Oswald v. Oswald, 17228
Citation | 230 S.C. 299,95 S.E.2d 493 |
Decision Date | 03 December 1956 |
Docket Number | No. 17228,17228 |
Court | United States State Supreme Court of South Carolina |
Parties | Luther D. OSWALD, Jr., Respondent, v. Mildred Gates OSWALD, Appellant. |
T. P. Taylor, Columbia, for appellant.
Seigler & Seigler, Columbia, for respondent.
The appellant, Mildred Gates Oswald, and the respondent, Luther D. Oswald, Jr., are husband and wife. They were married in Lexington County, South Carolina, on May 22, 1938.
This action which was instituted on October 18, 1952, is one for a divorce a vinculo matrimonii on the ground of desertion for a period of one year. Section 20-101(2), 1952 Code of Laws of South Carolina. The appellant denies that she is guilty of desertion. The case was referred to the Standing Master for Richland County, South Carolina, for the purpose of taking the testimony and reporting his conclusions of fact and law. The Master filed his report in which he found that the appellant deserted the respondent in April 1949, and recommended the granting of a divorce to the respondent. Upon exceptions by the appellant to the findings of fact and legal conclusions contained in the Master's report, the Honorable Legare Bates, Judge of the Richland County Court, rendered his decree affirming the report and recommendations of the Standing Master.
The case comes to this Court upon ten exceptions, which may be disposed of by determining whether or not there was sufficient evidence to support the findings of fact that the appellant had deserted the respondent.
As is heretofore stated, the Master and the County Judge have concurred in a finding that the appellant deserted the respondent. We are, therefore, bound by the rule that in an equity case where the findings of fact by a Master are concurred in by the Circuit Judge, that such are conclusive upon this Court and will not be disturbed unless it is shown that such findings are without any evidence to support them, or are against the clear preponderance of evidence. Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629; Mincey v. Mincey, 224 S.C. 520, 80 S.E.2d 123; Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225; Dean v. Dean, 229 S.C. 430, 93 S.E.2d 206.
In Mincey v. Mincey, supra, we said [224 S.C. 520, 80 S.E.2d 126]:
We have carefully studied the record and find that the facts amply support the holdings of the Master, and such findings having been affirmed and concurred in by the County Judge, we are bound by same.
This action for divorce is based upon the ground of desertion. This Court has clearly set forth in the case of Frazier v. Frazier, supra, the essential elements of desertion. We quote therefrom the following [228 S.C. 149, 89 S.E.2d 234]:
'In Machado v. Machado, 220 S.C. 90, 100, 66 S.E.2d 629, 633, the essentials of desertion are stated to be:
"(1) cessation from cohabitation, (2) intent on the part of the absenting party not to resume it, (3) absence of the opposite party's consent, and (4) absence of justification." It is further stated: 'All the authorities agree that an intent to desert is an indispensable element.'
'In 17 Am.Jur., Divorce and Separation, Section 379, is the following:
The respondent is now and has been since the early part of World War II an enlisted man in the United States Navy. Since he has been in the services of his country the appellant has received an allotment from the respondent in the amount of $137 per month. The respondent was stationed in the Panama Canal Zone where he and the appellant lived together prior to October 1948. He was then transferred to New London, Connecticut. The belongings of both parties were shipped there. Between the two assignments the respondent had a leave of ten days and a portion of this time was spent in Columbia, South Carolina, with respondent's parents. At the end of his leave the respondent went to his new station in Connecticut, the appellant remaining in Columbia, and according to her testimony for the purpose of having her teeth...
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