Lynch v. Lynch , 138 S.C. 1 ( 1926 )

December 8, 1926. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Shipp, granting temporary alimony in the sum of $100 per month, and the further sum of $150 as an attorney's fee.

The plaintiff charged defendant, her husband, with acts of immorality, with insulting her, and misconduct of a very gross and grave nature. The reporter will set out her complaint in the report of the case, and this will show with sufficient clearness her contentions for all practical purposes.

The case of O'Neal v. O'Neal, 128 S.C. p. 533;123 S.E., 206, is authority for the proposition that the granting of alimony (temporary) and suit money, is within the wise discretion of the judge who hears the motion.

Chancellor Wardlaw says:

"The amount of alimony depends largely on the extravagance of the husband's misconduct." Thompson v. Thompson, 10 Rich. Eq., 424.

"The amount to be allowed as alimony depends on the circumstances of each particular case." Id.

"That the husband lived in adultery with another woman is a circumstance entitling the wife he has abandoned to a large share of his income." Id.

"The conjugal conduct of the parties, the extent of their respective incomes, the sources of these incomes, the condition in life of the wife, are all circumstances to be considered."Id.

It appears to the Court from the cases of Leysath v. Leysath,130 S.C. 511; 125 S.E., 737, and Cleveland v. Cleveland,128 S.C. 460; 122 S.E., 500, and especially the reasoning of that able and distinguished Judge, Mr. Justice Woods, in Levin v. Levin, 68 S.C. 123; 46 S.E., 945, that Judge Shipp was right in his conclusions in this case.

The following facts among others came before him:

That plaintiff found defendant and another woman in her home together in a darkened room, and that upon demanding an explanation, the other woman cursed plaintiff and refused to leave when plaintiff asked her to leave, saying in defendant's presence that he (defendant) would take care of her; that defendant would go for weeks without speaking to plaintiff, his wife; that defendant was on one occasion insulting to plaintiff and her guests in her home; that the other woman struck plaintiff and was restrained by a third party (and not defendant) from doing plaintiff further bodily harm; certain very compromising letters written by the other woman to defendant, and which were spread on the record in this case. There are other matters in the case that convince this Court that Judge Shipp was right in his order in finding that a prima facie case was made out. It may be that all these matters will be explained or disproved on the trial of the case. This Court makes no finding as to the truth of any matters; for the reason that we wish the trial on the circuit on the merits to be free and untrammeled by any suggestion from this Court. All we find is that there is no error shown by the record in the action of Judge Shipp in his order.

It is the judgment of this Court that the order of Judge Shipp be affirmed from the showing made in this case, and upon the authority of the decisions of this Court on the subject.

Order affirmed.

MESSRS. JUSTICES WATTS, COTHRAN, BLEASE, and STABLER, concur.