Johnson v. Johnson

• Decision Date: 03 September 1968
• Docket Number: No. 18822,18822
• Citation: 251 S.C. 420,163 S.E.2d 229
• Parties: Richard W. JOHNSON, Appellant, v. Barbara B. JOHNSON, Respondent.
• Court: South Carolina Supreme Court

Page 229

163 S.E.2d 229

251 S.C. 420

Richard W. JOHNSON, Appellant, v. Barbara B. JOHNSON, Respondent.

No. 18822.

Supreme Court of South Carolina.

Sept. 3, 1968.

Abrams, Bowen & Townes, Greenville, for appellant.

G. M. Ashmore, H. F. Partee, Greenville, for respondent.

LITTLEJOHN, Justice.

This action was commenced by Richard W. Johnson as plaintiff, hereinafter called the husband, against Barbara B. Johnson as defendant, hereinafter called the wife, for a divorce on the ground of adultery. The complaint also asked for custody of the two boys of the parties, they being ages four and eight at the time the complaint was served on January 4, 1966.

The answer of the wife asked that the complaint be dismissed, and that a legal separation from bed and board be ordered, and that custody of the two boys be granted her, together with support money for them, and attorney's fees, be directed. The answer and counterclaim did not ask for alimony or support money for the wife herself.

The reply of the husband amounted to a general denial of the counterclaim and again prayed for the relief sought in the complaint.

The action was instituted in the Juvenile and Domestic Relations Court of Greenville County, which court has full jurisdiction to try issues and grant decrees in divorce and child custody litigation. That court held hearings on March 2, 1966 and on September 13, 1966, and thereafter entered its decree dated July 14, 1967, granting a divorce to the husband on the ground of adultery, and granting to the husband custody of the two boys. The court found factually that 'the minor children of the parties and their welfare would be best served by placing them in the custody of the father, Richard W. Johnson.' The court further held that the wife had failed to carry the burden of proof on her answer and counterclaim. Visitation rights were granted to the mother.

The wife appealed to the Court of Common Pleas for Greenville County, challenging the correctness of the Juvenile and Domestic Relations Court in granting the divorce to the husband on the ground of adultery, and in granting custody of the two boys to him.

The appeal was heard by the circuit judge on November 21, 1967 and resulted in his order dated December 18, 1967, affirming the trial court in granting the divorce on the ground of adultery, but reversing the trial court insofar as it granted custody of the two boys to the father. The order of the circuit judge went further and decreed visitation rights for the father and directed that $150 per month be paid by him to the mother for the support of the two minor children.

The husband has appealed to this court from that part of the circuit court order which reversed the Juvenile and Domestic Relations Court and granted to the wife custody of thw two boys. The wife has not appealed, and accordingly, the directive of the circuit court and of the Juvenile and Domestic Relations Court granting a divorce on the ground of adultery is the law of the case. We therefore concern ourselves with only the custody issue in this appeals proceeding.

There are many exceptions, interposed in the record, framing as set forth in appellant's brief, four basic questions; however, we think there is only one real question for this court to determine: Did the circuit court, sitting as an appeals court only, err in reversing the trial judge, thereby granting the custody of the two boys to the wife and granting to her support money for them?

Since the issues before the circuit judge on appeal, and since the issues now before this court on appeal involve an evaluation of the evidence, it is necessary to summarize the part relevant to the custody issue.

In reciting the evidence and in evaluating the same we do so in the light of our holding in the case of Porter v. Porter, 246 S.C. 332, 143 S.E.2d 619, which case also involved the Juvenile and Domestic Relations Court of Greenville County as the trial court, and the Court of Common Pleas for Greenville County sitting as an appellate court. We held therein that the Court of Common Pleas had appellate jurisdiction only, was not the trier of the facts, and that authority to modify an order comtinued exclusively in the trial court. The rule set forth in that case to the effect that 'his (the trial judge) findings will not be disturbed unless it appears that such are without evidentiary support or against the clear preponderance of the evidence' is applicable in this case.

The husband and wife were married in 1954. They resided at the time of their separation in a middle-income residential area of Greenville without serious difficulties until about three or four years prior to the trial. Apparently about three or four years prior to their agreed separation in August 1965 the relationship became more and more strained.

The husband is a graduate of North Carolina State College and is an engineer with an admitted income of $850 gross per month. He has worked for several years as an engineer for the father of his wife, who owns and operates The Precision Machine Works in Greenville. The wife is college trained also, and is an accomplished musician and teacher of piano and organ.

She became acquainted with Frank Brasington, with whom she is charged with adultery, about three or four years prior to the trial when she taught one of his children piano at her home. The wife admits that her marital troubles got worse after she met him. He is forty-nine years of age, and has four children, two by his first wife, ages eighteen and twenty-three, and two by his second wife, ages fourteen and seventeen (these two live in Greenville). He is twice divorced and resides alone in an apartment in Greenville.

In April 1965 the wife accepted employment with Frank Brasington who operates the Case Piano Company. In her employment she taught piano and organ and performed secretarial work at the piano company store. It is evident from the testimony that between April and August the family relationship of the husband and the wife deteriorated such that on August 26, 1965 a separation agreement was entered into, under the terms of which the wife and children were to continue to live at the homeplace and receive $100 per month for the support of the children only. The husband further agreed to pay medical bills and to provide the wife with the use of a car and to continue making payments on the home mortgage. It is of some significance that this agreement was made approximately one month after Brasington's divorce from this second wife was finalized. A portion of the separation agreement reads as follows:

'From and after the execution of this agreement the parties hereto shall have the privilege of having such friend or friends as he or she may desire without the right on the part of the other party to object thereto. However, the said Richard W. Johnson in the execution of this agreement does so with the reservation that he still loves the said Barbara B. Johnson.

'It is understood and agreed that from and after the execution of this agreement that neither of the parties hereto shall in any way interfere with the business or social activities of the other party.'

It is the testimony of the husband that he did not know at the time the agreement was made of any improper relationship between his wife and Brasington. He now asserts a change of conditions, and submits that the custody of the boys should be granted to him because of her conduct since the agreement was signed. Within less than a month after the agreement the husband had heard of objectionable associations between his wife and Brasington and approached him about the same, but such impropriety was denied.

Thereafter, the husband employed certain persons to observe his wife's conduct on occasions and by reason of that which they saw he commenced this action and charged the wife with adultery on December 18, 1965 with Frank Brasington. Inasmuch as the divorce aspect of this case was not appealed by the wife and is no longer in contest it is not necessary to review the evidence relative to the adulterous act. It is the law of the case.

It is academic that the interest of the children is the paramount issue. Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764. We concentrate, therefore, on that evidence which bears on this point.

When a marriage comes to an unfortunate end, as here, the court must look to all of the evidence and to the totality of the circumstances of the parents in making a determination as to which parent can best provide for the welfare of the children. Each parent, by reason of the...