McKenzie v. McKenzie, 19073
| Decision Date | 06 July 1970 |
| Docket Number | No. 19073,19073 |
| Court | South Carolina Supreme Court |
| Parties | Raymond K. McKENZIE, Respondent, v. Elizabeth S. McKENZIE, Appellant. |
Kennedy & Price, Columbia, for appellant.
Philip H. Arrowsmith, Florence, for respondent.
This action for divorce, brought by the husband against the wife in the Court of Common Pleas for Florence County, was tried by reference. The master recommended that the husband be granted a divorce on the ground of physical cruelty, that the wife be denied alimony, that she be denied any interest in the husband's property, and that the husband be awarded custody of a minor daughter. Upon hearing the wife's exceptions to the report, the circuit judge concurred in the master's findings with respect to the granting of a divorce and the custody of the minor child. However, he awarded the wife alimony of $250.00 per month and awarded her specified items of household furnishings and other personal property. So far as the record discloses, the wife did not except to the master's disallowance of her claim to an interest in the real estate to which the husband had title, and no issue as to this property was presented to or passed upon by the circuit judge. The wife has appealed to this court on a number of exceptions which are argued in the brief under four questions.
The wife first challenges the concurrent findings of the referee and circuit judge that her conduct amounted to physical cruelty within the meaning of the divorce statute. It appears that on the occasion relied upon the wife sought her husband out at a Florence social club, where he was seated at the bar with another couple. An argument ensued. As the husband was leaving the club, the wife took a pistol from her handbag and shot at him four times from close range. He was seriously wounded by one pistol ball which entered his chest. The wife seeks to justify this enormous battery on the ground of self-defense, a claim which finds scant support in her own testimony. We agree with the findings below that there was no justification for the shooting. We also agree that this case falls within the rule that a single act of physical cruelty which is 'so severe and atrocious as to endanger life,' absent justification, will constitute ground for divorce. Brown v. Brown, 215 S.C. 502, 509, 56 S.E.2d 330, 334 (1949).
The wife next charges that the court erred in failing to award to her 'any part of the property acquired by the parties during their twenty-five years of marriage.' Two classes of property are involved, real estate and personal property in the family home. At the time of the final disruption of the marriage, the husband owned the residence, which had been acquired in 1962. He also owned a small tract of land in Florence County and three other residential lots in or near the city. The record is silent as to how or when these parcels were acquired. In claiming that the court erred in not awarding her an interest in this real estate, the wife's reliance is upon the doctrine that a wife who has made a material contribution toward the acquisition of property by her husband during coverture acquires an equitable interest therein which, according to some authorities, will be recognized on divorce. See 27B C.J.S. Divorce § 293, p. 272 (1959); 24 Am.Jur.2d, Divorce and Separation, Sec. 928, p. 1057 (1966). We need not examine this doctrine because, as has been seen, the point was not raised in the circuit court. It is well settled that an issue which has not been presented to or passed upon by the circuit court will not be considered here.
The wife next contends that the award made to her of a portion of the furnishings and personal property from the home was wholly inadequate, because, according to the brief, the 'record on appeal overwhelmingly shows the vast majority of the parties' property was purchased by the wife or acquired from her family by inheritance.' This assertion is not supported by the record. We quote from the order appealed from:
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On this point, the record only...
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Gibson v. Gibson
...cruelty where, among other things, wife threatened husband with a BB gun and husband admitted he was not afraid); McKenzie v. McKenzie, 254 S.C. 372, 175 S.E.2d 628 (1970) (a single battery held to be so severe and atrocious as to endanger life where wife shot at husband four times at close......
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Simmons v. Simmons, 21248
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