Smith v. Smith, 18979

• Decision Date: 05 November 1969
• Docket Number: No. 18979,18979
• Citation: 253 S.C. 350,170 S.E.2d 650
• Court: South Carolina Supreme Court
• Parties: Jeanette SMITH, Appellant, v. R. B. SMITH, Respondent.

Page 650

170 S.E.2d 650

253 S.C. 350

Jeanette SMITH, Appellant, v. R. B. SMITH, Respondent.

No. 18979.

Supreme Court of South Carolina.

Nov. 5, 1969.

Pope & Schumpert, Newberry, for appellant.

Richard T. Townsend, Laurens, for respondent.

BUSSEY, Justice.

This is an action for divorce, on the alleged ground of physical cruelty, instituted by the appellant wife on the 21st of November, 1967, and arising primarily out of an occurrence on November 11, 1967. On November 13th, an order of the trial court granted the wife temporary custody of the minor children of the parties. At the instance of the respondent husband, the trial court, on November 28, 1967, issued a rule directing the wife to show cause why the husband should not be granted reasonable rights of visitation. Apparently no hearing was held in connection with said rule, but counsel for the respective parties negotiated an oral agreement whereby, pendente lite, the husband was granted certain visitation rights, and agreed to pay $30.00 per week for the support of the two children.

The wife's complaint sought not only a divorce but permanent custody of the children, support for the children, a reasonable attorney's fee, and, specifically, an order of the court enjoining the husband from visiting her home or threatening, molesting, or harassing her or her family in any way. As in Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629 (1951), the allegations of the complaint were appropriate to an action for separate maintenance and support, the only distinction being that the wife here, being gainfully employed and self-supporting, sought support only for the children.

A hearing on the merits was held on April 1, 1968, and, after testimony was taken, oral arguments were heard in the course of which counsel for the wife specifically moved the court that she be granted a legal separation in the event the court concluded that the evidence did not warrant an absolute divorce. On May 20, 1968, the trial court filed a relatively brief order which denied a divorce and dismissed the action without passing upon any of the other issues raised by the pleadings and the evidence.

The order of the trial court contains neither any detailed findings of fact nor discussion of the applicable principles of law. Any and all pertinent findings of fact and conclusions of law on the part of the trial court are embodied in the following brief language:

'* * * the one act of physical abuse (which the plaintiff admits is the only instance in which the defendant has abused her and even this was not without provocation) does not constitute grounds for divorce under the divorce laws of this State, * * *.'

The appeal by the wife is based on numerous exceptions and the brief in her behalf states and argues five separate questions, which we, for convenience, reduce to two questions as follows: (1) Was there error in denying the wife a divorce a vinculo matrimonii? (2) Was there error in failing to pass upon and/or grant the relief which the wife sought other than the divorce? Since, in our view, the cause has to be remanded to the lower court for further proceedings, we limit our review of the evidence.

The only proved act of physical cruelty by the husband occurred on the night of November 11, 1967, when the husband beat or whipped the wife with a belt. The evidence is in some conflict as to the circumstances and extent of the whipping or beating. While a single act of physical cruelty, and the attendant circumstances may be serious enough to warrant a divorce on the ground of physical cruelty, 'It is generally held that a single act of physical cruelty does not ordinarily constitute ground for divorce, unless it is so severe and atrocious as to endanger life, or unless the act indicates intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future. A single act of aggravated cruelty may, however, warrant a divorce if accompanied with such precedent or attendant circumstances as to satisfy the court that such acts are likely to be repeated.' Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330, 15 A.L.R.2d 163 (1949).

The general rule is that divorce will not be granted on the ground of cruelty when such was provoked by the misconduct of the complainant. The conduct of the party who claims to have been provoked, however, may be out of all proportion to provocation, in which event provocation does not bar an action for divorce. Miller v. Miller, 225 S.C. 274, 82 S.E.2d 119 (1954). In the absence of specific findings of fact or discussion of the pertinent principles of law on the part of the trial court, it is impossible for this court to determine whether or not the trial court was, perchance, influenced and/or controlled by error of law in denying the divorce. Did the trial court conclude that a single act of physical cruelty, no matter how violent, could not be the basis for divorce? Did he, perchance, conclude that any slight provocation on the part of the complainant would be a bar? These questions naturally arise from his very brief and incomprehensible order.

The case being one in equity, this court of course 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 (1966); Todd v. Todd, 242 S.C. 263, 130 S.E.2d 552 (1963). This court, however, in reviewing factual matters in an equity case is not required to disregard findings of fact below and it is quite cognizant of the fact that the trial judge, who saw and heard the witnesses, was in better position than this court to evaluate their testimony and credibility. Inabinet v. Inabinet, 236 S.C. 52, 113 S.E.2d 66 (1960); Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171 (1961). Under the circumstances of the present case, we do not feel that this court would be warranted in finding the pertinent and controlling facts from a cold record, we not having the benefit of any specific findings of fact by the lower court, nor any expressions from that court evaluating the testimony and credibility of the various witnesses. We are of the...