Mays v. Mays, 20299

• Citation: 229 S.E.2d 725,267 S.C. 490
• Decision Date: 28 October 1976
• Docket Number: No. 20299,20299
• Court: United States State Supreme Court of South Carolina
• Parties: Shirley E. MAYS, Respondent-Appellant, v. Robert C. MAYS, III, Appellant-Respondent.

Page 725

229 S.E.2d 725

267 S.C. 490

Shirley E. MAYS, Respondent-Appellant, v. Robert C. MAYS, III, Appellant-Respondent.

No. 20299.

Supreme Court of South Carolina.

Oct. 28, 1976.

Blease, Griffith & Stone, Newberry, and Savage, Royall, Kinard & Sheheen, Camden, for appellant-respondent.

West, Bendorf, Cooper & Bowen, Camden, for respondent-appellant.

GREGORY, Justice:

The respondent-appellant (wife) brought this action for divorce, A vinculo matrimonii, against the appellant-respondent (husband) on the ground of physical cruelty. In her complaint she also sought custody of Robert C. Mays, IV, an infant son born of the marriage, support for the child and alimony for herself, fees for her attorney and a restraining order.

The husband answered the complaint denying the wife was entitled to a divorce on the ground claimed. By way of counterclaim he sought a divorce, A vinculo matrimonii, from the wife on the ground of adultery and the custody of the infant son.

The case was heard by the Honorable Frank E. Rector, Judge of the Family Court for Kershaw County. After three hearings and voluminous testimony Judge Rector issued his decree granting the wife a divorce, A vinculo matrimonii, custody of and support for the infant son, alimony and attorney's fees. The husband and wife both appeal. We affirm the decree with respect to the granting of a divorce, A vinculo matrimonii, and child custody but reverse for inadequacy and remand as to support, alimony and attorney's fees.

The husband contends the wife was not entitled to a divorce, alimony, attorney's fees or custody of their child. We have examined the exceptions with respect to these contentions and in light of the testimony find them manifestly without merit. Since review of them is of no precedential value, reveals no legal error, and grants appellant-respondent no relief while exposing all concerned to needless embarrassment, we dismiss his exceptions pertaining to the grant of divorce, attorney's fees, and custody under Supreme Court Rule 23.

The husband further contends that the court erred in excluding a tape recording of a telephone conversation sought to be introduced into evidence for the purpose of impeaching by prior inconsistent statements the credibility of a witness testifying for the wife. The husband's private investigator duly qualified the tape by testifying she had called the subject witness and recorded their conversation. She testified the tape had a safety device precluding any alteration, that the tape conversation was authentic and correct, that the tape had been in her exclusive custody since being recorded, and that she recognized the voices on the tape as being hers and that of the witness sought to be impeached.

Impeachment of a witness by showing prior statements inconsistent or contradictory of his trial testimony is permissible. State v. Williams,222 S.C. 354, 72 S.E.2d 830 (1952); Martin v. Dunlap, 266 S.C. 230, 222 S.E.2d 8 (1976). Such impeachment evidence need not be excluded because it was secured by electronic eavesdropping. Lopez v. U.S., 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed. 462 (1963). 18 U.S.C.A., Section 2511(2)(d) makes it clear that one party to a telephone conversation may lawfully tape the conversation without the other's knowledge or permission and subsequently disclose it. See Smith v. Wunker, 356 F.Supp. 44 (D.C.Ohio 1972); State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950).

Although the court erred in excluding the taped conversations such error was not sufficiently prejudicial to the husband's case to afford him any relief. The witness was introduced by the wife to show she was a fit mother. Appellant-respondent sought on cross-examination to show a relationship between the wife and an alleged paramour. In essence, the husband sought to rebut the testimony of his wife that she did not know the alleged paramour by impeaching the credibility of the wife's character witness who testified that although she knew the alleged paramour the wife did not. Impeachment of this witness would not have proven the wife's knowledge of the alleged paramour and certainly not an adulterous relationship with him. In light of the husband's failure to prove any acts of unfitness of the wife to care for the child, the impeachment of this witness's testimony regarding her fitness, would likewise have achieved nothing.

The wife, respondent-appellant, appeals the insufficiency of the alimony, child support, and attorney's fees. She contends that Two Hundred ($200.00) Dollars per month as child support plus medical expenses in excess of Fifteen ($15.00) Dollars per month and payment of the first and second mortgages on the house and car payments is grossly inadequate support from a husband whose annual...