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Brown v. Brown, 156 S.E.2d 641 (1967)

Supreme Court of South Carolina




No. 16283.
Nov. 16, 1949.

Ruth R. Brown sued Samuel E. Brown for divorce.

The Common Pleas Court, Oconee County, J. Frank Eatmon, J., rendered judgment denying plaintiff a divorce and plaintiff appealed.

The Supreme Court, Fishburne, J., affirmed the judgment, holding that evidence did not justify granting plaintiff a divorce on ground of adultery or physical cruelty.


This is an appeal from a decree of the Court of Common Pleas of Oconee County, denying the appellant, Ruth R. Brown, an absolute divorce from the bonds of matrimony. The suit was based upon the statutory grounds of physical cruelty and adultery charged against her husband, the respondent Samuel E. Brown.

The husband filed an answer signed only by himself, in which he generally denied the allegations of the complaint, waived any and all rights under the Soldiers' and Sailors' Civil Relief Act, as amended, 50 U.S.C.A.Appendix, § 501 et seq., and further waived notice of any hearing to be had in the action. The answer was not verified.

The cause was heard by the trial judge without a reference, and the only testimony offered upon the trial of the case was that of the plaintiff, Mrs. Brown.

The parties were married in August, 1942, at Elkton, Maryland, and later Mrs. Brown returned to her native County of Oconee. There is a dearth of testimony in the meager record of this case as to where the couple might have resided after their marriage, but she testified that the last time they lived together was in Oconee County in July, 1948, after which they lived separate and apart. He is now in the armed services*332 of the United States, but it does not appear where he is stationed. In support of the allegations of her complaint as to physical cruelty, appellant testified that her husband slapped her twice and pinched her. And to sustain the charge of adultery, she said that her husband had made love to her sister-in-law in her presence, and that on one occasion she found him in bed with her. This is the sole testimony offered by the plaintiff, without elaboration and without any circumstantial detail. She is entirely vague as to when the alleged physical cruelty took place. It may be inferred that the alleged act of adultery occurred shortly before she and her husband parted in 1948. They have one child, who lives with the appellant in Oconee County.

After the trial court had heard the evidence, it entered a decree dismissing the complaint, and holding that the evidence fell far short of being sufficient to support the charges of physical cruelty and adultery. From this decree the wife has appealed, claiming that the evidence is amply sufficient to establish both charges.

In view of the fact that this case brings to the forefront a cause of action not cognizable by the courts of this State for the past seventy years or more it will not be inappropriate to briefly refer to the historical background of divorce laws in South Carolina.

The English law concerning divorce and causes of divorce as it existed prior to the American Revolution, was the Ecclesiastical Law, and not the common law. It was administered by judges and courts, whose jurisdiction never existed in this country; and it has never been recognized as a part of our common law. For a short time, during the Protectorate of Cromwell, when the spiritual courts were closed and the civil law was silenced, the Court of Chancery took cognizance of cases for alimony. 17 Am.Jur., Sec. 6, Page 149.

As is pointed out in Mattison v. Mattison, 1 Strob.Eq., 387, 20 S.C.Eq. 387, 47 Am.Dec. 541, decided in 1846, a Court of Chancery was first established in South Carolina in 1721, and it was there declared: 'Nearly a quarter of a century ago the Supreme Court of this State, in Rhame v. Rhame, advert to the practice of the English Court of Chancery, as well as to that of South Carolina, in relation to matrimonial causes, and it is there declared that the case of alimony has always been regarded as an exception, and that 'the jurisdiction of the Court must be limited to the allowing of alimony * * *.' If, twenty years since, it was judicially announced that the Court of Equity has no cognizance of matrimonial causes beyond the allowance of alimony, and a necessity existed for more extensive authority, legislative interference would have supplied the defect, and, following the example of other States, would have vested the judicial tribunals of the State with this new and perilous power * * * . Whether wisely or unwisely, the Legislature has thought proper to withhold these powers. They have delegated to no Court the authority to declare a marriage null and void, and they have never themselves exercised the authority. Cases of individual hardship have occurred, and will occur; but the observation of a different policy in other States, as well as the experience of our own, has served only to confirm the conviction that it is better to tolerate occasional suffering than to jeopardize the peace of society, and open a wide door to fraud, imposition and other immorality.'

It was not until the adoption of the Constitution of 1868, during the Era of Reconstruction, that any change was brought about in connection with divorce in this State. That Constitution, Art. IV, Sec. 15, declares: 'The courts of common pleas shall have exclusive jurisdiction in all cases of divorce;' and provided in Art. XIV, Sec. 5, that 'divorces * * * shall not be allowed but by the judgment of a court, as shall be prescribed by law.'

When the General Assembly met in 1872, an Act was passed, 15 Stat. 30, authorizing a divorce from the bonds of matrimony on the grounds of adultery and willful desertion. That Act continued of force and effect for six years, when it was repealed by the Act of 1878, 15 Stat. 719. All provisions of the Constitution of Eighteen Hundred and Sixty Eight, and the amendments thereto, were repealed when our present *333 Constitution was adopted in 1895, Art. XVII, Sec. 11, subd. 9. Until amended in 1949, the Constitution of 1895 provided, in Art. XVII, Sec. 3. 'Divorces from the bonds of matrimony shall not be allowed in this State.'

In 1949, an amendment to Art. XVII, Sec. 3 of the Constitution of 1895 was ratified by the General Assembly, having been voted on favorably by a majority of the electors. Section 3, in accordance with this amendment, now reads as follows: 'Divorces from the bonds of matrimony shall be allowed on grounds of adultery, desertion, physical cruelty, or habitual drunkenness.' Acts 1949, Page 138, 46 Stat. at Large.

Following the adoption of the foregoing Constitutional Amendment, the General Assembly at its 1949 session, passed an Act to provide for and regulate the granting of divorces from the bonds of matrimony in this State, Act April 15, 1949, 46 St. at Large, Page 216, on the grounds stated in the Amendment. So that the designated Courts of the State are now vested with what was termed in 1846, in Mattison v. Mattison, supra. 'This new and perilous power.'

A careful examination of our reports fails to disclose any case specially passing upon any ground of divorce during the period in which we had a divorce law, from 1872 until 1878. The cases of Mattison v. Mattison, 1 Strob.Eq. 387, 47 Am.Dec. 541, supra, and Grant v. Grant, 12 S.C. 29, 32 Am.Rep. 506, deal mainly with questions of jurisdiction and not with the general principles governing divorce.

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