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SIMONDS v. SIMONDS

December 18, 1957

FRANCES R. SIMONDS, RESPONDENT,
v.
JOHN C. SIMONDS, APPELLANT.



The opinion of the court was delivered by: Moss, Justice.

This action, which was instituted on December 7, 1953, was one for a divorce on the ground of habitual drunkenness. Section 20-101 (4), Code of 1952. The respondent also asked for an award of the custody of the children to her, subject to reasonable rights of visitation in favor of the appellant; that she be awarded a lump sum alimony; that the appellant be required to make suitable provisions for the education, maintenance and support of the minor children; that the court fix proper compensation for her attorneys, and require the appellant to pay the same; and that she be awarded temporary alimony in the sum of $750.00 per month.

The appellant filed an answer to the complaint, asserting his earnest and sincere desire for a reconciliation between the parties, pursuant to Section 20-110 of the 1952 Code of Laws of South Carolina.

The appellant specifically denied that he was an habitual drunkard. He asserts also that he has made substantial payments to the respondent for her support and maintenance, and in addition thereto, has expended substantial sums of money for the support of his children.

At the time of the institution of this action and the service of the summons and complaint, notice of motion for temporary alimony was made and later heard by the Circuit Judge at Charleston, S.C. He ordered the payment of temporary alimony to the respondent at the rate of $600.00 per month during the pendency of the action. Upon appeal to this Court, the judgment of the lower Court was modified and the case remanded to that Court for rehearing on the question of the proper amount of temporary alimony, because the record did not show as to whether the allowance was fixed in so large an amount because of a lack of knowledge that it would be federal income tax free to the respondent. Simonds v. Simonds, 225 S.C. 211, 81 S.E.2d 344. The record does not show that any Order was thereafter passed fixing and determining temporary alimony.

The case was referred to the Master of Charleston County, and after all the testimony had been taken, the respondent was allowed to amend her complaint by adding thereto, as an additional ground for divorce, that of constructive desertion.

The Master of Charleston County held seven references. The testimony was taken and various exhibits offered in evidence. On April 1, 1955, the Master filed his report recommending that the respondent be granted an absolute divorce from the appellant on the grounds of habitual drunkenness and constructive desertion. He also recommended that respondent be awarded a lump sum payment of $225,000.00 for her own maintenance and support; that the appellant be required to make suitable provision for the education, maintenance and support of the minor children of the marriage, and that he be required to pay the fees of the attorneys representing the respondent, in an amount to be subsequently reported to the Court.

The husband filed sixty-nine exceptions to the report, which exhaustively challenged the correctness of the Master's findings and the propriety of awarding lump sum alimony and the amount of it. The appeal from the Master's report was heard by Honorable James M. Brailsford, Jr., as Judge of an adjoining Circuit because the resident Judge of the Ninth Circuit had disqualified himself. He reversed the Master's findings as to the wife being entitled to a divorce on the grounds of habitual drunkenness and constructive desertion. He did not pass or refuse to pass upon the exceptions having to do with the recommendations made by the Master as to alimony and attorneys' fees. The trial Judge found that the husband and wife separated on December 17, 1952 and that from the time of the separation until the commencement of the action on December 7, 1953, that the husband had wholly abstained from the use of alcoholic beverages. Upon appeal to this Court, the conclusions of Judge Brailsford denying the wife a divorce on the ground of the husband's habitual drunkenness, was affirmed. We said:

"Based upon the authorities heretofore cited and referred to, in order that a divorce may be granted on the ground of habitual drunkenness, such must exist at or near the time of the filing of the action for a divorce. It being admitted that the respondent had totally abstained from the use of alcohol in any manner for approximately a year after the separation of the appellant and respondent, the condition of habitual drunkenness did not exist at or near the time of the filing of this action. The Trial Judge properly held that a divorce could not be granted on the ground of habitual drunkenness."

This Court also affirmed the lower Court in denying the wife a divorce on the ground of constructive desertion. We said [229 S.C. 376, 93 S.E.2d 111]:

"Applying the principle announced in the case of Mincey v. Mincey [224 S.C. 520, 80 S.E.2d 123], supra, the appellant is not entitled to a divorce on the ground of constructive desertion because a year had not elapsed from the date of the desertion to the commencement of this action. Section 20-101(2), 1952 Code of Laws of South Carolina."

The wife asked this Court to reinstate the Master's report as to lump sum alimony and attorneys' fees. This request was refused because we were powerless to make a separate maintenance award or to allow attorneys' fees where such had not been awarded by the lower Court. However, we did hold that if the wife was entitled to such an award, that the same could be made, in this action, by the Common Pleas Court of Charleston County. We said:

"It is the opinion of this Court that the judgment of the Court below was correct and it is affirmed, but the case is remanded for the purpose of permitting the lower Court to pass upon whether or not the appellant is entitled to separate maintenance and attorneys' fees. Upon this issue, we express no opinion."

We have quoted from our opinion in Simonds v. Simonds, 229 S.C. 376, 93 S.E.2d 107, this being the report of the second appeal in this case.

Following the remand of this case to the lower Court for the purpose stated, the wife moved before Honorable G. Badger Baker, Judge of the Twelfth Circuit, for an Order, upon the record in this cause, including the testimony and exhibits, awarding her a lump sum for separate maintenance and attorneys' fees. Alternatively she moved, upon failure of the Court to award separate maintenance in a lump sum, that such be allowed in monthly installments. The motion as to attorneys' fees was supported by several affidavits as to the worth of the services rendered to the wife by her attorneys.

After the service of the motion by the respondent for an Order awarding her alimony and attorneys' fees, the appellant served a notice of motion to be allowed to file a supplemental answer in the cause. Judge Baker orally ruled, when the motion was heard, that he would allow the same to be filed, but stated that while at the moment he could see no need for taking additional testimony, he would permit counsel for the appellant to argue this question. The respondent filed a return to the proposed supplemental answer of the appellant. In support of her return she also filed an affidavit. The respondent contended that all questions should be determined on the record as it was completed prior to the filing of the Master's report. The appellant contended that the Court should either take additional testimony or that the cause be referred for the reason that the case was now, for the first time, a suit for separate support and maintenance as opposed to a divorce action, and that he was entitled to prove what he had been doing from the time of the separation to the date of the hearing by way of maintaining and supporting his wife and attempting a bona fide reconciliation. He also contended that the respondent had no evidence tending to prove in any manner that the support given her by her husband was inadequate, and that the first suggestion of any such inadequacy was contained in her affidavit submitted at the hearing, and that he should be given the right to cross examine her and to offer evidence of the adequacy of the support which he was furnishing for his wife. The appellant also contended that evidence should be received as to the then financial and tax status of both parties to the action, and that both parties should be allowed to offer witnesses and to cross examine witnesses as to the amount of counsel fees to which the wife was entitled to recover, if any, rather than deciding the issues on affidavits without any right of cross examination to either party.

It is conceded that the wife would not be entitled to recover counsel fees in the absence of obtaining affirmative relief in this action. The appellant alternatively moved for the taking of testimony by the Court or for an Order of Reference upon the issues made by the supplemental pleadings. It is agreed that the Court did not rule upon any of the motions on behalf of the appellant and gave no indication as to whether he would take testimony, or refer the cause, or receive and consider reply affidavits. It is further agreed in the statement of the case that the appellant, being unable to ascertain as to whether the Court would take testimony, or refer the cause, or consider reply affidavits, served a notice of motion to strike the return of the respondent to the supplemental answer of the appellant.

The record shows that on May 22, 1957, the Court filed an Order wherein he disallowed the filing of the supplemental answer on behalf of the appellant, which previously had been orally allowed, overruled the exceptions of the appellant to the Master's report relating to alimony, and found that the respondent was entitled to an award of separate maintenance from the appellant. He confirmed a lump sum alimony award of $225,000.00 in favor of the wife, and allowed counsel for the respondent the sum of $15,000.00 as attorneys' fees,

In refusing to permit the appellant to file a supplemental answer, the trial Judge said:

"Preliminary to the disposition of the main questions in the case is the disposition of the Defendant's Motion for permission to file a Supplemental Answer. In this connection, it is plain that there are no new material facts which have developed since the filing of the Defendant's original Answer with the possible exception of the Defendant's continued sobriety. Since it was conceded that I might take this factor into account, the filing of a Supplemental Answer would serve no useful purpose. Furthermore, it was conceded that the Defendant wished a reconciliation, but in Plaintiff's verified Return, she positively asserts that under no circumstances will she ever return to the Defendant for whom, she asserts, she now holds neither love, confidence, trust or respect."

The appellant gave due and timely notice of appeal to this Court from the Order of the trial Judge. He has filed thirty-four exceptions to such Order. The exceptions raise the following questions: (1) Did the trial Judge base his order on an erroneous conception of the issue, or issues, properly before him for decision? (2) Did the trial Judge commit an abuse of discretion, or error of law, in the procedure which he followed, which procedure did not allow the appellant to be fully heard or his defense considered? (3) Is the respondent entitled to any relief under the law and the facts of this case? (4) Was there error in allowing lump sum alimony in the amount of $225,000.00? (5) Was there error as to the Court costs and attorneys' fees awarded the respondent? These questions will be discussed in the order stated.

In the case of Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629, 635, the husband instituted an action against his wife for a divorce on the ground of desertion. The wife counterclaimed for a divorce on the ground of constructive desertion. The lower Court granted a divorce to the wife and required the husband to pay lump sum alimony and attorney's fees. Upon appeal to this Court the decree granting the wife a divorce a vinculo matrimonii was reversed, but the Court affirmed the right to the wife to separate maintenance and support. This Court said:

"The causes for which separate maintenance may be granted are not confined to those which constitute grounds for divorce. Accordingly, a court may decree such maintenance although a divorce is denied. Nelson on Divorce and Annulment, 2nd Edition, Vol. 3, Sections 32.10 and 32.12; Sales v. Sales, 222 Ky. 175, 300 S.W. 354; Bradford v. Bradford, 296 Mass. 187, 4 N.E.2d 1005; Cochrane v. Cochrane, 303 Mass. 467, 22 N.E.2d 6, 138 A.L.R. 341. In actions for divorce, we are limited by the terms of the Constitution. There is no statute in this state undertaking to fix the grounds for separate maintenance and support. This is left to the broad discretion of a court of equity."

In remanding this case for the purpose of permitting the lower Court to pass upon whether or not the wife was entitled to separate maintenance and attorneys' fees, we quoted the foregoing from the Machado v. Machado case, supra. Hence, the sole issue for determination by the lower Court was whether or not the wife was entitled to separate maintenance and attorneys' fees.

When this case was remanded to the lower Court for determination of the question hereinbefore stated, we said:

"A review of the exceptions filed to the Master's Report show that nine of such exceptions had to do with the recommendations made by the Master as to alimony and attorney's fees. The order of the Trial Judge, as is above stated, did not pass upon these exceptions nor did he refuse to pass thereon. This being the situation, this court is powerless to make a separate maintenance award or to allow attorney's fees. If the appellant is entitled to such an award, the same can be made, in this action, by the Common Pleas Court of Charleston County." [93 S.E.2d 112.]


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