Trying (unsuccessfully) to locate a case referenced by Professor Roy T. Stuckey dealing with connivance from the days before South Carolina allowed divorce (1949-50), I ended up reviewing alimony cases of the early 20th century. It was interesting seeing what behaviors riled spouses, or the South Carolina Supreme Court, a century ago. Before South Carolina authorized divorce a wife’s only option for a husband’s intolerable behavior was to leave the home and sue for alimony. Generally, in order to obtain alimony “the conduct of the wife must be blameless.” Nicholson v. Nicholson, 115 S.C. 326, 105 S.E. 700 (1921). Few humans could meet this standard and, at least from a review of the Supreme Court opinions of this era, few women were being awarded alimony from the circuit courts (there was no family court then)–and sometimes these alimony awards would be reversed by the Supreme Court (there was no Court of Appeals either).
An even earlier, and frankly bananas, opinion is Hair v. Hair, 31 S.C. Eq. 163, 10 Rich. Eq. 163 (1858). There Husband promised Wife not to move her away from her mother if she married him. Based on this promise, she married him and bore him a daughter. He clandestinely moved to Louisiana, even taking Wife’s slaves with him–one of whom escaped and returned to Wife. Wife, refusing to follow, filed for and obtained alimony and Husband appealed.
The Supreme Court reversed. It noted Husband’s promise not to remove Wife from her mother–a promise Husband denied but the court determined Wife conclusively established–created a moral obligation but did not overcome Wife’s duty to follow him: “The husband has the right, without the consent of the wife, to establish his domicil in any part of the world, and it is the legal duty of the wife to follow his fortunes, wheresoever he may go.” It therefore reversed Wife’s alimony award.
In the overly decorous language common to 19th century opinions involving marital issues, the Supreme Court hints one of the Hairs was committing adultery:
In considering this case, I have confined myself to the issues presented in the pleadings, to which I think the investigation should be restricted. On the trial, there was evidence introduced (some of which was of a very indelicate nature,) that was not pertinent to the allegations of the bill. This evidence has not been commented on in this opinion, but it has been considered. And I will say, that if there had been allegations and charges in the bill, to which this evidence would have been pertinent, it would not have varied the result of the case. Adultery, of itself, though it is a ground for divorce in the ecclesiastical courts, is no ground for alimony in this State.
One would think if this was Wife’s adultery it would be sufficient to bar her alimony claim and if it was Husband’s adultery it would overcome Wife’s duty to follow him. The secret of who committed this act too indelicate to mention died with Justice Dargan.
Hair also notes the three class of cases in which a Wife could obtain alimony. Unlike England, South Carolina did not allow divorce and, other than a brief period in the 1870’s when adultery would allow divorce, it would not authorize divorce until the late 1940’s. Two of those classes were adultery and desertion. The third class:
in which, though the husband has inflicted or threatened no bodily injury upon the wife, yet practices such obscene and revolting indecencies in the family circle, and so outrages all the sentiments of delicacy and refinement characteristic of the sex, that a modest and pure minded woman would find these grievances more dreadful and intolerable to be borne, than the most cruel inflictions upon her person, she would be held justifiable in fleeing from the polluting presence of that monster, with whom in an evil hour she had united her destinies. The Court would not hold her bound to such loathsome bondage, and would regard her as driven forth from the foul dwelling of the husband by a moral compulsion more irresistible and terrible than the fear of death.
What “obscene and revolting indecencies” might gave rise to an alimony claim have been lost to history. I’m thinking fellatio or “butt stuff,” but that could simply be a 21st century mind trying to understand (and likely misunderstanding) 19th century culture.
In Wise v. Wise, 60 S.C. 426, 38 S.E. 794 (1901), the Supreme Court denied wife her requested alimony, finding her complaints simply didn’t justify her leaving. For example:
[T]he alleged refusal by the husband to allow his wife to put a clean tablecloth on the table, and upon another occasion requiring her to use a carpet as a tablecloth; which, if true, are very reprehensible, but they certainly do not amount to legal cruelty.
Id., 38 S.E at 805. Further, Wise returns to Hair’s concern over a Husband’s “practices” of “obscene and revolting indecencies.” Again, the Supreme Court is too decorous to list the “obscene and revolting indecencies” that led Mrs. Wise to leave her husband. It was enough to note that his language did not amount to threats of bodily injury. Justice Pope dissented, finding husband’s behavior too intolerable for wife to accept and believing she was entitled to alimony.
Over a century later I feel for Mrs. Wise; her situation is both sad and funny. Her husband has a nasty disposition and she sits down to every meal with a dirty tablecloth or even a piece of carpet. There’s no marriage counselor to help her husband learn to respect her dignity, no Oprah to empower her. Her friends are probably equally cowed by domineering husbands and cannot offer support. Divorce isn’t an option. Few women were educated at that time and few good career paths were open to them. Antidepressant medication won’t be invented for another eighty-plus years. She is merely expected to suffer. Was Justice Pope a softy or the most enlightened man in South Carolina in 1901 (or both)? Yet Mrs. Wise’s situation remains funny because I can see contemporary spouses having the exact same dumb arguments over tablecloths that consumed the Wise family a century ago. Our culture changes quickly; humans less so.
A few years later, in Levin v. Levin, 68 S.C. 123, 46 S.E. 945, 948 (1904), the Supreme Court, while reversing and remanding a circuit court decision denying Mrs. Levin alimony, noted the following factors that lead to a denial of alimony:
If she elopes, or commits adultery, or violates or omits to discharge any of the important hymeneal obligations which she has assumed upon herself, the husband may abandon her without providing for her support.
I suspect, but am by no means certain, I know what “important hymeneal obligations” are. I handled an appeal in 1999 in which a wife’s lack of marital intimacies was treated as one reason to deny her alimony. That decision was affirmed in an unpublished opinion and the section discussing this issue cited no legal authority. Perhaps Levin is the legal authority. I look forward to litigating alimony claims in which a wife’s failure to discharge “important hymeneal obligations” is raised as a defense. Further is Levin subject to an equal protection argument because there are no “important hymeneal obligations” for a husband to discharge?
A final interesting case I located was Lynch v. Lynch, 138 S.C. 1, 136 S.E. 25, 27 (1926), in which the Supreme Court notes:
That the husband lived in adultery with another woman is a circumstance entitling the wife whom he has abandoned to a large share of his income.
This much has not changed in the past eighty-four years.
Greg, maybe Viagra would now empower such a husband to discharge his “important hymeneal obligations” to avoid such a defense.