Todd v. Todd, 18057

• Decision Date: 18 April 1963
• Docket Number: No. 18057,18057
• Citation: 130 S.E.2d 552,242 S.C. 263
• Parties: Henry Thomas TODD, Respondent, v. Ruby Lee Holt TODD, Appellant.
• Court: South Carolina Supreme Court

Page 552

130 S.E.2d 552

242 S.C. 263

Henry Thomas TODD, Respondent, v. Ruby Lee Holt TODD, Appellant.

No. 18057.

Supreme Court of South Carolina.

April 18, 1963.

H. T. Abbott, Conway, McEachin, Townsend & Zeigler, Florence, for appellant.

Yarborough & Parrott, Florence, for respondent.

MOSS, Justice.

Henry Thomas Todd, the respondent herein, on August 30, 1961, instituted this action for a divorce a vinculo matrimonii rom his wife, Ruby Lee Holt Todd, the appellant herein, on the ground of desertion; Section 20-101(2) of the 1952 Code of South Carolina; or in the alternative for a legal separation. He also asks that custody of the three minor children of the marriage be awarded to him. The appellant, by her answer, denied that she had deserted her husband and affirmatively alleged that she was entitled to the custody of the children; that she be granted support and maintenance for herself and the children and for a reasonable attorney's fee for her counsel.

This case was tried before the Honorable W. T. McGowan, Jr., Judge of the Civil Court of Florence, and, on May 28, 1962, he issued an order denying the divorce, giving custody of the children to the respondent and his parents during the nine months school term of each year, with visitation rights to the appellant during such period, and giving custody of the children during the summer months to the appellant and her parents, with visitation rights to the respondent. The order also granted support and maintenance for the children while they are in the appellant's custody. The Trial Judge allowed the attorneys for the appellant a fee of $250.00 for their services to her. The Trial Judge denied any support for the appellant. The appeal to this Court is from the foregoing order.

The first question for determination is whether or not the Trial Judge erred in failing to give primary custody of the three minor children of the marriage to the appellant.

This action is one in equity. Section 20-105 of the 1952 Code. It is the established law in this State that in an equity case this Court may reverse the findings of fact of a Judge of a County Court when the appellant satisfies this Court that the findings of the Trial Judge are without evidentiary support or are against the clear preponderance of the evidence. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225, and Oswald v. Oswald, 230 S.C. 299, 95 S.E.2d 493.

We have held in numerous cases that the welfare of the children and what is for their best interest is the primary, paramount, and controlling consideration of the Court in all controversies between parents over the custody of their minor children. Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89; Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764; Moore v. Moore, 235 S.C. 386, 111 S.E.2d 695; and Ex Parte Atkinson, 238 S.C. 521, 121 S.E.2d 4. Our statute, Section 31-51 of the 1952 Code, puts the father and mother upon parity with respect to the legal right of custody of their children and, further expressly provides, as all of our pertinent decisions hold, that the welfare of the children is the first consideration of the Court.

The parties to this action were married on December 3, 1950. Three children were born of this marriage, two boys, now eleven and nine years old, respectively, and one girl, now five years old. These children, at the time of the trial, were residing with the parents of the husband near Loris, South Carolina. The two boys were taken to the home of the husband's parents on August 29, 1961, and the girl has been in the home since she was fourteen months old.

The parties to this action lived together in the same house in Florence, South Carolina, until August 30, 1961, when the respondent left the home of the parties and took up residence in the dormitory of the Young Men's Christian Association in the City of Florence. Admittedly, the respondent has not furnished the appellant any support and she is now living in Conway, South Carolina, in a home built for her by her father and is receiving her support from him.

It is undisputed that the appellant had a mental illness which required her confinement in the State Hospital in Columbia, South Carolina, for a period of seven or eight months and she was released therefrom on or about June 13, 1960. The appellant returned to her home in Florence upon her release from the hospital and lived in the home with the respondent until their separation on August 30, 1961. While the appellant was in the State Hospital, the respondent took care of the two boys with the aid and assistance from employed domestic help.

It is the contention of the respondent, and he testified that upon the return of the appellant from the State Hospital that she completely withdrew herself from him and lived separate and apart, sleeping by herself in a separate bedroom. He asserts that she has refused to cook meals or wash clothes for the respondent or the children, or to perform any household duties for the comfort and welfare of the family. The respondent also testified that even though the parties were living together in the same house they did not cohabit as man and wife.

After the appellant returned from the State Hospital in June, 1960, she was under the care of a physician and saw him every two or three weeks. In the fall of 1960, a hysterectomy was performed upon the appellant.

It is a fact that while the appellant was confined in the State Hospital that the respondent employed a domestic servant to perform household duties. When the appellant returned from the hospital, the respondent discharged such servant and placed the entire burden of care of the house and children upon her while she was a convalescent. Even though the mother of the appellant offered to pay for a servant to assist the appellant in her household duties, the respondent refused to permit such.

The appellant alleges that during the time she was confined in the State Hospital and thereafter, that the respondent consorted with other women. We point to the testimony of the respondent upon this issue: 'Q. What women are you going with now and who were you going with then? A. I have several old friends I saw occasionally. I have no regular girl friend.' There is also testimony of a relationship of the respondent with a Mrs. Bishop, a divorcee. The respondent admits that he and the boys stayed at the Bishop home for three nights. He denied any improper relations but did testify as follows: 'Q. Is Mrs. Bishop related to you? A. No. Q. Is she a friend of yours? A. Very close friend. Q. Is she a friend of Mrs. Todd? A. I hardly think so.'

The appellant contends that the respondent instituted this action for a divorce primarily for the purpose of marrying some other woman. She contends that the conduct of her husband was designed to alienate the natural affection of the children towards her and to aggravate her mental condition. She asserts that he even suggested that she commit suicide. The appellant testified that her husband told their sons, 'Let's get a new mother.' When the respondent was asked if he made such a remark, he replied, 'I had made a remark in a joking way with them. I had never made that remark with the intention of doing it.' The wife testified that her husband put a butcher knife in her hand and said, 'Go on and kill yourself.' When cross-examined as to this incident, the husband testified that his wife had made threats that she would take her own life, and when asked, 'Didn't you encourage her?' he answered, 'I told her if she wanted to do it to go ahead. I didn't encourage it.' The wife testified that her sons slept in a separate bedroom 'locking themselves up in the room' and that they did so at the instruction of the father. When he was cross-examined thereabout, he responded, 'I did not instruct them to lock the door. They didn't like for her staying with them like she did. I didn't tell them to lock the door. I told them if they wanted to lock it, they could lock it.' The wife testified that when she came back from the State Hospital she took over the household duties, including the preparation of meals for the family, and that on one occasion when she had prepared supper for the family he stated that he was not going to eat the food because she might put poison in it; that on this particular occasion when the supper was on the table, the husband and the children refused to eat it and he prepared another meal. When asked about this incident, he denied that he stated that the wife might poison the food but, with reference to the children, he said: 'If they didn't want to eat it, they didn't have to do it.' There is also testimony that the husband so connected a radio in the garage that when the switch was thrown inside of the house, the radio would go into operation, and that the husband told his wife if she was hearing voices that meant that she was cracking up or crazy. When cross-examined about this situation, the husband admitted that he did have a radio out in the garage and that he probably left it on but for no particular reason. He explained that the children would go out and turn it on after he had gone to work.

The only actual testimony that the appellant was not performing necessary household duties is the uncorroborated testimony of the respondent. The appellant's testimony that she performed her household duties in a satisfactory manner is corroborated by her mother and father, brother, sister, and another witness who was not related to her.

The father and mother of the respondent were at the time of this hearing 68 and 73 years old, respectively. They reside on a twenty-six acre farm seven miles south of Loris. It was testified that the children go to school every day and to...