Mincey v. Mincey

• Decision Date: 01 February 1954
• Docket Number: No. 16828,16828
• Parties: MINCEY v. MINCEY.
• Court: South Carolina Supreme Court

Page 123

80 S.E.2d 123

224 S.C. 520

MINCEY v. MINCEY.

No. 16828.

Supreme Court of South Carolina.

Feb. 1, 1954.

William L. Cain, Frank L. Taylor and Eugene F. Rogers, Columbia, for appellant.

Thomas H. Pope, Newberry, John Gregg McMaster, Columbia, for respondent.

G. BADGER BAKER, Acting Associate Judge.

This appeal is by the husband from a decree granting his wife a divorce on the ground of constructive desertion together with alimony, counsel fees, and awarding the wife the custody of their two minor children.

In June of 1950 the respondent commenced an action for divorce upon the statutory ground of physical cruelty. Shortly thereafter, the Honorable John T. Sloan, now deceased, Judge of the Juvenile-Domestic Relations Court of Richland County, issued his order directing appellant to pay respondent the sum of $175 per month for temporary maintenance and support for herself and children. An order of reference was issued, following which Honorable Harry M. Lightsey, Master for Richland County, conducted the necessary reference and filed his Report on November 27, 1950, wherein he found and recommended that respondent was not entitled to a divorce upon the ground of physical cruelty. In this Report the Master did not make any finding as to the custody of children or as to maintenance and support, specifically stating that his recommendations were only on the ground of physical cruelty and not to any other cause of action for divorce which respondent might have against appellant. No further action was taken in this matter, nor was any order passed by Judge Sloan affirming the Master's Report.

Thereafter, on June 11, 1951, respondent commenced her action for divorce upon the ground of desertion. The complaint alleged respondent and appellant were married April 3, 1937, and lived together as man and wife in Richland County from June 1945 until June 1950, when appellant abandoned and deserted respondent and his children. It is further alleged the desertion was brought about by the appellant's excessive drinking, cruel and degrading and unjust treatment of respondent and their children, his use of profane and obscene language, and appellant's engagement in an affair with another woman, all of which was so humiliating and degrading to respondent that she and the children were forced to leave the residence of appellant in Columbia and live with respondent's parents in Winnsboro. The complaint further alleges that under these facts and circumstances 'the defendant has deserted the plaintiff, such desertion extending over a period of more than one year prior to the institution of this action, and on this ground plaintiff is entitled to a complete and final divorce.' There are appropriate allegations in the complaint requesting custody of the children, maintenance and support, and counsel fees.

In due course of time appellant answered the complaint, denying the conduct charged against him and alleging that respondent abandoned the home voluntarily, taking their children with her, against his desires and wishes. He further says that it would be to the best interest of the children to have the care, custody and control awarded to him, and asks for dismissal of the complaint and complete custody, care and control of the minor children.

There was an interchange of notices of motions between counsel for respondent and appellant, which motions were heard by Judge Sloan in July of 1951, and he issued a consent order consolidating the two divorce actions of June 1950 and June 1951, and referred the consolidated actions to the Master for Richland County to take the testimony concerning the cause of action for divorce as alleged in the complaint of June 11, 1951, as well as to determine the question for care, custody and control of the children, maintenance and support and counsel fees, if any. The order theretofore issued awarding respondent temporary maintenance and support in the sum of $175 per month was continued in force and effect during the pendency of the action.

Thereafter, the Master held numerous hearings, and on July 30, 1952, rendered his Report to the Juvenile-Domestic Relations Court wherein he concluded and recommended from the evidence, (1) that respondent was entitled to divorce from appellant upon the ground of constructive desertion; (2) that the custody of the two minor children be awarded to respondent except the months of June, July and August, wherein custody is transferred to appellant, with the right of either to visit the children when the other has custody, with an interchange of custody during Christmas holidays; (3) that respondent should be required to pay the sum of $150 per month for the support of the two children, and $25 per month as alimony to respondent as long as she remains single; and (4) a reasonable fee for respondent's counsel in the sum of $350.

Exceptions were taken to the Master's Report and argued before Judge Sloan, and on December 8, 1952, he filed his order overruling all of the appellant's exceptions, confirming the Master's Report and awarding respondent's counsel an additional fee of $200 for services rendered respondent in enforcing compliance of the order heretofore issued in contempt proceedings instituted against appellant. Exceptions were taken from the order of Judge Sloan to the Court of Common Pleas, and thereafter, on April 11, 1953, Honorable J. Frank Eatmon, then presiding Judge of the Fifth Judicial Circuit, issued and filed his order overruling all exceptions and confirming in all respects the order and judgment of the Juvenile-Domestic Relations Court.

The Master, in his Report, refers to the original action of June 22, 1950, for divorce on the ground of physical cruelty, stating the respondent failed to prove the allegations of physical cruelty. His factual findings, upon the question of divorce, is contained in one paragraph, to wit, 'It appears from the evidence that it is necessary for the defendant to be away from home considerable portions of the time and until late hours at night; that the defendant drinks from time to time; and that he does have close and unusual association with one of his female employes, to the extent of having in his possession a picture of said employee (a part of evidence herein). In addition, the plaintiff complains of having been slapped, and of an injury to the leg of one of the minor children caused by a cigarette thrown at her by the defendant.'

He then concludes from the evidence, 'taking into consideration the highly nervous temperament of the plaintiff, that the plaintiff is entitled to a divorce a vinculo matrimonii from the defendant upon the ground of constructive desertion for a period of one year.'

The affirming order and decree of the Juvenile-Domestic Relations Court does not contain any additional comment upon the evidence. The order and decree of the Court of Common Pleas cites and discusses, at length, the case of Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629, wherein this Court, opinion by Justice Oxner, considered the question of constructive desertion Judge Eatmon, referring to the evidence, says:

'* * * In the instant case the evidence clearly shows that the parties separated because of the husband's close and unusual relationship with his female employee, Mrs. Ligon, and because of the husband's excessive drinking, excessive use of profanity, abuse of his wife and son and his threats against his wife. As the plaintiff testified, life to her became unbearable because of her husband's misconduct and although she remonstrated with him about Mrs. Ligon, he not only refused to terminate his relationship with her but flaunted it in his wife's face and dared her to do anything about it.

'Any reasonable man must have known that the natural consequence of defendant's misconduct would be his wife's leaving home and refusing to continue longer the marital relation. * * *'

We have quoted from the Master's Report and the final order for two reasons, (1) to avoid a detailed review of the voluminous testimony in the record before us, which could not serve any useful purpose, and (2) the misconduct that must be shown to justify a divorce on the ground of constructive desertion.

An action for divorce is within the equity jurisdiction of the Court. Accordingly the evidence must be considered in the light of the well settled rule that in an equity case findings of fact by a Master or 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.

Succinctly stated, the evidence, and its inferences, establishes reprehensible misconduct on the part of appellant, but without specific or sufficient proof of adultery, physical cruelty or habitual drunkenness. Nor is there any claim that appellant physically abandoned respondent. It is apparently conceded by respondent that the evidence is insufficient to justify a divorce on any other ground than 'constructive desertion.'

In Machado v. Machado, supra [220 S.C. 90, 66 S.E.2d 633], this Court held that the constitutional amendment of 1949, authorizing divorces, is to be construed to include constructive as well as physical or actual desertion, but 'the doctrine, when indiscriminately applied, is capable of much mischief.'

There are two well defined views or judicial opinions as to the character of the misconduct sufficient to justify a divorce a vinculo matrimonii on the basis of constructive desertion. These divergent views are set forth by Mr. Justice Oxner in the Machado case, supra:

'It also might not be amiss to call attention to the fact that while the doctrine of constructive desertion is generally recognized, there is an irreconcilable conflict in the authorities as to the character of misconduct that must be shown to justify a divorce on this ground. Many courts hold that the abandoning party seeking to...