The opinion of the court was delivered by: Stukes, Chief Justice.
It appears from the transcript of record herein that appellant and respondent are natives and legal residents of Bamberg County, in this State. Respondent is a Lieutenant Colonel in the United States Air Force, stationed since the year 1953 at Montgomery, Alabama. The parties were married in 1942 and have three children who were born in 1945, 1948 and 1951, respectively. When respondent was stationed in Japan, and appellant with him, they entered into a voluntary, formal separation agreement, which was dated March 13, 1952. It recited differences and amicable settlement whereby they mutually agreed to sever the marriage relation and thereafter live separately, respondent to have custody of the children except during one month in the summer when appellant should have the custody, should she so desire and if the children should be in the United States; respondent would support the children at all times including the period of one month annually when in the custody of appellant. The agreement contained other pertinent provisions which need not be stated. It was recorded in the office of the Clerk of Court of Bamberg County.
The separation agreement was reacknowledged and confirmed by the parties in writing at the foot of it on October 27, 1952; and again by separate instrument executed by appellant on December 1, 1952, after their return to this country. In the last appellant certified that she and respondent had not lived together as man and wife since October 27, 1952; and admitted that she had in the past, quoting, "been guilty of certain indiscretions and of imbibing in alcoholic beverages excessively." Respondent explained in his testimony on cross-examination by appellant's counsel that the written reaffirmations of the separation agreement were occasioned by the facts that after the execution of it he and appellant lived in the same house (but in separate rooms) in Japan and later returned to the United States on the same ship, but in separate rooms. In addition to these written confirmations of the separation agreement, on June 29, 1953, in order to retain custody of the children for two months instead of one, to which the separation agreement limited her, appellant promised in writing to give the children to respondent on August 1, 1953, or at such time thereafter as he should demand them, quoting from the writing, "in accordance with agreement heretofore signed and hereby ratified * * *." None of these instruments has been denied or attacked by appellant in any manner.
A highly reputable Bamberg attorney, long an acquaintance and friend of the parties, was employed by respondent in 1953 to institute action for divorce and the summons and complaint were served upon appellant in Bamberg County on June 11, 1953. The ground alleged in the complaint for divorce was habitual drunkenness, which was established and decree of absolute divorce was entered on September 29, 1953, and a copy delivered to appellant pursuant to her request and upon her call at counsel's office. It provided that she should have the custody of the children for two months during the summer, instead of one month as provided in the separation agreement, and that they should be supported by the respondent.
Although she defaulted in the divorce action she visited respondent's attorney at his office and requested that the ground of the action be habitual drunkenness and not also adultery; and that she be given custody of the children for two months instead of one month as provided in the separation agreement. Counsel complied with these requests. Appellant attended the reference (of the time and place of which she was advised at her request) and was accompanied by her sister and also by a brother-in-law; was attentive to the proceedings and made some "side remarks."
Custody of the children was surrendered by respondent to appellant in 1953, pursuant to the agreements, and thereafter returned to respondent; in the summer of 1954 appellant had custody of the children for two months in accord with the decree of divorce, and returned them to respondent. The children were again turned over to appellant in the summer of 1955 but at the end of the two months period, she refused to give up custody and contempt proceedings were instituted against her by respondent in order to regain the custody. When he came into the State to obtain the children he was served with a notice of motion by appellant for an order vacating the judgment of divorce upon the ground that appellant was mentally incompetent at the time of the commencement of the action and remained so until after the rendition of judgment; and no guardian ad litem was appointed to represent her in the action.
The motion was made upon the affidavit of her sister with whom appellant resided during that time, that she was extremely nervous, depressed, could not be reasoned with and, in deponent's opinion, was unable to comprehend or transact the ordinary affairs of life. It is noted that this affiant was with her sister (appellant) at the reference in the divorce action and raised no such question. In further support of the motion there was the affidavit of an Orangeburg physician that he treated appellant during the period from February 28 to November 2, 1953, for a nervous condition, during which appellant was in an extremely high state of nervous tension which necessitated her confinement in the Orangeburg Regional Hospital from February 28 to April 4, from April 18 to May 24, and from October 15 to November 2, 1953; and the severity of appellant's condition was such that she could not comprehend or transact the ordinary affairs of life and lacked insight and capacity to make reasonable decisions concerning her welfare and property; that deponent has seen appellant from time to time since November 2, 1953, and in his opinion she has recovered from her mental illness. A like affidavit by another Orangeburg physician was to the effect that he treated appellant in consultation with her physician, and his conclusions were in agreement with the latter's.
It is noted that none of the intermittent periods of hospitalization coincided with the pendency of the divorce action. It was commenced after the second and concluded by decree before the last. Both respondent and his attorney separately talked with appellant's physician before the action was instituted.
The motion and the contempt proceeding came on to be heard at the same time by the resident judge and at the hearing it was discussed and considered whether he should hear them on affidavits, take testimony of the witnesses or refer the matter to the master, it appearing that counsel for respondent desired to cross-examine the physician-affiants and offer oral testimony of other witnesses. The hearing judge, quoting him, "decided that justice would best be promoted if I (he) referred the question to the master." Thereupon he issued the following order, to which there was no objection and from which there was no appeal:
"The following question arising in this case is referred to Hon. Wm. R. Free, Master for Bamberg County, to take the testimony and to report his findings of fact and conclusions of law, the same to be done with all convenient speed: Was the defendant, Mrs. Nina S. Goolsby, mentally incompetent at the time of the commencement of this action, and did she remain mentally incompetent until after the rendition of the judgment herein?"
The reference was then recessed until afternoon for opportunity of the physicians to appear and testify in reply. One of them was called to the stand by appellant and testified as to his qualifications and was then shown his affidavit, to which latter respondent objected and the witness gave no further testimony. In the course of ensuing colloquy between counsel and the master, the following occurred:
"Judge Free (the master): Although the defendant was in default in this case, she did appear and so did her sister and I think her brother-in-law. I believe they were all here. I attempted to effect a reconciliation, I heard the case, and as far as I know the defendant was not incompetent. She acted as any other defendant, or plaintiff, would have. I believe, if my memory serves me correctly, I am pretty sure that she did agree, or would have gone back with the plaintiff, but he refused. I just think this should be in the record — I wanted it all clear.
"Mr. Moss: In the light of the statement of Judge Free, we think that he should disqualify himself in ...