Lee v. Lee, 17738

Decision Date24 January 1961
Docket NumberNo. 17738,17738
Citation237 S.C. 532,118 S.E.2d 171
PartiesHenry Lyndal LEE, Jr., Respondent, v. Jacqueline S. LEE, Appellant.
CourtSouth Carolina Supreme Court

George W. Keels, Florence, for appellant.

James P. Mozingo, III, Benny R. Greer, Archie L. Chandler, Darlington, for respondent.

MOSS, Justice.

Henry Lyndal Lee, Jr., the respondent herein, brought this action against Jacqueline S. Lee, the appellant herein, for a divorce upon the ground of adultery. Section 20-101(1), 1952 Code of Laws of South Carolina. The appellant answered and denied the allegation of the complaint that she was guilty of adultery, and asserted affirmatively that the respondent was guilty of adultery, and such barred him from obtaining the divorce decree.

The cause was heard by the Honorable Malcolm K. Johnson, Judge of the Civil Court of Darlington County, without a reference. After the trial Judge had heard the evidence, he entered a decree holding that the appellant was guilty of adultery and that the respondent was entitled to a divorce on such ground. He awarded custody of one child to the respondent and the other two children to the appellant, and provided that the respondent should pay to the appellant for the support and maintenance of the two minor children, the sum of $80 per month and in addition thereto the sum of $250 on September 1, and a like sum on December 15 of each year, or a total of $1,460 per year. He also granted visitation rights to the parties. From this decree the wife has appealed, claiming that the charge of adultery was not established by a preponderance of the evidence. She further asserts that the award of support money for the children was totally inadequate to maintain them.

The respondent and the appellant were married on September 6, 1947, and three children were born of the marriage. The parties separated on December 13, 1959, and have not since lived together. The respondent is employed as a game warden and is paid an annual salary of $2,760. In addition thereto, he farms with his mother and has a net income of approximately $2,000, making a total yearly income of $4,760. The appellant is employed at the Hartsville Manufacturing Company and receives, after all deductions, approxmiately $44 per week for her services, or $2,288 per year. The respondent owns the house in which the parties formerly lived and he is making monthly payments on an indebtedness of $19,000 thereon. It further appears that the respondent, in addition to the amount required to be paid by the trial Judge, also paid for medical attention to one of the children in the custody of the appellant.

This action is one in equity. Section 20-105 of the 1952 Code. Our duty in equity cases to review challenged findings of fact does not require that we disregard the findings below or that we ignore the fact that the trial judge, who saw and heard the witnesses, was in better position than we are to evaluate their credibility; nor does it relieve the appellant of the burden of convincing this Court that the trial Judge erred in his findings of fact. Inabinet v. Inabinet, 236 S.C. 52, 113 S.E.2d 66. In the instant case, the trial Judge saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character. Evatt v. Campbell, 234 S.C. 1, 106 S.E.2d 447, and Meyerson v. Malinow, 231 S.C. 14, 97 S.E.2d 88, 65 A.L.R.2d 194.

In the case of Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330, 335, 15 A.L.R.2d 163, it was said:

'The proof of adultery as a ground for divorce must be clear and positive, and the infidelity must be established by a clear preponderance of the evidence. The proof must be sufficiently definite to identify the time and place of the offense, and the circumstances under which it was committed. It is not necessary that the fact of adultery be proved by direct evidence, but, as stated infra § 139b, it may be sufficiently proved by indirect or circumstantial evidence, or it may be proved by evidence consisting in part of both. However, if after due consideration of all the evidence the proof of guilty is inconclusive, a divorce will be denied * * *.' 27 C.J.S. Divorce, § 139a.'

The evidence offered by the respondent to establish the charge of adultery against the appellant was given by one Dwight Yarborough. The testified that he had been a game warden for twenty-five years; that he was personally acquainted with the respondent and the appellant, and also one Blane McNeese, the alleged paramour of the appellant. This witness testified that on May 18, 1957, between 10:00 and 12:00 o'clock a. m., that he had gone to a wooded area four or five miles South of Florence for the purpose of banding doves, which was a part of his job. He further testified that in going to this wooded area he saw the appellant and one Blane McNeese having sexual intercourse in such area. He further testified that after this act of coition these parties removed themselves from the compromising position and the witness observed the paramour of the appellant adjusting his pants. This witness further testified that when he had finished his work and was returning to Florence, he observed the appellant and Blane McNeese driving towards Florence in her car. He testified that he informed the respondent of the conduct of the appellant and one Blane McNeese on December 16, 1959, after the husband and wife had separated.

The respondent had no actual knowledge of any act of adultery committed by the appellant. However, he did testify that his wife was never at home when she should be and that she was out all the time at night when she was off from work. He further said that while he was working at a booth at the Florence County Fair he observed his wife and another woman attending the fair with Blane McNeese.

Blane McNeese testified in behalf of the appellant and denied having sexual relations with her. However, he admitted that he had known the appellant for twelve years and lived within four blocks of the residence of the parties to this action. He says that after the separation of the respondent and appellant 'I admitted to him that I had been off with her.' He explained that he meant by this admission that on two occasions the appellant had taken him to work and on another occasion had brought him back home from work. This witness was also asked on cross-examination if he had been guilty of adultery with the appellant, would he admit it? In response to this question, he said, 'I think it would be a mighty sorry man that would, don't you?' He was further asked...

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24 cases
  • Brown v. Malloy
    • United States
    • South Carolina Court of Appeals
    • April 30, 2001
    ...contact with the parties which is of peculiar value in arriving at a correct result in a case of this character." Lee v. Lee, 237 S.C. 532, 535, 118 S.E.2d 171, 172-73 (1961). Therefore, we defer to the family court's determination of credibility and conclude that evidence in the record amp......
  • Porter v. Porter
    • United States
    • South Carolina Supreme Court
    • August 5, 1965
    ...upon proper showing of a change of condition, the alimony and support payments provided for in a judgment of divorce. Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171; Taylor v. Taylor, 241 S.C. 462, 128 S.E.2d It appears from the order of the Circuit Judge that he attempted to reserve jurisdiction......
  • Hickman v. Hickman
    • United States
    • South Carolina Court of Appeals
    • January 25, 1988
    ...amount of child support, the court should consider the totality of the pertinent circumstances surrounding the case. See Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171 (1961) (the court should consider all the circumstances of the case in fixing the amount of child Mr. Hickman argues that the tri......
  • Peebles v. Disher, 0029
    • United States
    • South Carolina Court of Appeals
    • December 28, 1983
    ...and this obligation continues after a divorce. McLeod v. Sandy Island Corp., 265 S.C. 1, 216 S.E.2d 746 (1975); Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171 (1961); Campbell v. Campbell, 200 S.C. 67, 20 S.E.2d 237 (1942). No agreement can prejudice the rights of children. Johnson v. Johnson, 25......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter Four Divorce
    • United States
    • Marital Litigation in South Carolina (SCBar)
    • Invalid date
    ...evidence which convinces as to its truth. A preponderance of the evidence is not made out by the greater number of witnesses." Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171 (1961) (affirming a divorce given to the husband based solely on the testimony of a game warden who said he saw the wife an......

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