Porter v. Porter

Decision Date05 August 1965
Docket NumberNo. 18388,18388
Citation246 S.C. 332,143 S.E.2d 619
CourtSouth Carolina Supreme Court
PartiesMargaret H. PORTER, Appellant, v. John Claude PORTER, Respondent.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Harry C. Walker, Greenville, for respondent.

MOSS, Justice:

Margaret H. Porter, the appellant herein, on January 2, 1963, instituted this action in the Juvenile and Domestic Relations Court of Greenville County for a divorce a vinculo matrimonii from her husband John Claude Porter, the respondent herein, on the ground of adultery; Section 20-101(1) of the 1962 Code of South Carolina. She also asked that the custody of the minor child of the marriage be awarded to her and that she be granted support and maintenance for herself and such child and an award of attorneys fees for her counsel. The answer of the respondent denied the aforesaid material allegations of the complaint.

This case was tried before the Honorable J. Wilbur Hicks, Judge of the Juvenile and Domestic Relations Court of Greenville County after the passage of the statutory waiting period required by Section 20-108 of the Code. Extensive testimony was presented to the court at five separate hearings of this case.

The undisputed testimony shows that the parties to this action were married in Media, Pennsylvania, on October 4, 1933. They became residents of Greenville County in 1946, and lived together as husband and wife until August, 1962, and both had been residents of said county for more than one year prior to the institution of this action. Two children were born of this marriage, a son, age twenty-four years, and a daughter, Peggy Jean Porter, age thirteen years, at the time of the commencement of this action.

The Trial Judge, by his decree dated July 14, 1964, granted a divorce a vinculo matrimonii to the appellant from the respondent because of his adulterous conduct with one Clara Orr; awarded custody of Peggy Jean Porter, the minor daughter of the parties, to the appellant with visitation rights to the respondent between the hours of 2:00 o'clock and 5:00 o'clock in the afternoon on the second and fourth Sundays of each month, and at such other times as may be mutually agreed upon by the parties; awarded alimony to the wife in the sum of $325.00 per month and support for the minor daughter in the amount of $60.00 per month, beginning on July 20, 1964; and awarded a fee for the attorneys for the wife in the amount of $750.00. To secure the payment of the aforesaid sums and to insure compliance with the aforesaid decree, the respondent was directed to file a bond with the Clerk of the Court of Common Pleas in the sum of $10,000.00.

The husband appealed from the aforesaid decree to the Circuit Court of Greenville County in accordance with the procedure set forth in Section 15-1281.32 of the 1962 Code of Laws, as amended by an Act of the General Assembly approved June 14, 1963. 53 Stats., page 594. By his exceptions he challenged the correctness of the findings made in the aforesaid decree and asserted that the Trial Judge erred (1) in finding and holding that the financial ability of the husband warrants an allowance of $325.00 per month for the support of his wife and the sum of $60.00 per month for the support of his daughter, the error being that the testimony shows that the income of the husband was such that it was impossible for him to pay this amount; (2) in granting the wife a divorce a vinculo matrimonii; (3) in limiting the husband's visitation rights with his minor daughter between the hours of 2:00 o'clock and 5:00 o'clock in the afternoon on the second and fourth Sundays of each month, the error being that there is nothing in the record which justifies such; and (4) in ordering the husband to file with the Clerk of the Court of Common Pleas for Greenville County a bond in the sum of $10,000.00 conditioned for his compliance with the terms of the decree of said court, the error being that the record is devoid of any testimony warranting or necessitating such a bond.

The appeal in this case was heard by the Honorable Frank Eppes, Resident Judge of the Thirteenth Circuit. By his order, dated December 23, 1964, without making findings contrary to those made by the Juvenile and Domestic Relations Court, he found (1) that the appellant was entitled to a divorce a vinculo matrimonii from the respondent; (2) granted the appellant custody of the minor daughter of the parties, with rights of visitation to the respondentt with said minor between the hours of 2:00 o'clock P.M. Saturday and 5:00 o'clock P.M. Sunday on the second and fourth weekends of each month, and at such other times as may be mutually agreed upon by the parties; (3) awarded alimony to the wife in the sum of $200.00 per month and support for the minor daughter in the amount of $50.00 per month, beginning January 1, 1965; and (4) awarded a fee for the attorneys for the wife in the amount of $500.00. It is from this order that the appellant prosecutes an appeal to this Court.

The first question for determination is whether the Circuit Judge erred, on appeal, in his conclusions as to the amount of alimony and attorneys fees that should be awarded to the appellant, the amount of support for the minor child and the visitation rights of the respondent when he made no findings of fact at variance to those found by the trial court.

The Greenville County Juvenile and Domestic Relations Court has original jurisdiction in divorce cases and such is concurrent with the Greenville County Court. Section 15-1281.9 of the Code. Any party aggrieved by an order or decree of the said court may appeal therefrom to the Circuit Court of the Greenville County Court. Section 15-1281.32 of the Code, as amended. The last cited section requires, in case of appeal, that the appellant 'shall state fully the grounds therefor.'

It is provided in Art. V, Section 15, of the 1895 Constitution that the Court of Common Pleas 'shall have appellate jurisdiction in all cases within the jurisdiction of inferior Courts, except from such inferior Courts from which the General Assembly shall provide an appeal directly to the Supreme Court.' Thus, it is clear that when this case was carried by appeal from the decree of the Juvenile and Domestic Relations Court of Greenville County to the Circuit Court, the latter could only exercise appellate jurisdiction therein. Since a hearing of the case in the Circuit Court is strictly on appeal, the presiding Judge is limited to a review of, and judgment on, the evidence taken below. Stewart v. Blease, 4 S.C. 37; Ex Parte White, 33 S.C. 442, 12 S.E. 5. The Circuit Court, hearing such an appeal, is limited to the consideration of such questions as are raised by the exceptions. Burns v. Gower, 34 S.C. 160, 13 S.E. 331. The rule announced in the case of Pinkussohn Cigar Co. v. Clyde Steamship Co., 101 S.C. 429, 85 S.E. 1060, is here pertinent. It was said:

'We do not agree with appellant that the court erred in giving due consideration to the findings of the trial court, and in not deciding the questions of fact anew from the evidence, as if there had been no findings thereon in the trial court. Appeals from the civil and criminal court of Charleston to the circuit court are heard upon the recore sent up, just as appeals from magistrates' courts are heard by the circuit court. The trial on appeal is not de novo. The circuit judge does not see and hear the witnesses, and, as rule, he does not know them, or their relative credibility, or the circumstances which might affect it, as well as the trial court and jury. Therefore, where the evidence is conflicting, or susceptible of more than one inference, the appellate court should give due weight to the findings of the triers of facts who had the advantages mentioned. The general rule in appellate courts is that the findings of the court below are prima facie correct, and the burden is upon the appellant to show that those excepted to are against the weight of the evidence.'

The general rule is that in a divorce 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. Where the findings of fact are by the Trial Judge himself, who had an opportunity of not only considering the testimony but also of viewing the parties and the witnesses and considering their attitudes in adjudging the veracity of their testimony, as in this case, makes for a still stronger application of the rule, that his findings will not be disturbed unless it appears that such are without evidentiary support or against the clear preponderance of the evidence. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225.

The appellant sought a divorce from the respondent because of his adulterous conduct. The Trial Judge awarded the appellant a divorce upon this ground. The finding was affirmed by the Circuit Court and there is no appeal therefrom. Hence, there is no issue made in this Court as to the right of the appellant to a divorce upon the ground stated.

The Trial Judge found that the custody of the minor daughter of the parties should be awarded to the appellant and that the respondent should have the right and privilege 'of visitation at his residence' with the minor child between the hours of 2:00 o'clock and 5:00 o'clock in the afternoon on the second and fourth Sundays of each month. There was no appeal by the respondent from the award of custody to the appellant. However, the respondent did appeal from so much of the order of the Trial Judge as limited his visitation rights with his minor daughter between the aforesaid hours. The Circuit Court changed this portion of the Trial Judge's order and granted to the respondent the right and privilege of visitation with his daughter between the hours of 2:00 o'clock P.M. Saturday and 5:00 P.M. Sunday...

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    • United States
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    • June 18, 1984
    ...to enter orders relating to the support of the children. Section 20-3-160, Code of Laws of South Carolina, 1976; Porter v. Porter, 246 S.C. 332, 143 S.E.2d 619 (1965). A spouse may, under certain circumstances, be granted the exclusive use of the marital home as an incident of support. Sect......
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