Machado v. Machado

• Decision Date: 06 August 1951
• Docket Number: No. 16528,16528
• Citation: 66 S.E.2d 629,220 S.C. 90
• Court: South Carolina Supreme Court
• Parties: MACHADO v. MACHADO.

Page 629

66 S.E.2d 629

220 S.C. 90

MACHADO v. MACHADO.

No. 16528.

Supreme Court of South Carolina.

Aug. 6, 1951.

Rehearing Denied Aug. 31, 1951.

Fred D. Townsend, Columbia, for appellant.

H. H. Edens, Columbia, Murchison & West, Camden, for respondent.

OXNER, Justice.

This is an appeal by the husband from a decree granting his wife a divorce a vinculo matrimonii on the ground of 'constructive' desertion, together with alimony and counsel fees, and awarding her the custody of their two minor children.

The action was commenced by the husband on April 21, 1949. In the original complaint he sought a divorce on the ground of desertion and asked for the custody of the children. Thereafter the complaint was amended by adding adultery, habitual drunkenness and physical cruelty as grounds for the relief sought. The wife denied all of these charges and interposed a counterclaim in the nature of a cross-action, wherein she sought a divorce upon the ground of constructive desertion and asked that she be given custody of the children. In due course the husband filed a reply denying the material allegations of the counterclaim.

The case was referred to a special referee who, after taking a vast amount of testimony, recommended that the relief sought by the husband be denied; that the wife be granted a divorce upon the ground of constructive desertion; that the husband be required to pay to his wife the lump sum of $2000 as permanent alimony and to her attorneys the sum of $1500 for their services; that the wife be granted the custody of the two minor children, except for two months each summer during which period they should be permitted to visit their father; and that the husband be required to pay the sum of $100 each month for the maintenance and support of said children. On exceptions by the husband to the report of the special referee, the case was heard by the resident Judge of the Fifth Circuit, who confirmed the report of the special referee in all particulars except as to the amount of alimony which was raised from $2000 to $2400. The husband has not appealed from the dismissal of his complaint. His exceptions relate solely to the affirmative relief granted his wife.

The divorce statute, Act No. 137 of the 1949 Acts of the General Assembly 46 St. at L. 216, expressly provides that an action for divorce shall be in the equity jurisdiction of the court. Accordingly, the evidence must be considered in the light of the well settled rule that in an equity case findings of fact by a master or a referee, concurred in by a circuit judge, will not be disturbed by this Court unless it appears that such findings are without evidentiary support or are against the clear preponderance of the evidence. It would serve no useful purpose to undertake a detailed review of the voluminous testimony in the record before us. As usual in cases of this kind, it is filled with charges and countercharges, some of which are unduly magnified.

The following facts, found by the Referee and Circuit Judge, are amply sustained by the evidence:

Appellant and respondent were secretly married at Plymouth, Massachusetts, on September 11, 1937. They first resided at Cape Cod but soon returned to Camden, South Carolina, where appellant was engaged in business at the time of his marriage. They lived together at Camden until 1947, when they separated. Two children, both boys, were born to this union, one in 1941 and the other in 1943. Discord developed immediately after the marriage. For some unexplained reason, appellant insisted that it be kept secret while respondent was anxious that it be announced. His wishes prevailed and his family was not advised of his marriage until respondent became pregnant with her first child. Soon after the marriage, appellant, actuated by unfounded suspicion and unreasonable jealousy, accused his wife of indiscreetness in associating with other men. When she became pregnant with the first child, he denied his paternity. His attitude toward his wife during this period was very inconsiderate. However, when this child was born, the resemblance to appellant was so striking that his suspicion of his wife's unchastity was wholly dissipated. During the entire period of approximately ten years that the parties lived together, appellant from time to time accused his wife of adultery, and on several occasions publicly. This charge was again repeated when he instituted this suit for divorce. On the trial of the case he named four or five men with whom he says he was convinced that his wife had sexual relations. Both the Master and the Circuit Judge found that these charges of unchastity were without any foundation and there is abundant evidence to sustain that conclusion.

While respondent was pregnant with the first child, appellant carried on extensive correspondence with a woman in Florida and visited her there for four or five days during 1940 or 1941. There is some dispute as to the purpose of this visit. While there is no proof of adultery growing out of this association, the circumstances are somewhat suspicious. Shortly thereafter appellant seems to have become rather attached to his secretary, who was sixteen years younger than he. She accompanied him to numerous conventions. Their conduct in Camden on various occasions was very indiscreet. Respondent testified that on at least one occasion appellant stated to his secretary in her presence that he loved her more than he did respondent. She complained bitterly of this association and admonished appellant time and again that he would have to make a choice between her and his secretary. Several times respondent assaulted this woman but no serious physical injuries resulted from these encounters. In an effort to remove the source of dissension, appellant, a Catholic, after consultation with his priest, discharged his secretary but soon reemployed her. He has steadfastly maintained that he never had any improper relations with her and there is no satisfactory proof that he did, but the association was a constant source of humiliation and embarrassment to respondent and appears to have been the principal factor in precipitating the final separation of the parties in 1947. We might interpolate here that sometime prior to this separation, a young man at Camden commenced courting appellant's secretary and subsequently married her.

In addition to the foregoing misconduct on the part of appellant, his wife asserts that he frequently threatened to kill her, forced her to leave home on several occasions in the middle of the night, and failed to provide her with adequate medical attention and food. The Referee and Circuit Judge concluded that these charges were sustained by the evidence. We deem it unnecessary to determine the soundness of these conclusions. However, we desire to say that the alleged threats were of a general nature and hardly calculated to cause fear of immediate bodily harm, and that the charge that appellant did not properly provide for her does not have strong evidentiary support.

On June 6, 1947, appellant and respondent entered into a separation agreement under the terms of which they agreed to live separate and apart; the two boys were to be placed in a Catholic boarding school at the expense of appellant; appellant agreed to pay the cost of a course in beauty culture to be taken by respondent in New York City for the purpose of providing her with a means of livelihood; and respondent agreed to forever release and discharge appellant from all obligations growing out of the marriage relation.

As a result of the foregoing agreement, sometime during the month of June respondent left the home of appellant at Camden and moved with the children to the home of her brother at Columbia, South Carolina, where she remained until September, 1947. Notwithstanding the fact that the parties had just entered into a separation agreement, appellant testified, and respondent did not deny, that during this period he spent about three nights each week with his wife in this home. On September 10, 1947, respondent left Columbia and went with the children to New York City for the purpose of taking the contemplated course in beauty culture. The children remained there only a short time and were soon placed in a Catholic boarding school in North Carolina. The record does not disclose how long respondent remained in New York City. She took the course in beauty culture, which was paid for by appellant. Thereafter she left New York City and moved to Charlotte, North Carolina, where at the time of the commencement of this action she was working as a beautician. For two or three years the children have attended the Catholic boarding school in North Carolina and during the summer and on various weekends have lived with their father at Camden.

We shall first determine whether the facts are sufficient to justify a divorce on the ground of desertion. It is apparently conceded that the evidence is insufficient to justify a divorce on any other ground. Counsel for respondent state in their brief: 'It is not out contention that the misconduct in the instant case on the part of the husband is a ground for divorce.' Nor is there any claim that appellant physically abandoned respondent. The divorce is sought solely on the ground of constructive desertion. It is said that the conduct of appellant was such as to make life intolerable and compel respondent to leave his home and that after she did so and remained away for the statutory period of one year, she became entitled to a divorce.

The right to the relief sought is vigorously contested by appellant who contends (1) that constructive desertion is not a ground for divorce in this state, (2) that assuming that it is, the evidence in this case does not show a constructive desertion, and (3) that there was no desertion, actual or constructive, because the separation was by mutual consent and under a separation agreement.

We...