Gorecki v. Gorecki

693 S.E.2d 419, 387 S.C. 626
CourtCourt of Appeals of South Carolina
DecidedApril 5, 2010
Docket4669
StatusPublished
Cited by8 cases

This text of 693 S.E.2d 419 (Gorecki v. Gorecki) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gorecki v. Gorecki, 693 S.E.2d 419, 387 S.C. 626 (S.C. Ct. App. 2010).

Opinion

387 S.C. 626 (2010)
693 S.E.2d 419

Leah GORECKI, Respondent,
v.
Jeffrey Anthony GORECKI, Appellant.

No. 4669.

Court of Appeals of South Carolina.

Heard February 10, 2010.
Decided April 5, 2010.
Rehearing Denied June 4, 2010.

*631 C. Lance Sheek, of Greenwood, for Appellant.

LaDonna Sargent Johnson, of Greenwood, for Respondent.

WILLIAMS, J.

In this appeal, Jeffrey Gorecki (Husband) contends the family court erred in (1) awarding Leah Gorecki (Wife) a divorce on the grounds of physical cruelty while denying Husband a divorce on the grounds of adultery; (2) awarding Wife 40% of the marital residence; (3) awarding Wife permanent periodic alimony; and (4) granting Wife attorneys' fees and costs. We affirm.

FACTS

Husband and Wife married on November 20, 1975. They had three children during the course of their marriage, all of whom were emancipated before the parties' separation in September 2005. At the time of the hearing, Wife worked with mentally disabled children at a middle school, and Husband worked at Cooper Power Systems where he was earning approximately $51,000 per year.

Shortly after the parties separated, Wife filed for divorce on the ground of physical cruelty, seeking spousal and child support, equitable division of the marital estate, and attorneys' fees. Husband counterclaimed, seeking a divorce based on adultery and requesting custody[1] of their granddaughter, equitable division of the marital estate, and attorneys' fees.

*632 At the final hearing on October 2 and 3, 2006, Wife testified to several instances of physical abuse in support of her claim that Husband was physically abusive. In response to Wife's allegations of abuse, Husband claimed Wife had previously engaged in an extramarital affair.[2] After hearing testimony from both parties and their respective witnesses, the family court issued an order on November 9, 2006, awarding Wife a divorce on the grounds of physical cruelty. The family court granted Wife $1,000 per month in permanent periodic alimony, divided the Husband's pension and 401(k) on a 50/50 basis, and split the marital residence on a 60/40 basis in favor of Husband. The family court also required Husband to pay $8,038.65 in Wife's attorneys' fees and costs. This appeal followed.

STANDARD OF REVIEW

On appeal from a family court order, this court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). When reviewing decisions of the family court, we are cognizant of the fact the family court had the opportunity to see the witnesses, hear "the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character." DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972) (internal citation and quotations omitted).

LAW/ANALYSIS

1. Grounds for Divorce

Husband contends the family court erred in awarding Wife a divorce based on physical cruelty when he presented evidence entitling him to a divorce based on Wife's adultery. We disagree.

*633 Physical cruelty is "actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe." Brown v. Brown, 215 S.C. 502, 508, 56 S.E.2d 330, 333 (1949). 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 "preponderance of the evidence" is evidence which convinces as to its truth. DuBose, 259 S.C. at 424, 192 S.E.2d at 331.

Similarly, proof of adultery must be "clear and positive and the infidelity must be established by a clear preponderance of the evidence." McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct.App.1987) (internal citation and quotations omitted). Because of the "clandestine nature" of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses is rarely possible, so direct evidence is not necessary to establish the charge. Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct.App. 1987). Accordingly, adultery may be proven by circumstantial evidence; however, evidence placing a spouse and a third party together on several occasions, without more, does not warrant a finding of adultery. Hartley v. Hartley, 292 S.C. 245, 246-47, 355 S.E.2d 869, 871 (Ct.App.1987).

Generally, "proof [of adultery] must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed." Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74 (Ct.App.1985). Furthermore, when issues relate to proof regarding which party, if either, is entitled to a divorce, and the evidence is conflicting and susceptible of different inferences, it becomes the family *634 court's duty to determine not only the law of the case but the facts as well because the family court observed the witnesses and could determine how much credence to give each witness's testimony. Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985).

In this case, Wife testified to many instances of physical abuse at the hands of Husband over the course of their marriage. She stated Husband slapped her, pushed her into a wall, and knocked her to the ground while they lived in Michigan in the 1980s. Wife also claimed Husband continued to abuse her when they were living in South Carolina, including instances of Husband hitting, shoving, slapping, and cursing at her, which resulted in Wife calling police several times and being hospitalized on one occasion. At least one of these episodes was documented by a police incident report and photographs of Wife's bruises. The parties' eldest daughter corroborated Wife's account of Husband's abuse at the hearing. In contrast to her older sister, the parties' youngest daughter stated that while her parents argued, she never witnessed Husband physically abuse Wife, and to her knowledge, he had never hit or pushed Wife.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David Lucas v. Angel Lucas
Court of Appeals of South Carolina, 2025
Mackenzie Blackmon v. Michelle Blackmon
Court of Appeals of South Carolina, 2023
Thornton v. Thornton
Court of Appeals of South Carolina, 2019
Menefee v. Menefee
Court of Appeals of South Carolina, 2017
Gooden v. Gooden
Court of Appeals of South Carolina, 2016
Pascoe v. Wilson
416 S.C. 628 (Supreme Court of South Carolina, 2016)
Yasmine S. Hamad v. Sammy N. Hamad
739 S.E.2d 232 (Court of Appeals of Virginia, 2013)
Budreau v. Budreau
Court of Appeals of South Carolina, 2012

Cite This Page — Counsel Stack

Bluebook (online)
693 S.E.2d 419, 387 S.C. 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorecki-v-gorecki-scctapp-2010.