Neves v. Neves, 18919
| Decision Date | 07 May 1969 |
| Docket Number | No. 18919,18919 |
| Citation | 252 S.C. 585,167 S.E.2d 568 |
| Court | South Carolina Supreme Court |
| Parties | Dennis NEVES, Appellant, v. Magdalene NEVES, Respondent. |
Clement L. McEachern, Greenville, for appellant.
Abrams, Bowen & Townes, Greenville, for respondent.
This is a divorce action, the appeal being by the husband from a decree of the Family Court of Greenville County granting the wife a divorce on the ground of physical cruelty and awarding her attorney's fees. At the outset, we find that it is at least doubtful whether any of the husband's exceptions are sufficiently framed or stated, in compliance with the pertinent rule, to properly present any issues for the decision of this court. Bearing in mind, however, the interest of the State in the preservation of marriage bonds, we shall consider what appears to be the principal contention of the appellant-husband.
The first question stated and argued has to do with an interim order of the court from which there was no appeal, and such question is, therefore, not before the court. All other questions argued are predicated on the assumption that the conduct of the husband had been condoned by the wife.
The parties were married on March 20, 1965, and there are no children of the marriage. The wife had two illegitimate children, born prior to the marriage, the husband not being the father thereof. At some undisclosed time prior to August 1967, the parties separated and there is evidence that such was not the first separation. On August 26, 1967, the husband instituted a divorce action against the wife on the ground of alleged physical cruelty, and from then until the date of the divorce decree, September 17, 1968, the parties were before Judge Roper of the Family Court and his predecessor, Judge Hicks, on numerous interim proceedings, many of which are not contained in the present record. The wife demurred to the complaint and also petitioned for a rule to show cause why she should not be paid attorney's fees. The husband filed a return and answer thereto, and on September 5, 1967, he was committed to jail for contempt of court, but went on a hunger strike and was, on September 18th, released for reasons of health.
After still further interim proceedings, the wife, on January 3, 1968, filed an answer and counterclaim or cross complaint charging the husband with physical cruelty and asking for a divorce on such ground. She did not seek alimony but did seek attorney's fees. There followed thereafter still other interim proceedings, until finally the divorce action was brought on for a hearing on the merits by the wife, apparently shortly prior to the final decree, though the date of the hearing does not appear in the record.
Until the hearing, the husband had not filed a reply to the wife's cross action, but counsel for the husband stated that he was defending the wife's cross action on a general denial and that he would not pursue his complaint.
The sufficiency of the evidence to warrant granting the wife a divorce for physical cruelty is not challenged. Subsequent to the divorce decree, the husband having served notice of appeal, an additional order was entered providing for additional counsel fees and costs in connection with the appeal. Not challenged is the amount of fees ordered or the husband's ability to pay. The husband contends, however, that the wife was entitled to neither a divorce decree nor counsel fees, it being asserted by counsel for the husband that there was a reconciliation between the parties in December 1967, and a condonation by the wife of the conduct of the husband.
After filing no reply and announcing at the commencement of the hearing that the husband was defending only on a general denial, counsel for the husband, on cross-examination of the wife, asked the following question:
Objection was interposed and sustained on the ground that condonation was an affirmative defense and had not been pled. Counsel for the husband then stated that he desired to change the general denial to plead the fact that the parties had lived together as man and wife in December 1967, but his motion was overruled.
Later, in direct examination of the husband, referring to an incident which had happened in the apartment of the wife in August 1967, there occurred the following question and answer:
The next question and answer was as follows:
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