Smith v. Smith
| Decision Date | 19 June 1975 |
| Docket Number | No. 20043,20043 |
| Citation | 216 S.E.2d 541,264 S.C. 624 |
| Court | South Carolina Supreme Court |
| Parties | Clyde Daniel SMITH, Respondent, v. Kathy Sue SMITH, Appellant. |
Marshall W. Abercrombie, Laurens, for appellant.
W. Thurmond Bishop, Greenwood, for respondent.
Clyde Daniel Smith, the respondent herein, on March 27, 1972, petitioned the Family and Civil Court for Greenwood County for the right to live separate and apart from his wife, Kathy Sue Smith, the appellant herein, and for custody of their three minor children. The court granted the relief sought but gave custody of the children to the appellant and directed the respondent to pay $50.00 per week for their support. The appellant was also denied the right to either the title to or possession of the family home for occupancy by her and the minor children.
Subsequently, the respondent instituted this action seeking a divorce a Vinculo matrimonii on the ground of physical cruelty, Section 20--101(3) of the Code. This action resulted in a decree granting the respondent such divorce and awarding the custody of the minor children to the appellant with support payments in the amount of $50.00 per week. The appellant's claim to possession of the home as her alimony was denied as was her claim for attorney's fees. The wife prosecuted an appeal to this Court from such decree, and the order of the lower court was reversed in part and the case remanded thereto for further proceedings in conformity with our opinion. Smith v. Smith, 262 S.C. 291, 204 S.E.2d 53.
In reversing the lower court, we held that: (1) The husband failed to establish by the preponderance of the evidence that his wife had been guilty of physical cruelty within the meaning of our divorce statute; (2) The wife failed to establish by the preponderance of the evidence that her husband was guilty of adultery; (3) The award of $50.00 per week for the support of the minor children of the marriage was inadequate and should be increased in order to meet the reasonable needs of the children; (4) Consideration should be given to the question of whether the appellant was in need of additional funds for the straightening of the teeth of two of the children; (5) A reconsideration was necessary on the question of whether the appellant is entitled to an award of alimony; and (6) The trial judge should fix an appropriate fee for the wife's attorney, such to be paid by the husband.
Pursuant to the mandate of this Court, the trial judge conducted a hearing at which additional testimony was offered by all parties. Thereafter, the trial judge filed his order (1) increasing the support payments for the minor children to $70.00 per week plus 3% Collection costs, or a total of.$72.10; (2) denying the wife alimony and possession of the home owned by the husband; (3) continuing the custody of the children with the wife but providing the father visitation rights; (4) giving the wife possession of all the furniture and household furnishings in the home of the husband with the exception of one bedroom suite; (5) refusing to require the husband to make any further payment on the dental expenses of the children at the present time; and (6) awarding the wife's attorney the additional fee of $350.00, making a total of $700.00. This appeal followed.
The appellant alleges error on the part of the trial judge in failing to grant more than $70.00 per week for the support of the three minor children.
The rule in this State is well settled that the amount to be awarded for alimony and child support, as well as a determination of whether the wife is entitled to alimony at all, is within the sound discretion of the trial judge. Such will not be disturbed on appeal unless an abuse of discretion is shown. In determining the proper amount for such awards the court should consider not only the needs of the children but also the ability of the father to pay and all other surrounding circumstances. Lowe v. Lowe, 256 S.C. 243, 182 S.E.2d 75.
In Graham v. Graham, 253 S.C. 486, 171 S.E.2d 704, we said:
It is the position of the appellant that the support for the minor children should have been fixed at $80.00 per week. The evidence reveals that the father had a gross income from his regular and overtime work for the year 1973 in the amount of $10,738.55, from which was deducted the total $1,973.67, representing social security, state and federal income taxes, leaving a net income of $8,764.88, or an average weekly wage of $168.56. After deductions for taxes and social security, the father's net pay from January 1, 1974 to May 14, 1974, the date of this trial, ranged from $158.68 to $161.94 per week. Testimony shows the average weekly expenses of the father to be as follows:
Mortgage home payment $17.91
Life insurance on father and children 4.79
Vehicle liability insurance 5.52
House insurance 2.60
Electrical service 8.75
Telephone 2.62
Gasoline (estimated) 10.00
Food 10.00
Tax on home 2.92
Credit Union payment 50.00
City fire protection .54
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TOTAL $115.65
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