Simonds v. Simonds

• Decision Date: 22 May 1956
• Docket Number: No. 17166,17166
• Citation: Simonds v. Simonds, 229 S.C. 376, 93 S.E.2d 107 (S.C. 1956)
• Parties: Frances R. SIMONDS, Appellant, v. John C. SIMONDS, Respondent.
• Court: South Carolina Supreme Court

Page 107

93 S.E.2d 107

229 S.C. 376

Frances R. SIMONDS, Appellant, v.John C. SIMONDS, Respondent.

No. 17166.

Supreme Court of South Carolina.

May 22, 1956.

Stoney & Crosland, Sinkler, Gibbs & Simons, Charleston, for appellant.

Buist & Buist, Thomas P. Bussey, Charleston, for respondent.

MOSS, Justice.

The appellant, Frances R. Simonds, and John C. Simonds, the respondent are husband and wife.They were married on November 12, 1930.

This action, which was instituted on December 7, 1953, is one for divorce on the ground of habitual drunkenness, Section 20-101(4), Code of 1952.The respondent denies that he is an habitual drunkard.The case was referred to the Master for Charleston County and after all of the testimony had been taken, the appellant was allowed to amend her complaint by adding thereto as an additional ground for divorce that of constructive desertion.

The Master of Charleston County filed his report recommending that the appellant be granted a divorce on the ground that the respondent was an habitual drunkard and that he was guilty of constructive desertion.He also recommended the allowance of a lump sum award of alimony and that he pay counsel fees of appellant's attorney.Upon exceptions by the respondent to the findings of fact and legal conclusions contained in the Master's Report, the Trial Judge held that the appellant was not entitled to a divorce on the ground of habitual drunkenness or constructive desertion.The case is before this court upon exceptions by the appellant to the Order of the Circuit Judge.This appeal may be disposed of by determining whether or not the appellant was entitled to a divorce on the grounds of habitual drunkenness or constructive desertion on the part of the respondent.

The Trial Judge found, and the record sustains such finding, that the appellant and respondent separated on December 17, 1952.At that time the wife left the home of the parties, and after being absent for a few days, the husband removed himself from the family home and took residence at the Fort Sumter Hotel in Charleston, thereupon the wife returned to the family residence and has lived there since.It is an admitted fact that from the time of the separation of the parties on December 17, 1952 until the commencement of the action that the respondent has wholly abstained from indulging in the use of alcoholic beverages.The respondent has been totally abstemious for approximately one year prior to the institution of this action for a divorce upon the ground of habitual drunkenness.Habitual drunkenness and abstemiousness for a long period of time are incompatible terms.The appellant bases her right to relief upon the existence of the former.The Trial Judge held that no divorce could be granted on the ground of habitual drunkenness unless it continues up to the time of the commencement of the action.

In the case of Fish v. Fish, 126 Me. 342, 138 A. 477, 54 A.L.R. 327, the Maine Supreme Judicial Court held that in order to justify a divorce for gross and confirmed habits of intoxication, the habits must continue up to the time of the filing of the libel.In this case there is cited a number of decisions from various courts confirmatory of this holding.We cite several of them.

In the case of Burt v. Burt, 168 Mass. 204, 46 N.E. 622, the Surpeme Court of Massachusetts, in dealing with this question where the statutory ground involved was 'gross and confirmed drunkenness, caused by the voluntary and excessive use of opinion or other drugs", St.Mass.1889, c. 447, had this to say:

'The decree which was entered, in view of the finding of the libelee's use of the drug after she left her husband, seems to be based upon this construction of the statute, namely, that the libelant would be entitled to a decree if at any time after the statute was in force the libelee was in the condition set forth in the statute, although the gross character of the use of the drug had become modified or had ceased when the libel was brought.We are of opinion that this view is erroneous.'Gross and confirmed drunkenness' is a condition, just as what is called in the Pub.St. c. 146, § 1, 'gross and confirmed habits of intoxication' is a condition.Substantially the same rules apply to both descriptions.Drunkenness cannot fairly be said to be gross and confirmed if at the time the libel is filed the character of the use of the intoxicant or drug has ceased for some length of time, so that it may fairly be found that the condition required by the statute no longer exists.The statute does not authorize a divorce on account of the use of a drug, but only for its abuse.The use must be excessive, and must produce a certain result, and this result must exist when the libel is filed.'

Likewise, in the cases of McCraw v. McCraw, 171 Mass. 146, 50 N.E. 526, andGowey v. Gowey, 191 Mass. 72, 77 N.E. 526, the Court reiterated that gross and confirmed habits of intoxication, in order to warrant a decree of divorce, must have existed when the libel was filed.This rule also was followed in Hammond v. Hammond, 240 Mass. 182, 132 N.E. 724.

In the case of Allen v. Allen, 73 Conn. 54, 46 A. 242, 49 L.R.A. 142, 84 Am.St.Rep. 135, where a statute provided that a divorce may be granted for 'habitual intemperance', the Court held that the cause must be 'found to exist at the time the decree is made * * * at the very time when the divorce is granted'.This rule has now been changed by amendment of the Connecticut Statute.

In Smithston v. Smithston, 113 Miss. 146, 74 So. 149, L.R.A.1917D, 361, where a divorce was sought upon the alleged cause of "habitual and excessive use of opium, morphine, or other like drug", the Court held that the habit must be fixed and must continue until the suit is brought.

In the case of McMahon v. McMahon, 170 Ala. 338, 54 So. 165, where the Alabama Statute authorized a divorce "For becoming addicted after marriage to habitual drunkenness", it was held that the habit must be fixed and must continue until the suit is brought.

In the recent case of Meares v. Meares, 256 Ala. 596, 56 So.2d 661, 662, it appears that the husband and wife were separated in Florida on November 20, 1949.The wife returned to her home in Alabama, and after one year as required by the statute of Alabama, she filed a bill for divorce on November 24, 1950, alleging that her husband became addicted after his marriage to habitual drunkenness.The court thought it sufficient to say as to the evidence that none was offered 'tending in any way to show that the habit of drunkenness continued until at or near the time of filing * * *.The testimony on this point ended as of the time of the separation in November, 1949, a year before the bill was filed.'The court then went on to say, '* * * the habit of drunkenness must have * * * continued until at or near the time of filing the bill for divorce'.

See also the cases of Meathe v. Meathe, 83 Mich. 150, 47 N.W. 109;Reynolds v. Reynolds, 44 Minn. 132, 46 N.W. 236;Youngs v. Youngs, 130 Ill. 230, 22 N.E. 806, 6 L.R.A. 548;Gourley v. Gourley, 16 R.I. 705, 19 A. 142; and the annotation 54 A.L.R. 331.

Nelson on Divorce, Volume I, Section 7.05 states that, 'Apparently it is the weight of authority that a condition of habitual drunkenness must have continued up to, and be existent at the time of, the filing of the libel.'Numerous cases, cited in the footnotes as authority for the quoted proposition, fully confirm the statement of law and not a single case is cited holding to the contrary.

Based upon the authorities heretofore cited and referred to, in order that a divorce may be granted on the ground of habitual drunkenness, such must exist at or near the time of the filing of the action for a divorce.It being admitted that the respondent had totally abstained from the use of alcohol in any manner for approximately a year after the separation of the appellant and respondent, the condition of habitual drunkenness did not exist at or near the time of the filing of this action.The Trial Judge properly held that a divorce could not be granted on the ground of habitual drunkenness.

We consider now the question of whether the court was in error in refusing to grant appellant a divorce from respondent on the ground of constructive desertion.It has heretofore been stated that the appellant left the joint home of herself and her husband on December 17, 1952 and that this action was commenced on December 7, 1953.If there was any constructive desertion it occurred on December 17, 1952.

In the case of Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629, 633, Mr. Justice Oxner states:

'It also might not be amiss to call attention to the fact that while the doctrine of constructive desertion is generally recognized, there is an irreconcilable conflict in the authorities as to the character of misconduct that must be shown to justify a divorce on this ground.Many courts hold that the abandoning party seeking to make a technical deserter out of the one abandoned must establish misconduct on the part of the other in itself, and independently, amounting to a ground for divorce.In other words, it is said that if the conduct complained of is not itself a sufficient cause for divorce, the courts cannot by indirection do that which is not authorized by statute.Among the states adopting this view are Virginia, New Jersey, Kentucky, Illinois and Arkansas.Other courts, such as Connecticut and Maryland hold that the conduct of one spouse compelling the other to leave may justify a divorce to that other on the ground of desertion, even...