The opinion of the court was delivered by: Moss, Justice.
May 22, 1956.
The appellant, Frances R. Simonds, and John C. Simonds, the respondent, are husband and wife. They were married on November 12, 1930.
This action, which was instituted on December 7, 1953, is one for divorce on the ground of habitual drunkenness, Section 20-101 (4), Code of 1952. The respondent denies that he is an habitual drunkard. The case was referred to the Master for Charleston County and after all of the testimony had been taken, the appellant was allowed to amend her complaint by adding thereto as an additional ground for divorce that of constructive desertion.
The Master of Charleston County filed his report recommending that the appellant be granted a divorce on the ground that the respondent was an habitual drunkard and that he was guilty of constructive desertion. He also recommended the allowance of a lump sum award of alimony and that he pay counsel fees of appellant's attorney. Upon exceptions by the respondent to the findings of fact and legal conclusions contained in the Master's Report, the Trial Judge held that the appellant was not entitled to a divorce on the ground of habitual drunkenness or constructive desertion.
The case is before this court upon exceptions by the appellant to the Order of the Circuit Judge. This appeal may be disposed of by determining whether or not the appellant was entitled to a divorce on the grounds of habitual drunkenness or constructive desertion on the part of the respondent.
The Trial Judge found, and the record sustains such finding, that the appellant and respondent separated on December 17, 1952. At that time the wife left the home of the parties, and after being absent for a few days, the husband removed himself from the family home and took residence at the Fort Sumter Hotel in Charleston, thereupon the wife returned to the family residence and has lived there since. It is an admitted fact that from the time of the separation of the parties on December 17, 1952 until the commencement of the action that the respondent has wholly abstained from indulging in the use of alcoholic beverages. The respondent has been totally abstemious for approximately one year prior to the institution of this action for a divorce upon the ground of habitual drunkenness. Habitual drunkenness and abstemiousness for a long period of time are incompatible terms. The appellant bases her right to relief upon the existence of the former. The Trial Judge held that no divorce could be granted on the ground of habitual drunkenness unless it continues up to the time of the commencement of the action.
In the case of Fish v. Fish, 126 Me. 342, 138 A. 477, 54 A.L.R. 327, the Maine Supreme Judicial Court held that in order to justify a divorce for gross and confirmed habits of intoxication, the habits must continue up to the time of the filing of the libel. In this case there is cited a number of decisions from various courts confirmatory of this holding. We cite several of them.
In the case of Burt v. Burt, 168 Mass. 204, 46 N.E. 622, the Supreme Court of Massachusetts, in dealing with this question where the statutory ground involved was "`gross and confirmed drunkenness, caused by the voluntary and excessive use of opium or other drugs'", St. Mass. 1889, c. 447, had this to say:
"`The decree which was entered, in view of the finding of the libelee's use of the drug after she left her husband, seems to be based upon this construction of the statute, namely, that the libelant would be entitled to a decree if at any time after the statute was in force the libelee was in the condition set forth in the statute, although the gross character of the use of the drug had become modified or had ceased when the libel was brought. We are of opinion that this view is erroneous. `Gross and confirmed drunkenness' is a condition, just as what is called in the Pub. St. c. 146, § 1, `gross and confirmed habits of intoxication' is a condition. Substantially the same rules apply to both descriptions. Drunkenness cannot fairly be said to be gross and confirmed if at the time the libel is filed the character of the use of the intoxicant or drug has ceased for some length of time, so that it may fairly be found that the condition required by the statute no longer exists. The statute does not authorize a divorce on account of the use of a drug, but only for its abuse. The use must be excessive, and must produce a certain result, and this result must exist when the libel is filed."
Likewise, in the cases of McCraw v. McCraw, 171 Mass. 146, 50 N.E. 526, and Gowey v. Gowey, 191 Mass. 72, 77 N.E. 526, the Court reiterated that gross and confirmed habits of intoxication, in order to warrant a decree of divorce, must have existed when the libel was filed. This rule also was followed in Hammond v. Hammond, 240 Mass. 182, 132 N.E. 724.
In the case of Allen v. Allen, 73 Conn. 54, 46 A. 242, 49 L.R.A. 142, 84 Am. St. Rep. 135, where a statute provided that a divorce may be granted for "habitual intemperance", the Court held that the cause must be "found to exist at the time the decree is made * * * at the very time when the divorce is granted". This rule has now been changed by amendment of the Connecticut Statute.
In the case of McMahon v. McMahon, 170 Ala. 338, 54 So. 165, where the Alabama Statute authorized a divorce "`For becoming addicted after marriage to habitual drunkenness'", it was held that the habit must be fixed and must continue until the suit is brought.
In the recent case of Meares v. Meares, 256 Ala. 596, 56 So.2d 661, 662, it appears that the husband and wife were separated in Florida on November 20, 1949. The wife returned to her home in Alabama, and after one year as required by the statute of Alabama, she filed a bill for divorce on November 24, 1950, alleging that her husband became addicted after his marriage to habitual drunkenness. The court thought it sufficient to say as to the evidence that none was offered "tending in any way to show that the habit of drunkenness continued until at or near the time of filing * * *. The testimony on this point ended as of the time of the separation in November, 1949, a year before the bill was filed." The court then went on to say, "* * * the habit of drunkenness must have * * * continued until at or near the time of filing the bill for divorce".
See also the case of Meathe v. Meathe, 83 Mich. 150, 47 N.W. 109; Reynolds v. Reynolds, 44 Minn. 132, 46 N.W. 236; Youngs v. Youngs, 130 Ill. 230, 22 N.E. 806, 6 L.R.A. 548; Gourley v. Gourley, 16 ...