Buero v. Buero
Buero v. Buero
Opinion of the Court
This action was brought by the wife against the husband for a divorce upon the ground of physical cruelty. She also sought custody of the three minor children of the parties, support and counsel fees. The answer of the husband denied the material allegations of the complaint and interposed,
While the exceptions on appeal challenge the judgment of the lower court in practically all respects, we need only consider those which relate to the issues of condonation, custody of the children, and support.
The husband first contends that the evidence conclusively shows that the wife condoned any acts of physical cruelty charged against him by continuing thereafter to live in the home with him and that her petition for a divorce should have been denied by the lower court on that ground.
The parties were married on October 7, 1954 and have three children, ages 3, 5, and 8. They have apparently had disagreements over a period of time, and the wife has instituted actions for divorce against the husband on two prior occasions. The first was brought at some time prior to 1962, neither the date nor the grounds being shown in the record. The second was begun in 1962 upon the ground of habitual drunkenness. While there is disagreement as to the justification for the institution of these actions, both were apparently ended before a hearing and were followed by a resumption of marital relations.
The wife instituted this action on July 18, 1963, following an alleged physical attack upon her by the husband on July
Although the wife testified that the husband had inflicted several acts of physical abuse upon her, the first in August 1961, and the last after the commencement of this action, the record is clear that she continued to live in the same home with him after each incident and they have occupied the same home throughout these proceedings. The record further clearly shows that, since the incident of July 4th, which precipitated this action, the wife, has, while continuing to reside in the home, prepared the meals for the family, washed the husband’s clothes, on occasions taken hot meals to him at his place of work, and accompanied him to buy groceries. During this time, the husband has continued to pay all expenses of the home, including food, house payments, payments on the wife’s automobile, utilities, clothing, etc. The parties disagree as to whether there has been cohabitation in other respects.
It is well settled that condonation is a defense to an action for divorce, and that voluntary martial cohabitation by the wife with her husband after acts of physical cruelty on his part which would have entitled
It is undisputed -in this case that the wife, husband, and children have occupied the same living quarters throughout the prosecution of the action. The wife says however that, while admittedly occupying the same home, she and her husband have lived separate and apart and there have been no marital relations. The only testimony to support this claim comes from the wife.
We have held that “[w]hen a husband and wife occupy the same living quarters, the law presumes that they engage in marital relations”; and that the unsupported testimony of one of the parties in such instance that they did not cohabit is insufficient to overcome such presumption. Boozer v. Boozer, 242 S. C. 292, 130 S. E. (2d) 903.
We think that the continued occupancy by the wife and husband of the same home during the pendency of the divorce action, under the facts of this case, conclusively showed condonation on the part of the wife of the alleged acts of physical cruelty upon which the divorce was sought to be obtained; and the lower court should have denied her petition for divorce for this reason.
The remaining questions concern the custody of the children and the award for support and maintenance. The wife, husband, and children are occupying the same home and the husband is providing for their support. In fact, the wife testified that the husband was a good provider. The children are apparently being cared for and there is testimony that both parents are good to them. We find no basis under these facts upon which to sustain the order of the lower court respecting the custody of the children and support.
Reversed.
Reference
- Full Case Name
- Nancy Joan BUERO v. William A. BUERO
- Cited By
- 2 cases
- Status
- Published