Poliakoff v. Poliakoff, 16622

• Decision Date: 30 April 1952
• Docket Number: No. 16622,16622
• Citation: 221 S.C. 391,70 S.E.2d 625
• Parties: POLIAKOFF v. POLIAKOFF.
• Court: South Carolina Supreme Court

Page 625

70 S.E.2d 625

221 S.C. 391

POLIAKOFF v. POLIAKOFF.

No. 16622.

Supreme Court of South Carolina.

April 30, 1952.

Lyles & Lyles and J. Davis Kerr, all of Spartanburg, for appellant.

Thomas W. Whiteside, Charles C. Moore, Spartanburg, for respondent.

OXNER, Justice.

This is an action by a husband against his wife for a divorce a vinculo matrimonii on the ground of physical cruelty, and for the custody of their six year old son. The wife denied the charges contained in the complaint, alleged that her husband's conduct and attitude toward her became unbearable, compelling her to leave the home, and asked that she be given custody of the child and an allowance of alimony pendente lite and counsel fees. The case is here on appeal by the wife from an order refusing temporary alimony and suit money and awarding custody of the child to the husband during the pendency of the action.

Appellant and respondent have only one child. They were married on January 2, 1944. Shortly thereafter they moved to Spartanburg where respondent has for a number of years been engaged in the practice of law. In January, 1950, he suffered a serious heart attack which incapacitated him for some time from pursuing his profession. In May, 1951, on account of his health, the couple moved to Florida but ceased living together on July 17, 1951. There is a sharp dispute as to the cause of the separation. He alleges that she voluntarily left the home while he was in a serious physical condition. She claims that she was compelled to leave on account of his intolerable conduct and that she returned the next day to get the child but, in the meantime, respondent had surreptitiously left Florida with their son and returned to Spartanburg. It seems to be undisputed that he is now actively engaged in the practice of law in Spartanburg.

It is alleged in the complaint 'that over a period of time and particularly since plaintiff suffered his first heart attack in January, 1950, the defendant has pursued a course of cruel, inhuman, abusive and brutal treatment toward the plaintiff with utter disregard for plaintiff's life and physical well being, she well knowing of his grave condition.' Various acts of alleged cruelty are then enumerated. It is further alleged that 'the defendant is mentally and emotionally unstable, and that she is not a fit and proper person to have the care and custody of their minor child.'

Upon the verified complaint, the County Judge of Spartanburg County, on July 23, 1951, issued an order requiring appellant to show cause before him on July 30, 1951, why the custody of the child should not be awarded to respondent during the pendency of the action.

A return was duly filed by appellant. After denying the charges contained in the complaint, she alleged that they lived happily together until sometime after the birth of their son, when respondent began to assume an attitude of 'distrust and verbal abusage' and thereafter on numerous occasions accused her of being mentally unbalanced and unchaste. She further alleged that her husband was not a fit and suitable person to have custody of their child. Attached to this return were two affidavits by appellant's physicians, stating that she was a fit and suitable person to have custody of the child, and a large number of affidavits to the effect that she was a considerate and dutiful mother.

In reply to the foregoing showing on the part of appellant, respondent submitted an affidavit by their servant that he was 'kind and good' to his wife and child; that she 'acted downright mean' to both her husband and child on numerous occasions; and that several times appellant had whipped or slapped the child 'when he hadn't done nothing to deserve it.' There were two affidavits by respondent's physicians as to his cardiac condition, which they stated was considerably aggravated by the tension between the parties. Respondent's brother made an affidavit in which he stated that he visited the apartment of this couple in Florida on July 17, 1951, and found his brother in a serious physical condition, and that appellant had left, taking her clothing and other personal effects.

A hearing was had before the County Judge on August 7, 1951. He had before him the verified pleadings and the various affidavits heretofore mentioned. He also conferred informally with appellant and respondent, together and separately, and examined the little child, who indicated a desire to remain with his father. Thereafter on August 22, 1951, an order was filed refusing appellant's application for temporary alimony and counsel fees and awarding custody of the child to respondent during the pendency of the action.

We shall first determine whether the court below erred in refusing temporary alimony and suit money. Section 8 of our divorce statute, Act No. 137 of the 1949 Acts, 46 St. at L. 216, provides:

'In every action for divorce from the bonds of matrimony, the wife, whether she be plaintiff or defendant, may in her complaint or answer or by petition pray for the allowance to her of alimony and suit money, and for the allowance of such alimony and suit money pendente lite; and, if such claim shall appear well founded, the court shall allow a reasonable sum therefor.'

It was stated in Jeffords v. Jeffords, 216 S.C. 451, 58 S.E.2d 731, 733 that the foregoing section 'appears to be merely an enactment of the rule which had already crystallized in our former decisions with respect to suits for alimony.' Under the rule mentioned, the wife is regarded as the privileged suitor and in determining whether temporary alimony and counsel fees shall be allowed, it is not necessary to examine into the merits of the controversy. Armstrong v. Armstrong, 185 S.C. 518, 194 S.E. 640. But to entitle the wife to such relief, it is incumbent upon her to establish a prima facie case. Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29; Jeffords v. Jeffords, supra.

Where the action is one for divorce and not merely for separate maintenance and support, it is generally held that if the wife applies for temporary alimony or suit maney, 'she must show prima facie that she has a probable cause for divorce * * *, or, if she is defendant, that she has a valid defense to the action.' Nelson on Divorce and Annulment, 2nd Ed, Vol. 1., Section 12.26. 'There is some distinction, however, accordingly as the wife complains or is complained against.' Suydam v. Suydam, 79 N.J.E. 144, 80 A. 1057, 1058. Generally speaking, where the husband sues the wife for divorce and the only showing before the court is his verified complaint and a verified answer by the wife denying the grounds for divorce and showing that she is without funds to defend the suit or maintain herself during the pendency of the action, a prima facie case is made for the allowance of temporary alimony and counsel fees. Suydam v. Suydam, supra; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436; Ex...