Court of Appeals clarifies what is proof of physical cruelty and what isn’t proof of adultery

Posted Wednesday, April 14th, 2010 by Gregory Forman
Filed under Alimony/Spousal Support, Divorce and Marriage, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

I have had a number of cases in which a spouse (in my experience, always the husband) has destroyed the home phone in the midst of a domestic altercation.  Whether my client was the perpetrator or the victim of the phone destruction I have always taken this action to be of great significance: seeing it not as some random act of property destruction in the midst of a heated argument but rather as a measured attempt to prevent the other spouse from obtaining help.  In my mind it is akin to kidnaping and I consider such phone destruction to be more dangerous than the pushing and slapping that goes on in some domestic disputes.  Any spouse who would prevent the other spouse from seeking help is, in my mind, truly dangerous.

It is encouraging that South Carolina case law now supports this view.  The April 5, 2010 Court of Appeals opinion in Gorecki v. Gorecki, 387 S.C. 626, 693 S.E.2d 419 (Ct. App. 2010), affirmed the trial court’s grant of a divorce to Wife on physical cruelty grounds.  The incident that precipitated the separation was one in which the Husband:

… shoved her into a wall, verbally abused her and their grandchild, and then broke her phone when she tried to call for help.  Wife testified she was in serious fear of bodily harm as a result of this incident, and even when he was not abusing her, she felt constantly threatened and under his control.

Physical cruelty, as used in divorce law, has generally been defined by our courts as actual personal violence or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe.  It is not every slight violence committed by the husband or wife against the other, even in anger, which will authorize the divorce.  Godwin v Godwin, 245 S.C. 370, 140 S.E.2d 593 (1965).  South Carolina law has previously held that a single assault by one spouse upon the other spouse can constitute physical cruelty.  The assault must, however, be life-threatening or must be either indicative of an intent to do serious bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future. McDowell v. McDowell, 300 S.C. 96, 386 S.E.2d 468, (Ct.App. 1989).

In Gorecki Husband’s only physical violence in the incident leading to the separation was shoving Wife into a wall.  That combined with Husband’s past abuse and his breaking Wife’s phone would reasonably put most women in serious fear of bodily harm.  It is not surprising that this was sufficient abuse to give rise to a physical cruelty divorce.

Husband, in contrast, tried to avoid Wife’s claim for alimony by claiming she was committing lesbian adultery.  Neither the family court nor the Court of Appeals believed Husband’s claim, primarily because it was based on the rather vague statements of a disturbed and not terribly credible young woman claiming to be Wife’s alleged paramour, who seems to have spread controversy and dissension through the Gorecki neighborhood.

One bit of evidence that the Court of Appeals cited in justifying the decision that Wife did not commit lesbian adultery was “Wife’s half-sister testified on behalf of Wife and stated she was certain Wife had never engaged in any homosexual relationships.”  I find the half-sister’s assertion to be of almost no relevance but, evidently, our Court of Appeals is unaware that most gay people in heterosexual marriages remain heavily closeted.

In addition to affirming the family court on property division and attorney’s fees, the Court of Appeals affirmed the permanent alimony award of $1,000.00 a month to Wife.  The Court of Appeals noted that Husband’s monthly earnings of $4,300.00 was far superior to Wife’s monthly wages [which the Court of Appeals never listed] and that Wife was not “underemployed …. because she works full-time as an aide to mentally disabled children in the public school system.”  The Court of Appeals stated that “based on her education and past employments, she is working to her full earning potential.”  Yet the Court of Appeals gave no indication of Wife’s income or needs in affirming this alimony award.  It would be lovely if our appellate courts started explaining the factors justifying alimony awards rather than simply modifying or affirming these awards.

Finally, it might have been nice had the Court of Appeals explained why the Gorchkis thought the family court had authority to resolve custody or award child support between them as it regarded their granddaughter.

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