Levin v. Levin

• Decision Date: 29 February 1904
• Citation: 46 S.E. 945,68 S.C. 123
• Parties: LEVIN. v. LEVIN.
• Court: South Carolina Supreme Court

46 S.E. 945

68 S.C. 123

LEVIN.

v.LEVIN.

Supreme Court of South Carolina.

Feb. 29, 1904.

action FOR ALIMONY—when maintainable —CRUELTY—CONDONATION.

1. Alimony should he allowed on desertion of the wife by the husband without just cause, or where he inflicts upon his wife, or threatens her with, personal injury, or he indulges in such practices as outrage all the sentiments characteristic of the sex.

¶ 1. See Husband and Wife, vol. 26, Cent Dig. §§ 1063, 1064.

2. Evidence in action for alimony reviewed, and held that the husband's cruelty justified his wife in separating from him.

3. Cruelties of the husband which have been forgiven may be considered when others have followed until the wrong becomes unbearable.

4. Where the complete alienation between husband and wife has come almost entirely from the gross misconduct of the husband, he will not be exempted from the support of his penniless wife and dependent children.

Appeal from Common Pleas Circuit Court of Charleston •County; Purdy, Judge.

Action by Dora Levin against Hyman Levin. Judgment for defendant Plaintiff appeals. Reversed.

Bryan & Bryan, for appellant.

Mordecai & Gadsden, for respondent.

WOODS, J. Hyman Levin and Dora Friedman were married on October 15, 1899. After a short bridal trip, they lived together at the home of the wife's father in New York until November 1, 1899. Levin then returned to his home in Charleston. Mrs. Levin did not accompany him, but continued to live with her father, and has continuously refused to go to her husband's home and assume the position of a wife. She commenced this action for alimony on October 26, 1901, alleging, under a number of specifications, cruel and inhuman treatment, sufficient, as she insists, to justify her. in refusing to cohabit with her husband and in demanding separate support. The defendant denies the charges, and undertakes to lay the blame of separation entirely on his wife and her parents. The cause was referred to G. H. Sass, Esq., master, and his report finding against the plaintiff has been reviewed and confirmed by the circuit judge.

The findings of fact in the report and the decree are of great value, not only on account of the sources from which they come, but because of the earnest consideration manifestly given to the cause. A careful study of the evidence leads to the conviction that these findings as to the essential issues are, in the main, correct. The chief question for discussion is as to the correctness of the legal conclusions drawn by the master and the circuit judge from the facts.

The grounds upon which alimony should be allowed are thus stated in Wise v. Wise, 60 S. C. 447, 38 S. E. 802, after a review of thedecisions in this state: "(1) Desertion of the wife by the husband, without just cause. * * * (2) Where the husband inflicts upon his wife, or threatens her with, bodily injury, amounting to the sævitia of the civil law, which is defined 'to be personal violence actually inflicted or menaced, and affecting life or health.' (3) Where the husband practices such obscene and revolting indecencies in the family circle, and so outrages all the sentiments of delicacy and refinement characteristic of the sex that a modest and pure-minded woman would find these grievances more dreadful and intolerable than the most cruel inflictions upon her person." It should not be supposed that a separate support must be denied to the wife under the second proposition, because the personal violence on account of which it is claimed does not actually imperil her life or health. It is sufficient if it tends to do so. Great and continued physical indignities—such, for example, as chastisement or imprisonment—might possibly not endanger life or health, but certainly a wife is not called upon to endure them. It should also be said in this connection that the time has passed when assent can be given to the statement made in Hair v. Hair, 10 Rich. Eq. 173: "No words of reproach and insult amount to legal cruelty; no affront and indignity, no torture of the feelings and sensibilities, however severe and grievous to be borne, unaccompanied by bodily injury or a well-grounded apprehension of such, will authorize the wife to leave the bed and board of her husband, and to claim thereupon from this court a decree for alimony." At the same time we fully accept the language used in Evans v. Evans, 1 Hagg. Rep. 39, quoted with approval in Rhame v. Rhame, 1 McCord, Eq. 200, 16 Am. Dec. 597: "What merely wounds the mental feelings is, in few cases, to be admitted, where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion (if they do not threaten bodily harm), do not amount to legal cruelty." One of these few cases arises when a husband habitually uses to his wife abusive language, which she cannot endure without a complete surrender of self-respect, or strikes at the vital point of female character by making and maintaining the charge of unchastity. The husband's right of dominion and the wife's duty to live with him and obey him cease to exist when the husband ceases to support them by at least decent respect and consideration. The general view of the law above stated will, no doubt, receive ready assent; but the delicacy of the subject makes the application of principles to the facts of each case the real judicial task.

While each case that has arisen in this state differs widely as to its facts from every other, a review of the cases leads to the conclusion that the decision of this case should depend upon the following questions: (1) Has the defendant inflicted on the plaintiff such physical violence or personal indignity as would make her residence with him as a wife intolerable? (2) Has the wife deserted her husband, or so contributed to the alienation that the law will deny her separate support? (3) Has the wife so condoned the alleged wrongs that her claim must fail? (4) Does the defendant's invitation to the plaintiff to come to his home as his wife discharge him of any liability he may have incurred for her separate support? It may be well to remark before beginning the discussion of these questions, that we attach slight importance, except as a mere sidelight, to the fact that the acquaintance of these parties was brought about by Levin and the parents of Mrs. Levin through the intervention of a matchmaker, and the marriage itself based more on convenience than sentiment. The court in a case of this kind has little to do with the finer sentiments and emotions of conjugal life, and must concern itself with the right of the wife to be protected from cruelty and indecency.

A number of charges are made against Levin. The first accusation—that he was very drunk on his wedding night—is clearly proved, and it cannot be doubted that this misconduct brought to his bride great mortification and disgust. Some excuse is to be allowed in the fact that he had been fasting for a day under the Jewish law, and did not take proper account of the effect of wine on an empty stomach. If the occasion had been an ordinary one, the drunkenness would, no doubt, be excused by all the charitable as accidental; but it is not easy to see how the instinct of ordinary self-respect could have been so off guard on his wedding night This offense, however, was forgiven, and no doubt its effect on the wife's feelings would have been obliterated if the impression of lack of sensibility had not been deepened by subsequent misconduct Levin's explanation of registering with his wife at the St. Dennis Hotel under an assumed name is sufficient to make the impropriety of...