MAYS v. MAYS

Citation Codes

Equivalent Citations

citation codes

Docket Number

20299

Attorney(S)

Messrs. West, Bendorf, Cooper and Bowen, of Camden, for Respondent-Appellant, cite: As to the Plaintiff's being entitled to a divorce from the Defendant on the ground of physical cruelty: 244 S.C. 265, 136 S.E.2d 537; 254 S.C. 78, 173 S.E.2d 372; 246 S.C. 299, 143 S.E.2d 380; 258 S.C. 135, 187 S.E.2d 528; 215 S.C. 502, 56 S.E.2d 330; 27A C.J.S., Divorce, § 136(b), page 459; 100 So.2d 35; 277 S.W.2d 327; 231 So.2d 915. As to the Defendant's not being entitled to a divorce from the Plaintiff on the ground of adultery: 215 S.C. 502, 56 S.E.2d 330; 27 C.J.S., Divorce, § 139(a); 248 S.C. 160, 165 S.E.2d 633; 262 S.C. 291, 204 S.E.2d 53; 237 S.C. 532, 118 S.E.2d 171; 259 S.C. 418, 192 S.E.2d 329. As to it's being in the best interest of Robbie Mays to be placed in the custody of the Plaintiff, Shirley Mays: 238 S.C. 521, 121 S.E.2d 4; 242 S.C. 258, 130 S.E.2d 758; 242 S.C. 263, 130 S.E.2d 552; 220 S.E.2d 228; 250 S.C. 363, 157 S.E.2d 858. As to the Defendant's being required to pay for the Plaintiff's attorney: 263 S.C. 291, 204 S.E.2d 53; 38 Neb. L. Rev. 761; 1 Rich. Eq. 282; S.C. Code Ann. § 20-112 (1962); 285 S.W.2d 176; 258 S.C. 554, 189 S.E.2d 820; 9 S.C.L.R., Volume 27, Number 2; 242 S.C. 263, 130 S.E.2d 552; 262 S.C. 291, 204 S.E.2d 53. As to the award of support and alimony as set forth in the decree of divorce being inadequate: 256 S.C. 243, 182 S.E.2d 75; 250 S.C. 264, 157 S.E.2d 249; 246 S.C. 332, 143 S.E.2d 619. Messrs. Blease, Griffith and Stone, of Newberry, and Savage, Royall, Kinard and Sheheen, of Camden, for Appellant-Respondent, cite: As to the Plaintiff's not being entitled to a divorce from the Defendant on the ground of physical cruelty: 244 S.C. 265, 136 S.E.2d 537; Opinion 20155, filed January 22, 1976; 224 S.C. 520, 80 S.E.2d 123; 215 S.C. 502, 56 S.E.2d 330; 27 C.J.S. Divorce, 136b, page 732;. As to the Defendant's being entitled to a divorce from the Plaintiff on the ground of adultery: Section 20-113 of the Code of Laws of South Carolina for 1962, as amended; 215 S.C. 502, 56 S.E.2d 330; 237 S.C. 532, 118 S.E.2d 171; 246 So.2d 69; 163 N.Y. Supp.2d 218; 115 N.Y. 466, 22 N.E. 169. As to it's not being in the best interest of Robbie Mays to be placed in the custody of the Plaintiff, Shirley Mays: 231 S.C. 283, 98 S.E.2d 764; 27 C.J.S. Divorce, Section 309e, p. 1175. As to the Defendant's not being required to pay for the Plaintiff's attorney: 258 S.C. 554, 189 S.E.2d 820. As to the tape recording of telephone conversations being admissable in evidence to impeach a witness and show lack of credibility: 222 S.C. 354, 72 S.E.2d 830; 373 U.S. 427, 10 L.Ed.2d 462, 83 S.Ct. 1381; 18 U.S.C.A. Section 2511 2(d); 216 S.C. 579, 59 S.E.2d 168; 9 A.L.R. 3d 423.

Judges

GREGORY, Justice:

Acts

Crimes And Criminal Procedure — Wire And Electronic Communications Interception And Interception Of Oral Communications — Crimes — Interception And Disclosure Of Wire, Oral, Or Electronic Communications Prohibited

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Smart Summary

Factual and Procedural Background

The respondent-appellant (wife) filed for divorce a vinculo matrimonii against the appellant-respondent (husband) on the ground of physical cruelty. She also sought custody of their infant son, Robert C. Mays, IV, child support, alimony, attorney's fees, and a restraining order. The husband denied the grounds for divorce and counterclaimed for divorce on the ground of adultery and custody of the child. The Family Court for Kershaw County, after three hearings and extensive testimony, granted the wife a divorce, custody of the child, child support, alimony, and attorney's fees. Both parties appealed the decision.

Legal Issues Presented

Whether the wife was entitled to a divorce on the ground of physical cruelty.
Whether the husband was entitled to a divorce on the ground of adultery.
Determination of custody of the infant son.
Whether the alimony, child support, and attorney's fees awarded were adequate.
Whether the exclusion of a tape recording used to impeach a witness was proper.
Whether the trial court erred in denying a restraining order against the husband.

Arguments of the Parties

Respondent-Appellant (Wife) Arguments

She was entitled to a divorce on the ground of physical cruelty.
She sought custody of the child, child support, alimony, and attorney's fees.
The alimony and child support awarded were grossly inadequate given the husband's substantial income and her financial needs.
The attorney's fees awarded were insufficient considering the time and effort expended by her counsel.
The husband should be restrained from further harassment.

Appellant-Respondent (Husband) Arguments

The wife was not entitled to a divorce, alimony, attorney's fees, or custody of the child.
The husband was entitled to a divorce on the ground of adultery.
The tape recording of telephone conversations should have been admitted to impeach a witness.
The wife was not a fit custodian for the child.
The husband should not be required to pay the wife's attorney's fees.
The restraining order was not warranted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Williams, 222 S.C. 354, 72 S.E.2d 830 (1952)	Permissibility of impeaching a witness by prior inconsistent statements.	Supported the principle that impeachment evidence by prior contradictory statements is admissible.
Martin v. Dunlap, 266 S.C. 230, 222 S.E.2d 8 (1976)	Impeachment of witness testimony through prior inconsistent statements.	Reinforced the admissibility of impeachment evidence.
Lopez v. U.S., 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)	Admissibility of evidence obtained by electronic eavesdropping for impeachment purposes.	Confirmed that such evidence need not be excluded despite its method of acquisition.
18 U.S.C.A., Section 2511 (2)(d)	Permits one party to a telephone conversation to record it without the other's knowledge and disclose it.	Supported the legality of the tape recording introduced for impeachment.
Smith v. Wunker, 356 F. Supp. 44 (D.C. Ohio 1972)	Legal precedent on recording telephone conversations by a party to the call.	Used to justify admissibility of the tape recording.
State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950)	Recognition of lawful recording by a party to a telephone conversation.	Supported the court's view on the tape recording's admissibility.
Darden v. Witham, 263 S.C. 183, 209 S.E.2d 42 (1974)	Factors relevant to awarding attorney's fees including nature, difficulty, time spent, and results obtained.	Guided the court's determination that the attorney's fees award was inadequate.

Court's Reasoning and Analysis

The court affirmed the grant of divorce and child custody to the wife, finding the husband's exceptions meritless and dismissing them under Supreme Court Rule 23 to avoid unnecessary embarrassment. Regarding the tape recording, the court recognized the legal permissibility of impeachment by prior inconsistent statements and the lawful recording by a party to the conversation under federal statute and precedent. Although the trial court erred in excluding the tape, the error was harmless because the impeachment sought would not have established the wife's unfitness or adultery.

On alimony, child support, and attorney's fees, the court found the awards inadequate given the husband's substantial income and the wife's financial needs, including her unemployment and efforts to pursue education. The court concluded the trial court abused its discretion in these awards. The court also found no error in denying the restraining order, noting the wife did not request it before trial and expressing confidence that the divorce decree would end the parties' disputes.

Holding and Implications

The court's decision was affirmed in part, reversed in part, and remanded. Specifically, it affirmed the divorce decree and child custody award but reversed and remanded the case for reconsideration of alimony, child support, and attorney's fees due to inadequacy. The exclusion of the tape recording was deemed harmless error, and the denial of the restraining order was upheld. The direct effect is that the wife retains custody and divorce rights, but the financial support provisions require reevaluation. No new legal precedent was established.

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Shirley E. MAYS, Respondent-Appellant, v. Robert C. MAYS, III,Appellant-Respondent.

October 28, 1976.

GREGORY, Justice:

The respondent-appellant (wife) brought this action for divorce, a vinculo matrimonii, against the appellant-respondent (husband) on the ground of physical cruelty. In her complaint she also sought custody of Robert C. Mays, IV, an infant son born of the marriage, support for the child and alimony for herself, fees for her attorney and a restraining order.

The husband answered the complaint denying the wife was entitled to a divorce on the ground claimed. By way of counterclaim he sought a divorce, a vinculo matrimonii, from the wife on the ground of adultery and the custody of the infant son.

The case was heard by the Honorable Frank E. Rector, Judge of the Family Court for Kershaw County. After three hearings and voluminous testimony Judge Rector issued his decree granting the wife a divorce, a vinculo matrimonii, custody of and support for the infant son, alimony and attorney's fees. The husband and wife both appeal. We affirm the decree with respect to the granting of a divorce, a vinculo matrimonii, and child custody but reverse for inadequacy and remand as to support, alimony and attorney's fees.

The husband contends the wife was not entitled to a divorce, alimony, attorney's fees or custody of their child. We have examined the exceptions with respect to these contentions and in light of the testimony find them manifestly without merit. Since review of them is of no precedential value, reveals no legal error, and grants appellant-respondent no relief while exposing all concerned to needless embarrassment, we dismiss his exceptions pertaining to grant of divorce, attorney's fees, and custody under Supreme Court Rule 23.

The husband further contends that the court erred in excluding a tape recording of a telephone conversation sought to be introduced into evidence for the purpose of impeaching by prior inconsistent statements the credibility of a witness testifying for the wife. The husband's private investigator duly qualified the tape by testifying she had called the subject witness and recorded their conversation. She testified the tape had a safety device precluding any alteration, that the tape conversation was authentic and correct, that the tape had been in her exclusive custody since being recorded, and that she recognized the voices on the tape as being hers and that of the witness sought to be impeached.

Impeachment of a witness by showing prior statements inconsistent or contradictory of his trial testimony is permissible. State v. Williams, 222 S.C. 354, 72 S.E.2d 830 (1952); Martin v. Dunlap, 266 S.C. 230, 222 S.E.2d 8 (1976). Such impeachment evidence need not be excluded because it was secured by electronic eavesdropping. Lopez v. U.S., 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed. 462 (1963). 18 U.S.C.A., Section 2511 (2) (d) makes it clear that one party to a telephone conversation may lawfully tape the conversation without the other's knowledge or permission and subsequently disclose it. See Smith v. Wunker, 356 F. Supp. 44 (D.C. Ohio 1972); State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950).

Although the court erred in excluding the taped conversations such error was not sufficiently prejudicial to the husband's case to afford him any relief. The witness was introduced by the wife to show she was a fit mother. Appellant-respondent sought on cross-examination to show a relationship between the wife and an alleged paramour. In essence, the husband sought to rebut the testimony of his wife that she did not know the alleged paramour by impeaching the credibility of the wife's character witness who testified that although she knew the alleged paramour the wife did not. Impeachment of this witness would not have proven the wife's knowledge of the alleged paramour and certainly not an adulterous relationship with him. In light of the husband's failure to prove any acts of unfitness of the wife to care for the child, the impeachment of this witness's testimony regarding her fitness, would likewise have achieved nothing.

The wife, respondent-appellant, appeals the insufficiency of the alimony, child support, and attorney's fees. She contends that Two Hundred ($200.00) Dollars per month as child support plus medical expenses in excess of Fifteen ($15.00) Dollars per month and payment of the first and second mortgages on the house and car payments is grossly inadequate support from a husband whose annual income is approximately Forty Thousand ($40,000.00) Dollars a year. It is apparent that such an award is inadequate to maintain the wife and child in a manner and style to which they have been accustomed. It merely provides a roof for their heads and minimal support for the child, although the husband expressed an intention to send the child to private school in the event he were awarded custody. There are no provisions for needs of the mother who has custody of the infant son and children from a previous marriage. She has no job and the record indicates she has just started college. She testified that her expenses for maintaining her household are approximately One Thousand ($1,000.00) Dollars per month.

The record reflects that the husband is the senior partner of a four man law firm engaged mainly in corporate and estate planning and taxation. He estimated his share of partnership earnings to be a gross maximum of Thirty-Five Thousand ($35,000.00) Dollars. He must pay taxes and Two Hundred ($200.00) Dollars a month child support for his child of a former marriage. He resides with his mother and has minimal living expenses.

A review of the entire record convinces us that the alimony is not in keeping with the husband's ability to pay and the needs of the wife. We find an abuse of discretion in the alimony award. As this issue is re-evaluated, the court should keep in mind that the wife has a young family to raise, that she is unemployed, and that she needs sufficient temporary backing to continue her education or otherwise prepare herself to become self-supporting.

On the question of attorney's fees, we conclude that an award of Five Hundred ($500.00) Dollars was, likewise, an abuse of discretion on the part of the lower court. The wife's counsel testified that prior to the September 15, 1975 hearing he had expended twenty-nine (29) hours in preparation of the case for trial and in attendance at the August 20 hearing. A third hearing was had October 16, 1975.

The voluminous record of the case reflects substantial time spent by all attorneys involved. The husband, an accomplished attorney in his own right, employed two other vary reputable firms to assist in his defense. Every issue was hotly contested.

The record reflects that the husband expended Five Thousand ($5,000.00) Dollars for detectives alone, who produced nothing of value to his defense or counterclaim for child custody.

We find it patently inequitable that counsel for the prevailing party should be awarded only Five Hundred ($500.00) Dollars in view of the nature, extent, difficulty of the case, time devoted, professional standing of counsel and beneficial results obtained by him. Darden v. Witham, 263 S.C. 183, 209 S.E.2d 42 (1974), and especially in view of the substantial sum the husband was able to pay his private investigators.

The wife's third assignment of error concerns the lower court's failure to issue an injunction against the husband. She did not request one prior to the trial of the case upon advice of counsel. Although the record reveals much turmoil between the parties, this Court assumes that the final adjudication of the divorce will end the harassment by the husband entailed in preparing his defense and counterclaim for divorce from the wife. As an attorney and an officer of the Courts of this State, we can expect no less from the husband. We see no error in the trial court's denial of the injunction.

Affirmed in part, reversed in part and remanded for further proceedings in accordance with the views expressed herein with respect to alimony, support and attorney's fees.

LEWIS, C.J., and LITTLEJOHN, NESS and RHODES, JJ., concur.