Lee v. Lee, 17738

• Court: United States State Supreme Court of South Carolina
• Citation: 237 S.C. 532,118 S.E.2d 171
• Docket Number: No. 17738,17738
• Parties: Henry Lyndal LEE, Jr., Respondent, v. Jacqueline S. LEE, Appellant.
• Decision Date: 24 January 1961

Page 171

118 S.E.2d 171 237 S.C. 532 Henry Lyndal LEE, Jr., Respondent,
v.
Jacqueline S. LEE, Appellant. No. 17738. Supreme Court of South Carolina. Jan. 24, 1961.

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[237 S.C. 533] 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, [237 S.C. 534] 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[237 S.C. 535] 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

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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...