Smith v. Smith, 19797

• Decision Date: 02 April 1974
• Docket Number: No. 19797,19797
• Court: South Carolina Supreme Court
• Parties: Clyde Daniel SMITH, Respondent, v. Kathy Sue SMITH, Appellant.

Page 53

204 S.E.2d 53

262 S.C. 291

Clyde Daniel SMITH, Respondent, v. Kathy Sue SMITH, Appellant.

No. 19797.

Supreme Court of South Carolina.

April 2, 1974.

Marshall W. Abercrombie, Laurens, for appellant.

W. Thurmond Bishop, Greenwood, for respondent.

MOSS, Chief Justice:

Clyde Daniel Smith, the respondent herein, and Kathy Sue Smith, the appellant herein, were married on February 18, 1959. Three children were born of this marriage, and at the time of the hearing their ages ranged from thirteen years to nine years.

The record shows that on March 27, 1972, the respondent petitioned the court for the right to live separate and apart from the appellant and for custody of the children. This action resulted in an order of the court granting the relief sought but giving legal custody of the children to the appellant and directing the respondent to pay $50.00 per week for the support of the three children. The appellant was also denied the right to either the title or possession of the family home for occupancy by her and the children.

The present action was instituted by the respondent against the appellant in the Family and Civil Court for Greenwood County, seeking a divorce A vinculo matrimonii on the ground of physical cruelty, Section 20--101(3) of the Code.

The appellant filed an answer denying the material allegations of the complaint and by way of counter-claim alleged that she was entitled to a divorce on the grounds of physical cruelty and adultery. She also sought (1) permanent custody of the minor children of the marriage; (2) support for the minor children in the sum of $80.00 per week; (3) exclusive possession and the conveyance of the respondent's interest in the family home together with the furniture and furnishings therein so that she and the minor children could have a place in which to live, in lieu of permanent alimony; (4) attorney's fees in the amount of $700; and (5) the payment of $25.00 per month medical, dental and hospital expenses for the eldest child.

The respondent, by his reply, denied the allegation of the counterclaim.

The case was heard by the Honorable J. Perrin Anderson, Judge of the Family and Civil Court for Greenwood County. After hearing the testimony he issued a decree granting the respondent a divorce A vinculo matrimonii on the ground of physical cruelty. He awarded 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. No attorney's fees were awarded counsel for the appellant in this action. It is from this decree that this appeal is prosecuted.

The appellant challenges the sufficiency of the evidence to support the finding of the lower court as to physical cruelty. We must view the evidence in the light of the rule set forth in the cases of Brown v. Brown, 215 S.C. 502, 50 S.E.2d 330, 15 A.L.R.2d 163; Barstow v. Barstow, 223 S.C. 136, 74 S.E.2d 541; and Brown v. Brown, 250 S.C. 114, 156 S.E.2d 641. A detailed review of the evidence in this case as to physical cruelty would serve no useful purpose. The burden was upon the husband to establish by the preponderance of the evidence the charges of physical cruelty against the wife. This Court has jurisdiction on appeal to find the facts in accordance with its view of the preponderance of the evidence. It is our view that the husband has failed to establish by the preponderance of the evidence that his wife has been guilty of physical cruelty, within the meaning of our divorce statute.

The appellant charges the trial judge with error in failing to grant her a divorce on the ground of adultery. In Odom v. Odom, 248 S.C. 144, 149 S.E.2d 353, we outlined what proof was necessary to support a finding of adultery. The burden here was upon the wife to establish by the preponderance of the evidence the charge of adultery against the husband. It is our conclusion, after reviewing the evidence in this case, that the wife has failed to establish by the preponderance of the evidence that her husband was guilty of adultery. It follows that there was no error on the part of the trial judge in refusing to grant a divorce to the wife on the ground of adultery.

It is the position of the appellant that the trial judge erred in failing to grant her more than the sum of $50.00 per week for support of her three minor children.

In the decree of May 10, 1972, granting the respondent the right to live separate and apart from the appellant, he was directed to pay $50.00 per week for the support of his three minor children. In this action the appellant alleges that she is now entitled to the sum of $80.00 per week for the support of the minor children because there has been a substantial change in circumstances since May 10, 1972. The trial judge in this action, by his decree of March 13, 1973, found as a fact that there had been no change of conditions which would justify an increase in the child support payments. The appellant, even though she has not specifically excepted to this finding of fact, argues that there has been a change of conditions entitling her to an increase in the support payments provided for in the original decree.

The trial court has authority to increase, decrease, or terminate, upon proper showing of a change of condition, the support payments provided for in a judgment of divorce. Section 20--115 of the Code. Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171; Porter v. Porter, 246 S.C. 332, 143 S.E.2d 619; and Graham v. Graham, 253 S.C. 486, 171 S.E.2d 704.

We have carefully reviewed the entire record in this case and conclude that there has been a change of circumstances and conditions since the order of May 10, 1972. These changes lead us to the conclusion that the award previously made was inadequate and should be increased by the trial court and such would serve the best interest of the children here involved. Upon remand the trial court should determine the amount that is adequate to now meet the reasonable needs of the children.

There is testimony by the appellant that she is in need of...