Wood v. Wood, 20547

• Decision Date: 28 November 1977
• Docket Number: No. 20547,20547
• Citation: 239 S.E.2d 315,269 S.C. 600
• Court: South Carolina Supreme Court
• Parties: Judy B. WOOD, Appellant, v. William Thomas WOOD, Respondent.

Page 315

239 S.E.2d 315

269 S.C. 600

Judy B. WOOD, Appellant, v. William Thomas WOOD, Respondent.

No. 20547.

Supreme Court of South Carolina.

Nov. 28, 1977.

Julius B. Aiken, Greenville, for appellant.

Abrams, Bowen, Robertson & Tapp, Greenville, for respondent.

GREGORY, Justice.

Mrs. Wood appeals from the order of the lower court denying her prayer for a divorce and alimony and awarding custody of the couple's child to Mr. Wood. Appellant also contends the lower court erred by awarding her only $200 as attorney's fees. We reverse on the issues of custody and attorney's fees and remand for the establishment of visitation rights for Mr. Wood and awards of child support and attorney's fees for Mrs. Wood.

Because this equity action was tried by the judge without a reference this Court will review the entire record for the purpose of determining the facts in accordance with our own view of the preponderance of the evidence. Allbritton v. Allbritton, 260 S.C. 61, 194 S.E.2d 197 (1973).

Mr. and Mrs. Wood were married in 1967 and one male child was born to this union in April 1969. At the time of the marriage Mr. Wood was attending Furman University and the family was supported in part by the efforts of Mrs. Wood. Mr. Wood attended Furman for only a year and a half and did not graduate.

At some point in the marriage Mr. Wood disassociated himself from his church and began to use alcohol, at times to excess. Mrs. Wood and several other witnesses testified that on occasion Mr. Wood physically abused his wife to some extent, although this testimony was disputed by Mr. Wood. Mrs. Wood left the marital home on three different occasions with the third and final separation occurring on October 18, 1975. Mrs. Wood left the minor child with Mr. Wood each time she departed.

Prior to the final separation Mr. and Mrs. Wood signed an agreement dated August 6, 1975, whereby it was agreed Mr. Wood would have custody of the child and Mrs. Wood would have liberal visitation rights.

On October 18, 1975, Mrs. Wood filed suit against her husband seeking a divorce a vinculo matrimonii on the ground of physical cruelty. Almost simultaneously, Mr. Wood brought an action seeking an order of separate maintenance. Because Mrs. Wood commenced her suit first, and by agreement of counsel, the trial judge treated Mr. Wood's complaint as an answer and counter claim, and Mrs. Wood's complaint as a reply.

A hearing was held on October 29, 1975, and by temporary order dated November 3, 1975, the lower court awarded custody of the minor child to Mr. Wood and denied Mrs. Wood's request for temporary support and maintenance. At this hearing Mrs. Wood testified she signed the August 6 custody agreement voluntarily.

The final hearing took place on January 28, 1976 and extensive testimony was taken. By order dated April 30, 1976, the lower court denied Mrs. Wood's prayer for a divorce; awarded custody of the minor child to Mr. Wood with visitation rights for Mrs. Wood; denied alimony and support for Mrs. Wood; and ordered Mr. Wood to pay $200 attorney's fees to Mrs. Wood's attorney. Contrary to her testimony at the first hearing, Mrs. Wood testified at this hearing she signed the August 6 custody agreement under duress.

Appellant argues the lower court erred by holding she had failed to establish physical cruelty on the part of respondent and thus was not entitled to a divorce.

Physical cruelty by a spouse that justifies the granting of a divorce in this State has generally been defined as "actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe." Gill v. Gill, S.C., 237 S.E.2d 382 (1977). It is well established that not every slight violence committed by the husband or wife against the other will authorize a divorce on this ground. Gill, supra.

Here, appellant testified that on numerous occasions over the course of the previous five years respondent had struck her about the face and chest with his fists. Appellant also testified she had received black eyes as a result of these blows, and was frequently bruised about the arms and legs. Several witnesses indicated they had seen bruises on Mrs. Wood's body.

On cross examination Mrs. Wood altered her earlier testimony as to the violent nature of Mr. Wood's attacks and revealed that most of the physical abuse she complained of consisted merely of rough treatment by her husband, or "manhandling." She testified that Mr. Wood would forcibly sit her down in a chair or back her into a corner in an attempt to make her listen to him. Occasionally Mr. Wood would hold her tightly by her wrists, or pick her up bodily. Witnesses on behalf of Mr. Wood testified they had never seen Mr. Wood mistreat his wife physically, and had never seen bruises or other signs of abuse on Mrs. Wood.

Appellant's testimony was contradictory and in large...