife on the grounds of habitual drunkenness and physical cruelty; that she be adjudged the owner of a one-half undivided interest in the residence standing in the name of the husband, subject to any indebtedness existing thereon at the time of the separation of the parties, and that the wife be entitled to a partition thereof. The cause is now before us, upon exceptions by the appellant husband, challenging the rulings of the circuit judge in the foregoing particulars.
The parties hereto were married in the year 1952, both of them at that time being in their early thirties. The husband was a bachelor and the wife was a divorcee with three minor children. Both parties were gainfully employed at the time and both continued to work until they separated on November 21, 1961, although there was some change in the occupation and some interruption of the wife's employment as a result of disability on her part.
It is conceded and thoroughly established that the husband here was an excellent father to the children of the wife who lived with the parties after the marriage. At the time of the separation the older son and a daughter had both married and were living out of the home, but were still in the Greenwood area where they had the opportunity to see the parties fairly frequently. The younger son, aged twenty at the time of separation, was mentally retarded as the result of a brain injury, and was still living in the home.
The real property in question was acquired in May, 1955, the husband paying therefor the sum of five thousand dollars. He borrowed one thousand dollars from his brother with which to make the down payment and gave a first mortgage in the amount of four thousand dollars for the remainder, the wife renouncing dower on all necessary documents. The wife was injured in the course of her employment in 1957, and for about a year drew Workmen's Compensation benefits, following which she received a lump sum settlement in the approximate amount of twenty-five hundred dollars. Thereafter, being disabled to continue her former employment, she spent some six months being trained as a beautician and, about June 1960, opened a beauty parlor in a room built onto the home occupied by the parties. The mortgage of the husband on the property was increased by sixteen hundred dollars to accomplish the construction, the wife again renouncing dower on the new mortgage.
According to the testimony of the wife, a brother of the husband whom the wife regarded as being a bad influence on the husband, returned from military service to the Greenwood area sometime near the commencement of the beauty parlor venture.
None of the foregoing facts are in any substantial dispute and we shall proceed to consider the matters which are in dispute.
Since the master and the circuit judge disagreed as to whether the wife had proved the gravamen of her complaint, we shall determine the question according to our own view of the evidence. In doing so, proper consideration must be given to the fact that the master saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observation of and contact with the parties and witnesses which may be of peculiar value in arriving at a correct result in a case of this character. See Sherbert v. Sherbert, 237 S.C. 449, 117 S.E.2d 715, and cases therein cited.
With reference to the habitual drunkenness and physical cruelty with which the husband is charged, the wife herself testified that the husband's drinking started 'just about a year and a half ago, after his brother came out from the service.' As the reference was held on May 8, 1962, this would have made the alleged drinking, of which she complained, mark its commencement from possibly November or December 1960. She proceeded to testify in generalities as to his excessive drinking and physical cruelty, which latter she testified started some four or five months before she left him, but offered testimony as to only two specific instances of drunkenness during the last year of cohabitation and one specific instance of alleged physical cruelty. She and her witnesses offered evidence of some two or three instances of intoxication on the part of the husband which occurred in the course of the marriage some several years before the difficulty between the parties commenced, which instances were clearly too isolated and too remote to have any substantial bearing.
The wife admits, that, with the exception of one occasion, she made no complaint to any one about the alleged ill-usage and drunkenness of the husband, This particular occasion was some five or six weeks prior to the separation of the parties and the accounts of husband and wife as to what happened on that occasion are at wide variance. The wife contends that the husband hit her while drinking and threatened to kill her, while the husband contends that he only shoved his wife away from him in the course of an argument. In any event, she does not seem to have been injured. She, however, called her married son and law officers to the scene, the law officers not being called as witnesses by the wife. The married son came, engaged in a scuffle with the husband, hit him, subdued him and put him to bed, and, on the following morning, apologized to him for having hit him and, in effect, told the husband that he considered the ruckus to be just as much his mother's fault as it was the husband's fault. This son did testify that in the course of his scuffle with the husband, the husband threatened to use a knife, which, however, was not drawn or even seen, and that the husband did, apparently from the floor, hit the wife. He did not contend that his mother was injured in any way, and much of his testimony was favorable to the husband, with whom he still maintains friendly relations.
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