Physical cruelty is one of South Carolina’s four fault divorce grounds. Physical cruelty is “actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe.” Gorecki v. Gorecki, 387 S.C. 626, 693 S.E.2d 419 (2010). In considering what acts constitute physical cruelty, the family court must consider the circumstances of the particular case. Gibson v. Gibson, 283 S.C. 318, 322, 322 S.E.2d 680, 682 (Ct.App.1984). A single assault by one spouse upon the other spouse can amount to physical cruelty. McDowell v. McDowell, 300 S.C. 96, 99, 386 S.E.2d 468, 469 (Ct.App.1989). The assault must, however, be life-threatening or must be either indicative of an intention to do serious bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future. Gibson, 283 S.C. at 323, 322 S.E.2d at 683. The party alleging physical cruelty has the burden of proving it by a preponderance of the evidence. Wood v. Wood, 269 S.C. 600, 605, 239 S.E.2d 315, 317 (1977).
“[A] divorce will not be granted on the ground of physical cruelty when the acts of cruelty complained of were provoked by the misconduct of the complaining spouse. However, that there was some provocation will not disentitle a spouse to relief if the retaliatory cruelty complained of was out of proportion to the provoking conduct.” Godwin v. Godwin, 245 S.C. 370, 140 S.E.2d 593 (1965).
Differences in physical size between spouses can be considered in determining whether an act of violence was sufficient to render cohabitation unsafe. In Brown v. Brown, 250 S.C. 114, 156 S.E.2d 651 (1967) the Supreme Court reversed a grant of a physical cruelty divorce to husband, noting:
We find it difficult to believe that the husband, who was five feet, eleven inches tall and weighed two hundred twenty pounds was put in fear for his life by his wife. If he was fearful of personal violence on March 5 or 6, 1965, why did not be call the police? Once the policeman was summoned by the wife on March 5, 1965, he took no step toward lodging a complaint against his wife. He testified that he could have walked away from the altercations on both March 5 and 6, 1965. The record reasonably suggests that each party shared in the responsibility for provoking the difficulties, that neither was willing to turn the other cheek. Perhaps we could call it a case of mutual stubbornness. Harmony between the parties is not automatic in marriage. The general unpleasantness of the wife is a risk assumed by the husband with marriage; however it is not a statutory ground for divorce.
Actual physical contact or bodily injury is not required to sustain a physical cruelty divorce. In Gibson, supra, the Court of Appeals reversed and remanded the family court’s denial of a physical cruelty divorce. The facts that potentially gave rise to a physical cruelty divorce without actual physical injury were:
[I]n late June, 1981, the wife moved out of the marital home altogether following an argument that concluded with the husband expressing a desire for a divorce. Some days later, the wife returned to the marital home at an early morning hour in a heavily intoxicated condition. An argument with her husband ensued. During the quarrel, the wife went into her bedroom, locked the door, and fetched a .22 caliber rifle kept in a closet. She then shot through her closed bedroom door 16 times with the rifle. The husband claims that a “small splinter” struck him on the face when the wife fired the first shot. The wife, however, says that the husband was in his bedroom and not outside her door at the time she started shooting.
The Court of Appeals remanded the case for determinations of “whether the wife directed actual violence at her husband,” “whether the wife’s single act of violence actually endangered the husband’s life or whether the act manifested an intention on her part to cause the husband serious bodily harm or constituted a reasonable basis for believing the husband might later be seriously hurt” and “whether the husband provoked the wife’s conduct and, if so, whether her conduct was out of all proportion to any provocation.”
In Gorecki, supra the Supreme Court affirmed the family 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.
There are few recent reported cases in which a physical cruelty divorce was denied. One exception is Carpenter v. Burr, 381 S.C. 494, 673 S.E.2d 818 (Ct.App.2009), writ dismissed as improvidently granted, 394 S.C. 518, 716 S.E.2d 295 (2011). In Carpenter, the family court denied Wife’s request for a physical cruelty divorce, finding “that the altercation leading to the parties’ estrangement was the only incident of alleged physical cruelty” and that Wife may have been the aggressor in another incident.
In affirming, the Court of Appeals found that Husband’s nolo contendere plea to an assault and battery charge arising from the incident that led to the parties’ separation could not be used to support Wife’s claim. It further found that Husband’s admissions to acts of physical violence in counseling could not be used to support Wife’s claim, even though Wife was present for those counseling sessions because the prohibition in S.C. Code § 19-11-95(D)(1) against the use of “confidences revealed” during the course of treatment from a mental health provider. Finally it found that altercations before the parties’ marriage and after the separation could not be used to support Wife’s claim of physical cruelty.
A denial of sex does not constitute physical cruelty. Vickers v. Vickers, 255 S.C. 25, 176 S.E.2d 571 (1970). A nagging spouse who prevents the other spouse from sleeping does not constitute physical cruelty. Lindsey v. Lindsey,246 S.C. 282, 143. S.E.2d 524 (1965). A conspiracy to murder a spouse is not physical cruelty if no attempt is made to carry out the plan. Sharpe v. Sharpe, 307 S.C. 540, 416 S.E.2d 215 (Ct. App. 1992).
