Lucas v. Lucas, 21919
| Decision Date | 09 May 1983 |
| Docket Number | No. 21919,21919 |
| Citation | 302 S.E.2d 863,279 S.C. 121 |
| Court | South Carolina Supreme Court |
| Parties | Patricia Moore LUCAS, Appellant, v. Ernest Wendell LUCAS, Respondent. |
Brooks P. Goldsmith, of Thomas, Rushing, Goldsmith & Folks, Lancaster, for appellant.
Paul E. Short, Jr., of Strickland, Short & Keels, Chester, for respondent.
In this action, commenced in February, 1980, the Plaintiff-Appellant (Wife), sought (1) a divorce on the ground of physical cruelty, (2) alimony, (3) custody, (4) child support, (5) attorney fees, and (6) an equitable interest in certain real and personal property of the Defendant-Respondent (Husband). The Husband conceded the issue of custody, but contested the other issues and pled as a defense that the Wife's claims to alimony and property division were barred by virtue of a separation and property settlement agreement signed by the parties at the time of their separation approximately one year prior to the trial of the case on its merits.
The Wife and Husband were married in 1962. She worked a substantial portion of their married life, which ended in 1979. About the time of their marriage, the Husband acquired a house and lot for some $1,200. Over the years, the Wife worked a sufficient period of time, to earn approximately $53,000. The couple shared expenses and spent approximately $20,000 improving the house which was their marital home. It was her testimony that they would take their respective paychecks each week, pay all current bills jointly, and then each keep what was left of his or her check. In addition, she attended to the family chores normally incident to housekeeping and homemaking. There can be no doubt but that her contributions to the marital properties was substantial over and above normal wifely duties in the home.
During the trial, the judge indicated prematurely that he would refuse the divorce on the ground of physical cruelty, whereupon the complaint was amended on Wife's motion to request alternatively a divorce on the ground of one year's separation. A divorce was granted the Wife, based on the amended pleadings. The judge granted her custody of the thirteen year-old son of the marriage and awarded her thirty dollars per week child support. The Wife's claim for alimony, equitable interest in the marital properties and attorney fees was denied.
The Wife has appealed alleging error on the part of the trial judge in refusing to grant a divorce on the ground of physical cruelty. She further alleges that the trial judge erred in holding the agreement "fair and equitable" and in refusing to grant her an equitable interest in the marital property, alimony and attorney fees.
It is obvious that the trial court's basis for denying alimony and equitable distribution of property was the separation and property agreement which the judge held to be fair and equitable.
Inasmuch as the Husband did not testify nor present witnesses to the court, it is difficult to fathom the reason for denying the divorce on the ground of physical cruelty, but inasmuch as the judge viewed the witnesses of the Wife and was the judge of their credibility, we will not reverse his holding in refusing a divorce on the ground of physical cruelty while granting the same on the ground of one year's separation. The judge is allowed a discretion, and on this particular point we will not hold that his discretion was abused.
We now reach the question of what effect the separation agreement has on the issues before the Court and whether the judge properly ruled that the settlement was fair and equitable. The Wife did not have an attorney and the lawyer who drew the agreement was selected by the Husband. It was signed two days after the separation. She testified relative to her emotional situation:
Well, I had real bad nerves and was upset at that time. The house wasn't in my name anyway, and I had to have a way back and forth, so I just settled for the car, and then my son came to live with me, and now we don't have...
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