McDowell v. McDowell, 1407

• Decision Date: 16 October 1989
• Docket Number: No. 1407,1407
• Citation: 386 S.E.2d 468,300 S.C. 96
• Court: South Carolina Court of Appeals
• Parties: Jacqueline Howell McDOWELL, Appellant, v. Ronald Dean McDOWELL, Respondent. . Heard

Page 468

386 S.E.2d 468

300 S.C. 96

Jacqueline Howell McDOWELL, Appellant, v. Ronald Dean McDOWELL, Respondent.

No. 1407.

Court of Appeals of South Carolina.

Heard Oct. 16, 1989.

Decided Oct. 30, 1989.

John P. Ford of Bryan, Bahnmuller, King, Goldman & McElveen, Sumter, for appellant.

Hans F. Paul, North Charleston, for respondent.

CURETON, Judge:

In this domestic action the wife appeals the portions of the order (1) granting the husband a divorce on the grounds of physical cruelty, (2) awarding the husband alimony, (3) equitably dividing the marital property, and (4) awarding attorney fees and costs to the husband. We affirm as modified.

Jacqueline and Ronald McDowell were married in 1983 and separated in 1986 after approximately two and one-half years of marriage. Both had been previously married. Six months after their separation Jacqueline McDowell shot Ronald McDowell when he came to her residence and tried to obtain a vehicle from her. Mr. McDowell was seriously injured and sustained permanent injuries. He has not been employed since the shooting.

Jacqueline McDowell filed for a divorce on the ground of one year continuous separation. Ronald McDowell counterclaimed for a divorce based upon physical cruelty. He also sought alimony, equitable division, and attorney fees. The family court granted Ronald McDowell a divorce on the ground of physical cruelty, awarded him alimony of $200 per month, equitably divided the marital assets and debts, and awarded him attorney fees. We address each item separately.

PHYSICAL CRUELTY

Jacqueline McDowell argues the court erred in granting a divorce on the ground of physical cruelty. The court found the single act of violence was not provoked by Ronald McDowell and was totally out of proportion to his action of trying to recover the vehicle. The court found it was Mrs. McDowell's intention to do serious bodily harm to Mr. McDowell. Mrs. McDowell asserts the shooting was accidental and, in any event, provoked by Mr. McDowell.

Mr. McDowell and three other people came to Mrs. McDowell's residence at about ten o'clock at night. She was alone and did not have a telephone. She had not seen Mr. McDowell in almost six months. She testified a car without lights appeared several times in the road by her home and she was frightened because someone had tried to break in previously. She carried her pistol with her to answer the door. Mr. McDowell was present with his son. They had a discussion about the car. She testified Mr. McDowell was acting out of character but she did not see any weapons. He turned to leave after she refused to give him the car. He turned back to say something to her when he was about six feet away and she testified the gun went off accidentally. She did admit during testimony that she would have shot him if he had come within a certain distance of her.

A single assault by one spouse upon the other spouse can constitute physical cruelty. The assault must, however, be life threatening or must be either indicative of an intention to do serious bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future. Gibson v. Gibson, 283 S.C. 318, 322 S.E.2d 680 (Ct.App.1984). A divorce on the ground of physical cruelty will not be granted when the physical cruelty is provoked by the complaining spouse and the physical cruelty is not out of proportion to

                the provocation.  Id.  The family court heard the testimony and observed the witnesses.   We find sufficient evidence in the record to support the findings and conclusions of the family court awarding the divorce on the ground of physical cruelty.   The single assault was certainly life threatening and indicative of an intention to do serious bodily harm.   Although the discussion between Mr. and Mrs. McDowell may have been heated the evidence does [300 S.C. 100] not support the assertion Mr. McDowell provoked the shooting
                

ALIMONY

The family court awarded Mr. McDowell $200 per month in periodic alimony. The court found he had suffered serious and disabling injuries from the shooting. He had previously worked as a route salesman for Frito-Lay and had earned approximately $24,000 per year. Since the shooting he had not been employed. He cannot lift an object weighing over ten pounds and has intermittent low back pain. Mr. McDowell lost bladder and bowel control as a result of the shooting and was also rendered impotent.

Mrs. McDowell claims error in the award of alimony. She asserts she does not have the financial resources to pay the alimony and the award is not appropriate given the length of the marriage. She also disputes the finding of disability.

Mrs. McDowell's financial declaration shows a deficit when her income and expenses are compared. She is employed by the Postal Service at an annual salary of approximately $24,000. Mr. McDowell shows an income of $350 per month from rent of a house. Mr. McDowell testified he has applied for Social Security disability but has been turned down and is appealing. He has no disability income from his former employment. His monthly expenses include two mortgage payments one of which was incurred in consolidating marital debts.

After a review of the record we affirm the award of alimony. Although the marriage was relatively short a consideration of the other factors relevant to an alimony award supports the decision of the court. See Johnson v. Johnson, 288 S.C. 270, 341 S.E.2d 811 (Ct.App.1986) (factors in award of alimony). We specifically note the order of the court held McDowell was to provide a report on the status of his disability claim and Mrs. McDowell was granted leave to apply for a modification of the alimony order if he was successful in the application for benefits.

EQUITABLE APPORTIONMENT

The marital property of the parties consisted of certain horses and equestrian equipment acquired during the marriage. Mrs. McDowell assigns error to the valuation of certain horses, the inclusion of one horse in the marital estate, and the apportionment of the marital estate on a fifty-fifty basis.

Mrs. McDowell did not challenge the inclusion of five horses in the marital estate but disputed the court's valuation of the horses. Basically, she claims the horses were either sold for relatively low values or given away in exchange for their board fees. Mr. McDowell gave his opinion of the value of the horses. Mrs. McDowell asserts his values are not reliable because of his lack of expertise. No independent witness testimony was admitted into evidence....