Opinion
13207
July 18, 1931.
Before SHIPP, J., Richland, May, 1930. Affirmed.
Action by Mamie L. Boswell against J.K. Boswell. From the decree defendant appeals.
Report of the master and decree of the lower Court were as follows:
REPORT OF J.C. TOWNSEND, MASTER FOR RICHLAND COUNTYTo the presiding Judge of the Court of Common Pleas for Richland County, S.C. Spring term, 1929:
1. I, the undersigned Master, have to report: Pursuant to the order of reference set out in the attached testimony, I held references herein, attended by the attorneys of record, took the testimony offered, which is herewith reported, and therefrom find and conclude as hereinafter set forth.
2. I find that the plaintiff, Mamie L. Boswell and the defendant J.K. Boswell were on or about the 15th day of August, 1905, duly married at Greenwood, in the State of South Carolina.
3. I further find that they lived together as man and wife continuously save a few exceptions until on or about the 20th day of March, 1928, when they separated by mutual consent and that they have been living separately and apart since said time.
4. I further find that on or about the 20th day of March, 1928, the said Mamie L. Boswell and J.K. Boswell entered into a certain written contract or agreement wherein they agreed to live separately and apart releasing any and all claims against each other by reason of their marriage contract entered into on the 15th day of August, 1905, all of which will more fully appear reference being had to the agreement filed herein.
5. I further report that the consideration for the execution of said agreement by and on behalf of the plaintiff Mamie L. Boswell was the consideration of $200.00.
6. I further report that the plaintiff and defendant have two boy children aged respectively twenty and thirteen and that the oldest child is now connected with the U.S. Marines stationed at Port Royal and the other boy, age thirteen, resides with his father in the City of Columbia, and that the said J.K. Boswell father of said children has been maintaining and supporting his wife and children when they were living together at Hartsville in the State of South Carolina, at Greenwood and Columbia and such other places as the testimony shows they have lived from time to time since marriage.
7. I further find that the testimony bears out the statement made in the contract or agreement that unhappy relations did exist between the man and wife from time to time and that the same had prior to the 20th of March, 1928, become unbearable and the parties could not live together peacefully as man and wife.
8. I further find as a matter of fact that the greater responsibility could not be placed on either of the parties, both being mutually disagreeable to the other.
9. I further find that the plaintiff Mamie L. Boswell is a lady of an age not less than forty years and is not in good health and is not educated or trained to enter any business or endeavors to make a living for herself, she having devoted twenty years or more as family woman and housewife to her children and her husband, J.K. Boswell.
10. I further find that since the execution and delivery of the agreement dated 20th of March, 1928, she, the plaintiff, has received some aid and assistance from her husband indirectly through the good counsel of her oldest son, all of which appears that her husband did furnish small amounts of money from time to time to his son, who would send the same to his mother for her maintenance and support.
11. I further find that the defendant J.K. Boswell is engaged in a successful business in the City of Columbia and that as far as could be ascertained from the testimony his income is reasonably $200.00 per month; that his business is manager or proprietor of the Imperial Barber Shop situate in the City of Columbia engaged in the general profession of barbering for men and hairdressing for ladies which said last mentioned feature led to some extent to the disagreement between the parties as man and wife.
12. I further find that under the circumstances surrounding the earning capacity of the defendant J.K. Boswell and the health of the plaintiff Mamie L. Boswell and the obligation placed upon a married man to support his wife and family that this Court should declare the consideration paid for the release and agreement totally inadequate and by its proper orders require the defendant J.K. Boswell to furnish sufficient money to his wife for her maintenance and support in as comfortable position or condition as her previous living conditions would warrant.
13. I would, therefore, recommend that the defendant J.K. Boswell be required to pay the sum of $50.00 per month for the maintenance and support of the plaintiff Mamie L. Boswell and that such payment be made direct to the plaintiff, her attorney or to the Clerk of Court as this Court in its discretion may deem best.
DECREEI have carefully considered the report of the Master, exceptions thereto, the evidence and arguments of counsel, and after due consideration I am of opinion that the Master's report should be confirmed and made the judgment of the Court and it is so ordered.
I am clearly of the opinion that the agreement for separation between plaintiff and defendant is supported by a grossly inadequate consideration and ought not to be upheld by the Court. If the wife were at fault as claimed there is ample evidence of condonation. It is therefore ordered that the defendant, J.K. Boswell, do pay to the plaintiff, Mamie L. Boswell, or to the Clerk of this Court for her benefit on or before the first day of each month, commencing June 1st, 1930, the sum of fifty dollars until the further order of the Court. It is further ordered that the defendant, J.K. Boswell, do pay to the Clerk of this Court as suit money for the benefit of plaintiff's attorneys the sum of one hundred and twenty-five dollars, but the defendant may pay the same in five installments of twenty-five dollars each commencing June 1st, 1930, or he may pay the same in full at any time if he so desires prior to June 1st, or he may anticipate any one or more of the instalments. Either party may apply for such other order as he or she may be advised at the foot of this decree.
Messrs. James H. Hammond and C.T. Graydon, for appellant, cite: Before alimony will be granted in this state the wife must be blameless: 91 S.C. 245; 113 S.C. 128; 115 S.C. 326; 10 Rich Eq., 163.
Mrs. S. Evelyn Lester and D.M. Winter, for respondent, cite: When alimony will be granted: 94 S.C. 204; 60 S.C. 426; 88 S.E., 272. Courts will carefully scrutinize separation contracts: 30 C.J., 1058; 161 N.Y., 550; 169 Mich., 540; 126 N.Y., 963; 30 C.J., 1060, 1061; 178 S.W., 1012.
July 18, 1931. The opinion of the Court was delivered by
The decree of his Honor, Judge Shipp, confirming the report of the master is entirely satisfactory to the Court, and it is accordingly affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.