Sherbert v. Sherbert
| Decision Date | 05 January 1961 |
| Docket Number | No. 17730,17730 |
| Citation | 117 S.E.2d 715,237 S.C. 449 |
| Parties | J. A. SHERBERT, Jr., Appellant, v. Ruby Nell SHERBERT, Respondent. |
| Court | South Carolina Supreme Court |
Poliakoff & Poliakoff, Moore & Stoddard, Spartanburg, for appellant.
Arnold R. Merchant, Spartanburg, for respondent.
This action was brought on August 22, 1959 by a husband for a divorce on the grounds of adultery and desertion. He also asked that he be awarded custody of the children. His wife denied the charges made against her and interposed a counterclaim in the nature of a cross-action wherein she sought a divorce on the ground of physical cruelty. She also asked for separate maintenance and custody of the children.
The case was referred to the Master for Spartanburg County who after taking considerable testimony filed a report on March 15, 1960 in which he found that the husband had failed to establish the charge of adultery; that while the wife had left the home without just cause, the desertion had not continued for the required period of one year; and that the wife had failed to prove the charge of physical cruelty. He accordingly recommended that neither party be granted a divorce, that separate maintenance to the wife be denied, and that the custody of the children be given to the husband with visitation privileges to the wife. The case was heard by the County Judge on exceptions to the Master's Report. In an order filed on April 18, 1960, he agreed with the Master that the husband had shown no ground for divorce but held that the wife had established her charge of physical cruelty and was entitled to a divorce on that ground. At the time the action was commenced, there were only two children and proceedings relating to their custody were pending in the Children's Court of Spartanburg County. After the hearing before the Master a third child was born. The County Judge held that the question of custody of the two older children should remain in the jurisdiction of the Children's Court but that the mother was entitled to custody of the third child. He further required the husband to pay to his wife the sum of $10 weekly for her maintenance and that of the youngest child.
The case is here on appeal by the husband from the decree of the County Judge. He does not challenge the denial of the divorce sought by him. The only questions presented by his exceptions are whether the Court below erred in holding that his wife was entitled to a divorce on the ground of physical cruelty and whether there was error in granting her separate maintenance.
This action is one in equity. Section 20-105 of the 1952 Code; Harvey v. Harvey, 230 S.C. 457, 96 S.E.2d 469; Dobson v. Atkinson, 232 S.C. 12, 100 S.E.2d 531. We are, therefore, at liberty to review the facts and weigh the evidence. Since the Master and County Judge disagreed as to whether respondent had established her charge of physical cruelty, we shall determine the question according to our own view of the evidence. Troy Cemetery Association, Inc. v. Davis, 223 S.C. 305, 75 S.E.2d 458. In doing so, proper consideration must be given to the fact that, 'the Master saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observation of and contact with parties and witnesses which may be of peculiar value in arriving at a correct result in a case of this character.' Badder v. Saleeby, 131 S.C. 101, 126 S.E. 438, 440. Also, see Hughey v. Eichelberger, 11 S.C. 36; Taylor v. Barker, 30 S.C. 238, 9 S.E. 115.
Both appellant and respondent are natives of Spartanburg County. They were married on April 28, 1952. He was then 36 and she 14 years of age. They lived in a rural section of Spartanburg County and he worked in a textile plant. It was not long before discord developed. They have been separated four or five times, the first occurring about a year after they were married. The fourth took place in January, 1959. Shortly after this separation, appellant brought a proceeding in the Children's Court of Spartanburg County to obtain custody of their two children, who at that time were approximately two and four years of age. In an order filed on March 6, 1959, the Judge of that Court awarded custody to the mother. In a subsequent order on May 8, 1959, custody was given to the father, principally because respondent had left the home of her parents and was the living alone in a rooming house. On June 28, 1959, respondent returned to appellant's home and they lived together about a month before the final separation. It was apparently during this period that respondent became pregnant with the third child.
Respondent contends that on each occasion when they separated she was compelled to leave because he 'beat her up'. However, she also complains that on numerous occasions he left home at night under the pretext of going to feed the cows and would not return until about bedtime, and that he never went out with her in the evenings. The following is taken from her testimony in the Children's Court, which was made a part of the record:
In the instant action, she testified:
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Ex parte Atkinson
...shall determine the question according to our own view of the evidence. Harvey v. Harvey, 230 S.C. 457, 96 S.E.2d 469; Sherbert v. Sherbert, 237 S.C. 449, 117 S.E.2d 715. When considering the question of the custody of a child between estranged parents, the recommendation of the Master is e......
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Hodges v. Hodges
...parties and witnesses which may be of peculiar value in arriving at a correct result in a case of this character. See Sherbert v. Sherbert, 237 S.C. 449, 117 S.E.2d 715, and cases therein With reference to the habitual drunkenness and physical cruelty with which the husband is charged, the ......