Powell v. Powell, 17297

Citation98 S.E.2d 764,231 S.C. 283
Decision Date30 May 1957
Docket NumberNo. 17297,17297
PartiesLois Williams POWELL, Respondent v. Dwayne POWELL, Appellant.
CourtUnited States State Supreme Court of South Carolina

Julien D. Wyatt, Felix L. Finley, Jr., John T. Gentry, Pickens, for appellant.

W. G. Acker, Pickens, J. Wiley Brown, Greenville, for respondent.

STUKES, Chief Justice.

The respondent brought this action against appellant for divorce upon the ground of physical cruelty. Appellant answered and counterclaimed for divorce from the appellant upon the ground of her adultery. The custody of their daughter, who is now about three years old, was also an issue. The parties were each sixteen when they married.

A great deal of testimony was taken by the special referee, to whom the issues were referred, and he found against the contentions of respondent with respect to her alleged ground for divorce; and, on the contrary, that she was guilty of adultery which entitled appellant to divorce from her. He concluded further that in view of respondent's conduct and example, it would not be for the best interest of the child for her to be awarded custody of the latter. He found that appellant, the father of the child, plans to keep it at the home of his parents which will be a suitable place for it except that the house is small, which can be remedied by appellant and that will be his duty, within his means. Appellant's father owns the home. The referee recommended that the privilege of visiting her child at reasonable times be extended to respondent.

Upon exceptions to the report it was sustained by the court except as to the custody of the child, wherein the referee was reversed and custody was awarded to respondent, except one week of each month when the child should visit appellant who was ordered to pay $12.50 per week for support of it, excluding the weeks when the child should be visiting with him.

Respondent did not appeal from the judgment that her action for divorce was dismissed and appellant granted divorce from her on the ground of her adultery. Thus she is an adjudicated adulteress. The appeal relates only to the provision of the decree with respect to the custody of the child.

The award of the custody of the child to respondent must be reversed. As found by the lower court upon the record, there is no perfect solution of the question of custody. However, appellant's moral character and personal habits are not seriously impeached by the evidence, and he was not found by the lower court to be unfit to have the custody of his child; he works and earns substantial wages, as does his father who is a well-paid foreman of long experience in a textile mill. The testimony of appellant's parents, in whose home he proposes to keep the child, is convincing that they are people of at least average respectability, who love their granddaughter and will cooperate with appellant in affectionate care of her. They are young grandparents, being in their early forties; and she is not employed outside of the home. The most of the foregoing, at least, cannot be said of the formerly divorced mother and the step-father of respondent, in whose home respondent would probably keep the child if custody of it were awarded to her. The welfare of the child is paramount and we cannot hold that it would be best assured by confiding custody to respondent whose life has been characterized by sexual immorality. Moreover, she works and would not be able to give her child constant care.

It is usual for the custody of children of divorced parents to be awarded to the parent who is innocent of the conduct which led to the divorce. 27 C.J.S. Divorce § 309e, p. 1175: 'Preference should be given to the party not at fault, and the custody of the child is usually awarded to the party who prevails in a suit for divorce * * *. In some jurisdictions * * * a divorce on the ground of adultery is a conclusive adjudication of the guilty party's unfitness to have custody.' 17 Am.Jur. 518, Divorce and Separation, Sec. 683: 'Other considerations being equal * * * it is usual to award custody of children to the innocent spouse.'

It is unusual, but by no means unprecedented, for the custody of children of tender years to be awarded to the father rather than to the mother. 27 C.J.S. Divorce § 309c, p. 1172. Always, the controlling consideration is the welfare of the children. 'This right of the mother (to the custody of children of tender years) may be recognized although she is the party in fault, if such fault does not reflect on her moral character.' (Emphasis added.) 17 Am.Jur. 518, Sec. 683.

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5 cases
  • Moore v. Moore, 17594
    • United States
    • South Carolina Supreme Court
    • December 15, 1959
    ...respondent's right to the custody of her small child, if otherwise entitled as he found, and we affirm, her to be. Cf. Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764, and cases Also argued under this question and made the subject of the sixth question is the following proffer of evidence in ......
  • Peay v. Peay
    • United States
    • South Carolina Supreme Court
    • February 8, 1973
    ...consideration of the Court in all child custody controversies. Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89 (1943); Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764 (1957); Pullen v. Pullen, 253 S.C. 123, 169 S.E.2d 376 (1969). In many cases, this Court has applied what we refer to as the tender y......
  • Todd v. Todd, 18057
    • United States
    • South Carolina Supreme Court
    • April 18, 1963
    ...in all controversies between parents over the custody of their minor children. Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89; Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764; Moore v. Moore, 235 S.C. 386, 111 S.E.2d 695; and Ex Parte Atkinson, 238 S.C. 521, 121 S.E.2d 4. Our statute, Section 31-51......
  • Ford v. Ford, 18066
    • United States
    • South Carolina Supreme Court
    • May 6, 1963
    ...in all controversies between parents over the custody of their minor children. Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89; Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764; Moore v. Moore, 235 S.C. 386, 111 S.E.2d 695; and Ex Parte Atkinson, 238 S.C. 521, 121 S.E.2d 4. Our statute, Section 31-51......
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