Simons v. Simons

• Decision Date: 27 January 1975
• Docket Number: No. 19949,19949
• Citation: 263 S.C. 509,211 S.E.2d 555
• Court: South Carolina Supreme Court
• Parties: Marian B. SIMONS, Respondent, v. Charles H. SIMONS, Appellant.

Page 555

211 S.E.2d 555

263 S.C. 509

Marian B. SIMONS, Respondent, v. Charles H. SIMONS, Appellant.

No. 19949.

Supreme Court of South Carolina.

Jan. 27, 1975.

N. H. Hamilton and Thomas G. MacGregor, Summerville, and Frank K. Sloan, Columbia, for appellant.

Hans F. Paul, Paul & Belk, Charleston Heights, for respondent.

MOSS, Chief Justice:

Marian B. Simons, the respondent herein, instituted this action against her husband, Charles H. Simons, the appellant herein, for a divorce a Vinculo matrimonii upon the ground of physical cruelty. Section 20--101(3) of the Code. The respondent further asked for custody of their child, Charles Daniel Simons, support for him, alimony, attorney fees, and injunctive relief. The appellant, by his answer and counterclaim, filed a general denial and asked for dismissal of the complaint, the custody of the minor child and like injunctive relief against the respondent.

The issues made by the pleadings were referred for trial to the Master in Equity for Dorchester County, who held several evidentiary hearings and thereafter filed his report, a portion thereof being as follows:

'I have reviewed the pleadings of the parties. I have reviewed the minutes of the hearing. I have reflected upon the testimony of the parties and their witnesses to support their respective positions. Not only did I hear the testimony of the witnesses, but also observed the witnesses while giving testimony. I observed the demeanor of the witnesses and considered their bias or prejudice of all or any part of the testimony. I am of the opinion that the Plaintiff has met the required burden of proof to sustain her cause of action for a divorce absolute on the grounds of physical cruelty. I find that the Plaintiff has proven her cause of action by the greater weight or the preponderance of the evidence. No further corroboration of her testimony is necessary to this end.'

The Master also recommended that the custody of the minor child be given to the respondent and that the appellant be required to contribute the sum of $30.00 per week for support and maintenance together with the payment of all medical and dental expenses. He further recommended that the appellant be granted visitation privileges with the minor child on alternate Saturdays and Sundays in the afternoon between noon and 6:00 p.m. of the same day. He recommended that the parties to this action be restrained from interfering with, molesting, or harming each other. He also recommended that the appellant be required to pay a certain sum toward the legal fees of his wife's attorney.

The appellant timely filed exceptions to the report of the Master, and the matter was heard by the Honorable Louis Rosen, Resident Judge, who thereafter filed a decree confirming the report of the Master except as to the payment of legal fees and periods of visitation of the appellant with his minor child. By this order the appellant was granted visitiation privileges with his minor son on alternate Saturdays and Sundays between 10:00 a.m. and 6:00 p.m. of the same day. The trial judge also modified the award as to attorney fees.

The husband has appealed from the foregoing judgment questioning: (1) the sufficiency of the evidence to support the findings of the lower court as to physical cruelty, there being no findings of specific acts thereof; (2) the lack of any evidence corroborating such finding; (3) the award of custody of the minor child of the marriage to the respondent, she being unfit to have custody because of emotional problems; (4) the allowance of maintenance and support for the minor child; (5) the failure to award the custody of the minor child to the appellant; (6) the imposition upon the appellant of extremely limited rights of visitation with his child; and (7) the award of attorney fees to counsel for the respondent.

The burden was upon the wife to establish by a preponderance of the evidence the charge of physical cruelty against the husband. This carried with it the necessity of presenting corroboration of the material allegations of her complaint or an explanation for its absence. However, the rule requiring corroboration is not inflexible, and may be relaxed where the circumstances of the particular case so warrant. Brown v. Brown, 250 S.C. 114, 156 S.E.2d 641.

Physical cruelty, as used in the divorce law, has generally been defined by our courts as actual personal violence, or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe. With this definition, we are in accord. In determining what acts constitute cruelty under our statute authorizing a divorce, regard must be had, not only to the provisions of the statute, but also to the circumstances of each particular case. Godwin v. Godwin, 245 S.C. 370, 140 S.E.2d 593.

The evidence in this case is in sharp conflict, the respondent testifying to acts of physical cruelty and an absolute denial thereof by the appellant. We have examined the report of the Master and the decree of the trial judge and neither contains any analysis of the evidence nor any specific findings of fact, stating only as a conclusion that the respondent was entitled to a divorce on the ground of physical cruelty. Since neither the report of the Master nor the decree contained sufficient pertinent relevant findings of fact, it is impossible to know what fact was the foundation for the decree. The Master's report was clearly not in compliance with Section 10--1412 of the Code.

In Elrod v. Elrod, 230 S.C. 109, 94 S.E.2d 237, we held that where a special referee made no effort to state the facts found by him, but only found as a fact that the material allegations of the complaint were true and correct, such general conclusion fell far short of compliance with this section.

The case here being one in equity, this Court has jurisdiction on appeal to find the facts in accord with its view of the preponderance of the evidence. Odom v. Odom, 248 S.C. 144, 149 S.E.2d 353. The appellant asks this Court to exercise that power and make the requisite finding. To do so would require us to consider a 345 page printed record. We prefer, in this case, to follow the procedure outlined in Smith v. Smith, 253 S.C. 350, 170 S.E.2d 650, where Justice Bussey, in writing for a unanimous court, said:

'Under the circumstances of the present case, we do not...