Miller v. Miller, 16866

• Decision Date: 11 May 1954
• Docket Number: No. 16866,16866
• Citation: 225 S.C. 274,82 S.E.2d 119
• Court: South Carolina Supreme Court
• Parties: MILLER v. MILLER.

Page 119

82 S.E.2d 119

225 S.C. 274

MILLER v. MILLER.

No. 16866.

Supreme Court of South Carolina.

May 11, 1954.

Nelson, Mullins & Grier, Frank L. Taylor, Columbia, for appellant.

R. K. Wise, Arthur T. Cole, Jr., A. Birge Wise, Jr., columbia, for respondent.

OXNER, Justice.

This action was brought by the wife for a divorce a mensa et thoro on the ground of physical cruelty. The husband denied this charge and interposed a counterclaim in the nature of a cross-action, wherein he sought a divorce a vinculo matrimonii on the grounds of physical cruelty and habitual drunkenness. He was later permitted to amend his counterclaim by adding desertion as a third ground for divorce. All of these charges were denied by the wife in her reply.

The case was referred to the Master who recommended that the relief sought by the husband be denied; that the wife be granted a divorce a mensa et thoro on the ground of physical cruelty; that the husband be required to pay alimony in the sum of $50 per month and to reimburse his wife for certain medical expenses, amounting to $774.20, which should have been paid by him; and that the husband be further required to pay reasonable compensation to the wife's attorneys for prosecuting the action, the amount thereof to be later determined. Both parties filed exceptions to the report of the Master. His conclusion was affirmed by the Circuit Judge except as to the amount of alimony and the date from which it should be paid. The Circuit Judge increased the amount of alimony to $100 per month, retroactive to January 21, 1952. He then recommitted the case to the Master for the purpose of taking testimony as to the amount of attorneys' fees to be allowed the wife's attorneys and reporting his conclusion thereabout. From this order, the husband has appealed.

The parties were married on July 31, 1948, he for the first time and she for the second. Appellant, a retired mail carrier living on a farm owned by him near Columbia, was then about sixty years of age. His principal source of income consisted of retirement and disability benefits paid by the Government. Respondent, who is some fourteen years younger than appellant, has been for a number of years an employee of the Veterans Administration. Her first husband was a World War I veteran and after his death she received a pension of $75 per month, which terminated when she married appellant.

After their marriage, this couple resided for several months in respondent's apartment in the City of Columbia, after which they moved into a nice home on the farm of appellant upon which respondent expended around $500 in repairs and furnishings. She continued to work for the Veterans Administration. Appellant raised chickens, hogs and cows on the farm, from which he received a small income. During May, 1950, respondent injured her back in a fall which necessitated using braces for about three months and caused her to lose four months from work.

Although the parties had their differences, there was no serious discord until December, 1950, when, according to respondent, her husband cut off the radio in her bedroom one night and upon being asked why he did so, 'flew into a rage and twisted my right arm until I could hardly use it for several days', which made it necessary for her to resume wearing a brace.

The next alleged act of cruelty occurred just before breakfast on May 7, 1951. Respondent testified that when she entered the kitchen, her husband cursed her and knocked her against the pantry door. She immediately consulted her physician who testified that 'x-rays of the chest revealed a fracture of the seventh rib on the right side.' Appellant gave the following version of this incident: 'We were out in the kitchen cooking and going backwards and forwards from the sink to the stove and she would go right between me and the sink or the stove and I gave her a push and she went against the door and broke that towel rack.'

The third physical encounter occurred on July 3, 1951, when it is conceded that they had 'quite a fight'. During the early part of the evening appellant and a next door neighbor went to a baseball game. Respondent became irked because her husband did not arrange for her to go along. He returned about midnight. There is quite a conflict in the testimony as to who was the aggressor. Respondent testified that when her husband returned, she was reading in her bedroom. She was unable to go to sleep and decided to turn on the radio. Her husband became irritated, seized the radio, dropped it on the floor, and knocked her down. She sought to defend herself and a lengthy fight ensued. Respondent says she was slapped and struck a number of times. According to appellant, upon returning home about midnight, he first went to his wife's bedroom. He found her angry and went to his own bedroom. His wife then turned 'the radio on full force.' This kept him from sleeping and he went out on the porch. Finally, about one o'clock he disconnected the radio and says as he was returning to his room, his wife struck him with a smoking stand, and then bit and otherwise assaulted him severly. It seems to be undisputed that both parties were rather badly beaten and bruised. When the fight was over, respondent called a member of the State Constabulary but he was unable to come until the next morning.

It seems to be admitted that there was no cohabitation between the parties after the foregoing incident. In fact, respondent says there had been none since May 1, 1951. Although after the altercation of July 3, 1951, respondent for the most part secluded herself in her room, she continued to live in the home until July 21, 1951, when she left. She testified that she could not move sooner because of her inability, due to the housing shortage, to secure a room or an apartment around Columbia. In the following August respondent had to undergo a gallbladder operation. While in the hospital, she was visited by appellant several times, but their differences were never reconciled. As heretofore pointed out, this action was commenced in December, 1951.

On the foregoing conflicting evidence, the Master found that respondent had sustained her charge of physical cruelty and that she was justified in leaving the home on July 21, 1951 because she could no longer live with appellant 'in safety of her health.' These factual conclusions were affirmed by the Circuit Judge. On this appeal there must be applied 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. Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629.

At the outset appellant invokes the well-known maxim of equity that 'he who comes into equity must come with clean hands.' It is argued that the application of this principle is fully warranted by the statement of the Circuit Judge that 'no one can read the record here and reach the conclusion that either (of the parties) is wholly blameless in this controversy.'

While we have held that when a wife seeks alimony, 'she must come with clean hands', Nicholson v. Nicholson, 115 S.C. 326, 105 S.E. 700, we do not understand the rule to require, as counsel for appellant seem to think, that the complainant be entirely blameless. A statement to that effect in Hair v. Hair, 10 Rich.Eq. 163, was construed by Mr. Justice Woods in Levin v. Levin, 68 S.C. 123, 46 S.E. 945, 948, as not...