Thomson v. Thomson
| Decision Date | 25 April 2008 |
| Docket Number | No. 4378.,4378. |
| Citation | 377 S.C. 613,661 S.E.2d 130 |
| Parties | Amy Bailey THOMSON, Respondent v. Colin Andrew THOMSON, Appellant. |
| Court | South Carolina Court of Appeals |
J. Benjamin Stevens, of Spartanburg, and John S. Nichols, of Columbia, for Appellant.
Richard H. Rhodes, of Spartanburg, for Respondent.
Colin Thomson (Husband) appeals from the final order of the family court granting Amy Thomson (Wife) a divorce on the ground of physical cruelty and ordering him to pay: (1) $99 per week in child support; (2) one-half of accumulated marital debt; (3) thirty-six percent of the children's future uninsured medical bills; and (4) $5,000 toward Wife's attorneys' fees. Husband also appeals the court's declaration that Wife owned all the property in her possession. We affirm.1
In February 2004, Husband and Wife met on a dating website. Wife held a master's degree and worked as a college swim coach and teacher. She owned a furnished home in Spartanburg, South Carolina. Husband, a Canadian citizen, worked in furniture sales. Prior to their marriage, Wife agreed to sponsor Husband's application for a visa. After their August 2004 marriage, Husband moved into Wife's home. Wife worked two jobs; however, Husband delayed submitting his visa application until February 2005 and, consequently, remained unemployed until May 2005.
Shortly after their marriage, Wife became pregnant. Her pregnancy was considered "high-risk" because she was thirty-seven years old and expecting twins. The children were born six weeks prematurely and remained in the newborn intensive care unit for twelve days. After Wife returned to work, wife's mother Carrie Bailey, who had moved from Michigan to the home to help care for the children, remained in the home to provide child-care.
On August 18, 2005, Wife filed a complaint seeking: (1) a divorce on the ground of physical cruelty; (2) sole custody of the children; (3) equitable division of marital debt; (4) child support; and (5) attorneys' fees. While Wife and the children were attending a function at Wife's school, Husband vacated the home and removed numerous items of Wife's personal property. Based upon Wife's motion for emergency relief, wherein she claimed Husband had become "volatile and irrational," the family court issued an ex parte order that mutually restrained Husband and Wife from interaction, temporarily restrained Husband from contact with the children, and granted Wife temporary custody.
At a subsequent hearing, the family court, finding Husband was not an immediate threat to the children or a flight risk, granted him unsupervised visitation. Further, the family court ordered Husband to pay child support of $133 per week, to return the personal property he removed from Wife's home, and it imposed a mutual restraining order.
Ultimately, the family court issued a final order granting Wife a divorce on the ground of physical cruelty, sole custody of the children, and $5,000 toward her attorneys' fees. Husband was awarded visitation within the United States, and was ordered to pay child support of $99 a week, in addition to thirty-six percent of the children's future medical bills that were not covered by insurance. The court also ordered Husband and Wife to divide their accumulated marital debt and the children's unpaid medical bills. Additionally, the court declared Wife owned all of the property in her possession as well as the property the court had previously ordered Husband return to her. Husband's appeal followed.
A divorce action is a matter in equity heard by the family court judge; on appeal, the court's scope of review extends to the finding of facts based on its own view of the preponderance of the evidence. McLaughlin v. McLaughlin, 283 S.C. 404, 405-06, 323 S.E.2d 781, 782 (1984). However, our broad scope of review does not require us to disregard the findings of the family court or to ignore the fact that the trial judge saw and heard the witnesses and was in a better position to evaluate their credibility and assign comparative weight to their testimony. Tinsley v. Tinsley, 326 S.C. 374, 380, 483 S.E.2d 198, 201 (Ct.App.1997).
Husband contends the family court erred in granting Wife a divorce on the ground of physical cruelty. We disagree.
Physical cruelty is "actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe." Brown v. Brown, 215 S.C. 502, 508, 56 S.E.2d 330, 333 (1949). In considering what acts constitute physical cruelty, the court must consider the circumstances of the particular case. Gibson v. Gibson, 283 S.C. 318, 322, 322 S.E.2d 680, 682 (Ct.App.1984).
In Gibson, the husband appealed a family court order denying him a divorce on the ground of physical cruelty after his intoxicated wife allegedly locked herself in the bedroom and shot a rifle into the closed door. The husband claimed a splinter from the door struck him in the face; however, his wife claimed he was in a different room when she fired the gun. Id. at 322, 322 S.E.2d at 682. The family court held that because the husband was not physically injured, the wife's conduct did not constitute physical cruelty. Id. at 322, 322 S.E.2d at 683.
Prior to Gibson, no South Carolina case directly addressed whether it was necessary for a spouse to prove bodily injury when seeking a divorce on the ground of physical cruelty. Id. at 323, 322 S.E.2d at 683. On appeal, the Gibson court conducted an extensive review of the applicable case law and held:
[I]f the wrongful act involves actual violence directed by one spouse at the other, "bodily injury" is not required in order to find "physical cruelty." A single assault by one spouse upon the other spouse, then, can constitute a basis for a divorce on the ground of physical cruelty; however, the assault must be life threatening or it must be either indicative of an intention to do serious bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future.
Id. at 323, 322 S.E.2d at 683 (emphasis in original).
The Gibson court found that although the wife committed a single act of "actual violence" by firing the rifle, it was unclear whether her act was one of "actual personal violence" directed against Husband. Id. at 323-24, 322 S.E.2d at 683. The Gibson court remanded the case to the family court for findings regarding the credibility of the parties and the circumstances surrounding the wife's firing the gun. Id. at 324, 322 S.E.2d at 683-684. See Lucas v. Lucas, 279 S.C. 121, 302 S.E.2d 863 (1983) (); see also McDowell v. McDowell, 300 S.C. 96, 99-100, 386 S.E.2d 468, 470 (Ct.App.1989) ().
Here, Wife testified Husband first physically abused her in February 2005, when she was pregnant with twins. Wife stated she and Husband argued over their finances, and she had gone into the bedroom to calm down when "he came in there and I mean basically pulled me off the bed three times by my legs." Husband, meanwhile, testified Wife kicked him as he tried to retrieve bills from under the bed, and he admitted he responded by pulling her off the bed by her legs. After this altercation, Husband and Wife separated briefly; however, Wife said Husband returned a week later, "against [her] wishes."
Wife also testified Husband "roughed her up" on her wrist and breast and shattered a glass picture on her stomach; however, the record does not indicate when these alleged acts of physical violence occurred. Husband admitted "[t]here was an incredible amount of physical violence in the house" and contended Wife physically abused him by throwing juice at him and punching him in the stomach. Wife admitted throwing juice at Husband after he told her he never wanted to marry her, but she denied ever hitting him.
Where issues relate to proof regarding which party, if either, is entitled to a divorce, and the evidence is in conflict and susceptible to different inferences, "it becomes the duty of the trial judge to determine not only the law of the case but the facts as well" because the judge observed the witnesses and could "attach[ ] to each one's testimony such credence as was due." Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985). Here, the family court's final order noted its "particular attention to the demeanor of the party [testifying] and the substance of that testimony" and stated concerns regarding the credibility of Husband's testimony and the testimony of Husband's only witness, his brother. By contrast, the court's order did not express concerns regarding Wife's credibility.
Given Wife's condition at the time of the alleged act of physical violence, Husband's acknowledgement that there was a great deal of physical violence in the home, and the fact that the family court judge had the opportunity to observe the demeanor of the parties, we find sufficient evidence in the record to support the family court's decision to grant Wife a divorce on the ground of physical cruelty.
Husband claims that even if his acts rose to the level of physical cruelty, the evidence shows Wife condoned his misconduct when she allowed him to move back into the marital residence. We disagree.
"Ordinarily condonation is an affirmative defense that must be pleaded." McLaughlin v. McLaughlin, ...
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