Wise v. Wise

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtPOPE
Citation38 S.E. 794,60 S.C. 426
PartiesWISE . v. WISE.
Decision Date18 April 1901

38 S.E. 794
60 S.C. 426

WISE .
v.
WISE.

Supreme Court of South Carolina.

April 18, 1901.


ALIMONY — DESERTION — CONDONATION — CRUELTY—SÆVITIA—THREATS—REASONABLE APPREHENSION.

1. Where plaintiff's husband moved to another part of the state, and requested her to accompany him, which she refused to do, such removal did not constitute desertion by the husband, so as to entitle plaintiff to a decree for, alimony, since the husband was entitled to select the family domicile.

2. Where defendant deserted plaintiff, and went to another state, where he began suit for divorce, which he afterwards dismissed, the subsequent reconciliation of the parties, and their living together as husband and wife, condoned the offense of desertion, so that it could not be made the basis of a suit for alimony.

3. That a husband indulges in loud and profane talking, "sallies of passion, " and threats which create no serious apprehension of bodily harm, are not sufficient to amount to the saevitia of the civil law, and hence will not entitle the wife to a decree for alimony.

4. A husband's refusal to allow his wife to put a clean tablecloth on the table, and requiring her to use a carpet for a tablecloth, while very reprehensible, are not legal cruelty, entitling her to a decree for alimony.

5. The rule that a wife is entitled to alimony where the husband "practices such obscene and revolting indecencies in the family circle that a pure-minded woman would find these grievances more intolerable than the most cruel inflictions on her person" contemplates the doing of some act, and a wife is not entitled to alimony because profane, reproachful, and insulting language is used by the husband.

Pope, J., dissenting.

Appeal from common pleas circuit court of Richland county; O. W. Buchanan, Judge.

Suit by Harriet O. Wise, by her guardian p.d litem, Levi Schroyer, against Daniel Wise. From a decree in favor of defendant, plaintiff appeals. Affirmed.

J. T. Duncan and Leroy F. Youmans, for appellant.

R. W. Shand and Andrew Crawford, for respondent.

POPE, J. On the 14th day of February, A. D. 1898, this action was begun. The complaint, in effect, alleged that the plaintiff, Harriet O. Wise, became the wife of the de-

[38 S.E. 795]

fendant, Daniel Wise, on the 8th day of

April, 1896, in the county of Richland, in this state, and that they resided in said county and state; that said wife, Harriet C. Wise, was always a dutiful wife to her said husband; that on the 16th day of November, 1896, the defendant, Wise, deserted the plaintiff, his wife, leaving her penniless, and soon after said Daniel Wise reached the state of Ohio lie began an action in one of the courts of said state of Ohio for divorce, alleging that the plaintiff, his wife, had been criminally intimate with a negro boy, Thomas Thompson, and others; that as soon as he was confronted with her answer of indignant denial of such foul charges he recanted, and humbly apologized for such insults, and dismissed said suit; that upon his return to the state of South Carolina he evidently sued for peace with the plaintiff, his wife, and he was conditionally forgiven, and the conditions, among others, were that he would provide the plaintiff with a home and the personal property mentioned and set down on the exhibits with the complaint, all of which he did, except that no writings were executed between them; that the defendant began again to abuse and maltreat the plaintiff, his wife, failing to supply her necessities in food and raiment; that the plaintiff gave birth to a daughter on the 8th June. 1897, whereupon, so poorly did he provide for the wants and needs of his wife and child, that, under the direction of Dr. Robert Earle, the plaintiff and their daughter were carried to the house of her foster parents, where she remained for two months; that his cruelty, by word and deed, was so great that, when he proposed to take the plaintiff to the city of Columbia to live, she declined to leave the home he had provided for her, though he left her penniless; that the defendant has considerable means; that the plaintiff prays that the defendant may be required to pay over to her a sufficient sum of money, as alimony, which will support the plaintiff and her babe; and that the defendant, Wise, may be decreed to turn over by deed the house and lot of 15 acres, and the personal property, in accordance with his promise made at the time of their reconciliation, in the first of the year 1897.

The defendant, by his answer, admits his intermarriage with the plaintiff. He denies all allegations of neglect or cruelty, by word or act. He alleges that his wife refused to go to Ohio with him on 16th November, 1896. He alleges that the divorce suit was instituted while smarting under a sense of his wrongs at the hands of his wife, and while maddened by reports of her infidelity to him, the latter of which soon proved utterly groundless; that he became reconciled to his wife after his apologies to her; that he denies that he cursed and abused her, or that he neglected or refused to supply her with proper food or appropriate raiment or that he threatened their child; that this defend ant attributes all the wrongs he has and Is suffering from his wife to her foster parents, who are influenced by spite and hatred to him, and also by a desire to possess or control the worldly goods of which he is the owner. Indeed, his answer may be denominated a denial of any injurious allegations in plaintiff's complaint Under an order of one of the judges of the court of common pleas, all the issues of law and fact were referred to the master. The cause came on for trial before the Honorable O. W. Buchanan, as presiding judge, in the year 1899. By his decree he denied'the plaintiff any relief, but directed her to turn over the 15 acres to her husband.

From this decree the plaintiff has appealed, as follows: "First. That his honor, the circuit judge erred in the following findings and holdings in his decree: (1) 'That the plaintiff has not sustained the allegation of her complaint by the preponderance of the testimony;' whereas he should have decided that she has sustained them. (2) 'That the defendant has not deserted his wife, but she him;' whereas he should have decided that defendant has twice deserted her. (3) 'That the defendant has offered, in good faith, I think, to receive her back, which will prevent a decree for alimony;' whereas he should have decided that defendant's offer was not a sincere and bona fide offer, to treat her with conjugal kindness and affection, on which she could, with safety to her life and health, rely, but that her living with him in the relation of wife would be the risk of peril to her, and that said offer does not prevent a decree for alimony. (4) 'Nor do I find in the case any legal testimony which would justify the court in directing the defendant to convey the land mentioned in the complaint to his wife;' whereas he should have decided that the testimony showed that the defendant held the legal title to said land In trust for her as the equitable owner, and justified the court in so directing. (5) 'That she Is not entitled to any of the relief demanded by her;' where he should have decided that she is entitled to all of the relief demanded by her. (6) 'The testimony shows that she has ta1sen and retained possession of the land described In the complaint, her' right to which she submitted to the court for adjudication;' whereas he should have decided that she simply remained in the house that he had built for her, in which she was left when he last deserted her, and of which she was the equitable owner. Second. That his honor erred in not making the following findings and holdings, on two aspects of the case, as to both of which the decree is entirely silent: (1) That during both periods of their coverture, when they lived together, defendant treated plaintiff with such cruelty as justified the granting of alimony for herself and support for their child. (2) That defendant was guilty of such indecencies in his family as justified the plaintiff's claims. Third. That his honor err-

[38 S.E. 796]

ed in ordering and decreeing that 'defendant have leave to enter up judgment of dismissal of complaint, with a direction to plaintiff to surrender to him, without future waste, the possession of the land described in the complaint;' whereas he should have ordered and decreed that plaintiff have the relief sought in her complaint, and that defendant convey to her in fee the land described in the complaint."

As far as concerns the findings of fact and conclusions of law reached by the circuit judge relating to the 15 acres of land whereon is a dwelling house now occupied by the plaintiff, as well as the personal property, a list of which It attached to the complaint, I am not disposed to interfere with the circuit decree, —as to the 15 acres, because it is a dangerous precedent to set if I should adjudge otherwise as to such 15 acres of land, the title to which was taken by Daniel Wise after the agreement connected with the reconciliation between the plaintiff and defendant in January, 1897. The statute of frauds and perjuries was intended, no doubt, to prevent just such contracts being enforced In the courts of the country. All of such contracts are in parol.

In disposing of this appeal, I will first consider and state the law in this state governing cases for alimony; and, second, how the conduct of the wife, after ill usage by the husband, in condoning such previous ill usage, is to affect the consideration of the matter of renewed ill usage, ensuing upon her condonation of previous ill usage.

First. Ever since the case of Jelineau v. Jelineau, 2 Desaus. 45, it has been decided that the court of equity has jurisdiction to hear and determine questions relating to the remedy of alimony. As the court remarked in that case, in England questions as to the allowance of alimony were heard and determined by the...

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10 practice notes
  • Lewis v. Lewis, No. 26973.
    • United States
    • South Carolina Supreme Court
    • May 9, 2011
    ...facts in accord with our view of the preponderance or greater weight of the evidence, in the absence of verdict by jury.”); Wise v. Wise, 60 S.C. 426, 449, 38 S.E. 794, 802–03 (1901) (McIver, C.J., dissenting and quoting[392 S.C. 386] Finley v. Cartwright, 55 S.C. 198, 33 S.E. 359 (1899)) (......
  • Rutherford v. Rutherford, No. 23576
    • United States
    • United States State Supreme Court of South Carolina
    • October 21, 1991
    ...See, e.g., Miller v. Miller, 299 S.C. 307, 384 S.E.2d 715 (1989); Forester v. Forester, 226 S.C. 311, 85 S.E.2d 187 (1954); Wise v. Wise, 60 S.C. 426, 38 S.E. 794 In 1983, § 14-3-320 was enacted. This provision provides: [307 S.C. 204] The Supreme Court shall have appellate jurisdiction onl......
  • McLaughlin v. McLaughlin, No. 18214
    • United States
    • United States State Supreme Court of South Carolina
    • May 13, 1964
    ...of the future by the past; and the Court will connect the whole of his conduct, in order to form a correct judgment.' In Wise v. Wise, 60 S.C. 426, 38 S.E. 794, it was held that the husband's misconduct had been condoned by the reconciliation of the parties and the living together as man an......
  • Gilbert v. McLeod Infirmary, No. 16472
    • United States
    • United States State Supreme Court of South Carolina
    • March 9, 1951
    ...55 S.C. 198, 33 S.E. 359; McElwee v. Kennedy, 56 S.C. 154, 34 S.E. 86; Jerkowski v. Marco, 57 S.C. 402, 35 S.E. 750; Wise v. Wise, 60 S.C. 426, 38 S.E. 794; Huntley v. Welsh, 61 S.C. 566, 39 S.E. 767. We have jurisdiction in appeals in equity to find the facts in accord with our view of the......
  • Request a trial to view additional results
10 cases
  • Lewis v. Lewis, No. 26973.
    • United States
    • South Carolina Supreme Court
    • May 9, 2011
    ...facts in accord with our view of the preponderance or greater weight of the evidence, in the absence of verdict by jury.”); Wise v. Wise, 60 S.C. 426, 449, 38 S.E. 794, 802–03 (1901) (McIver, C.J., dissenting and quoting[392 S.C. 386] Finley v. Cartwright, 55 S.C. 198, 33 S.E. 359 (1899)) (......
  • Rutherford v. Rutherford, No. 23576
    • United States
    • United States State Supreme Court of South Carolina
    • October 21, 1991
    ...See, e.g., Miller v. Miller, 299 S.C. 307, 384 S.E.2d 715 (1989); Forester v. Forester, 226 S.C. 311, 85 S.E.2d 187 (1954); Wise v. Wise, 60 S.C. 426, 38 S.E. 794 In 1983, § 14-3-320 was enacted. This provision provides: [307 S.C. 204] The Supreme Court shall have appellate jurisdiction onl......
  • McLaughlin v. McLaughlin, No. 18214
    • United States
    • United States State Supreme Court of South Carolina
    • May 13, 1964
    ...of the future by the past; and the Court will connect the whole of his conduct, in order to form a correct judgment.' In Wise v. Wise, 60 S.C. 426, 38 S.E. 794, it was held that the husband's misconduct had been condoned by the reconciliation of the parties and the living together as man an......
  • Gilbert v. McLeod Infirmary, No. 16472
    • United States
    • United States State Supreme Court of South Carolina
    • March 9, 1951
    ...55 S.C. 198, 33 S.E. 359; McElwee v. Kennedy, 56 S.C. 154, 34 S.E. 86; Jerkowski v. Marco, 57 S.C. 402, 35 S.E. 750; Wise v. Wise, 60 S.C. 426, 38 S.E. 794; Huntley v. Welsh, 61 S.C. 566, 39 S.E. 767. We have jurisdiction in appeals in equity to find the facts in accord with our view of the......
  • Request a trial to view additional results

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