McLaughlin v. McLaughlin, No. 18214

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: TAYLOR
• Citation: 136 S.E.2d 537,244 S.C. 265
• Docket Number: No. 18214
• Decision Date: 13 May 1964
• Parties: Dlane Stockman McAUGHLIN, Appellant, v. John Emmette McLAUGHLIN, Respondent.

Page 537

136 S.E.2d 537 244 S.C. 265 Dlane Stockman McAUGHLIN, Appellant,
v.
John Emmette McLAUGHLIN, Respondent. No. 18214. Supreme Court of South Carolina. May 13, 1964.

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[244 S.C. 268] Horger & Horger, Orangeburg, Kermit S. King, Columbia, Lever & Shealy, Lexington, for appellant.

Furman R. Gressette, St. Matthews, for respondent.

TAYLOR, Chief Justice.

This is an appeal from a decree of the Court of Common Pleas of Calhoun County, denying the plaintiff, Diane Stockman McLaughlin, a divorce based on the grounds of constructive desertion and physical cruelty.

[244 S.C. 269] The defendant, John Emmette McLaughlin, filed an answer in which he generally

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denied the allegations of the complaint and sought the aid of the Court in bringing about a reconciliation between the parties.

The matter was referred to a Special Referee, who in his report of February 22, 1963, concluded that the evidence established physical cruelty and constructive desertion and recommended that plaintiff be granted a complete and absolute divorce. Exceptions to this report were taken by the defendant, and the Circuit Judge thereafter issued his decree on May 9, 1963, by which he denied plaintiff a divorce for the reason that 'the testimony is totally lacking corroboration by any witness or by any additional corroborating circumstances' and plaintiff appeals.

The parties hereto were married September 14, 1957, in Calhoun County and have one child, a daughter, born November 7, 1959. They lived together as husband and wife until October 9, 1960, at which time plaintiff, together with the child, left the home and went to live with her parents, who also reside in Calhoun County, and have lived separate and apart since that time.

In his report the Special Referee properly concluded that 'In this case proof of physical cruelty is necessary to establish constructive desertion since the plaintiff is compelled to show that she was forced to leave the defendant because of conduct sufficient in itself to constitute a ground for divorce. All other essential elements of desertion are present in this case. The primary issue, therefore, is whether or not the evidence is sufficient to establish the charge of physical cruelty.' See Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629; and Mincey v. Mincey, 224 S.C. 520, 80 S.E.2d 123.

This being an equity case with no concurrent findings of fact, this Court has jurisdiction to consider the evidence and find the facts in accord with our view of the preponderance or greater weight of the evidence. [244 S.C. 270] Harvey v. Harvey, 230 S.C. 457, 96 S.E.2d 469.

Plaintiff recites 3 isolated events in support of her charge of physical cruelty, the first occurring in November, 1957, during the second month of marriage, in which she testified defendant 'knocked' her jaw out of place, and the second was on New Year's Eve, 1958, when she stated defendant hit her in the face with his fist, which she believed left a black eye or black mark on her face, and the third occasion occurred approximately May 1, 1960, when defendant slapped plaintiff, while she was holding their daughter, knocking her to the floor. Defendant caught the child before she fell.

The trial Judge concluded that there is no corroboration of plaintiff's testimony relating to physical cruelty and denied the divorce.

In Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330, 15 A.L.R.2d 163, the Court held with respect to the necessity of corroboration in divorce actions that a divorce will not be granted on the uncorroborated testimony of a party or the parties to the suit; however, as the main reason for the rule is to prevent collusion, it is not generally deemed inflexible and may be relaxed where it is evident that collusion does not exist. When the rule is deemed applicable, corroboration is required of all material allegations of the complaint necessary to sustain a decree of divorce; but such corroboration need not in itself be sufficient to warrant such relief. Corroboration may be by either direct or circumstantial evidence. All testimony is not required to be corroborated in every particular. It may be corroborated by testimony of third persons as to some of the causes alleged or by testimony to acts other than those specifically alleged which tend to prove those that are.

The testimony of plaintiff's witnesses does not corroborate her charges of physical cruelty. She, however, contends[244 S.C. 271] that corroboration is not required where the divorce is contested and there is no question of collusion between the parties; and, further, that if in this case the Court requires corroboration, the testimony of the defendant

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sufficiently corroborates plaintiff's allegations of physical cruelty.

In South Carolina the rule requiring corroboration is not mandatory and the necessity of such to a large extent depends upon the facts and circumstances of each case. Some states have adopted a rule that where a divorce case is contested, the Court may grant a...