¶1(dissenting) :
¶2I respectfully dissent and would reverse the judgment of the lower court to the extent that it found the husband guilty of adultery.
¶3In Odom v. Odom, 248 S. C. 144, 149 S. E. (2d) 353 (1966), we discussed the requirements of proof in adultery cases:
“The proof of adultery as a ground for divorce must be clear and positive and the infidelity must be established by a clear preponderance of the evidence. The proof must be sufficiently definite to identify the time and place of the offense, and the circumstances under which it was committed. It is not necessary that the fact of adultery be proved by direct evidence, but it may be sufficiently proved by indirect or circumstantial evidence, or it may be proved by evidence consisting in part of both, however, if after due consideration of all the evidence proof of guilt is inconclusive, a divorce will be denied.” (Emphasis added.)
¶4The complaint alleges that the husband “was having then and still is having an adulterous affair with said woman.” The woman is not named but is referred to as a business acquaintance. The evidence establishes beyond question that the woman referred to was Sandra. The time, place and circumstances of the adulterous conduct are not alleged. Some evidence was presented relative to improper conduct with Annette.
¶5The trial judge does not find the husband guilty of adultery with either Annette or Sandra, but says, “The entire testimony taken as a whole leads me to only one conclusion and that is that the Respondent-husband is guilty of adultery and that the Petitioner-wife is entitled to a divorce a vinculo matrimonii "
¶6We have the unusual situation of the plaintiff alleging adultery by her husband with Sandra, who was identified by inference. The proof is aimed at both Sandra and An*426nette. The lower court finds the husband guilty of adulterous conduct in general. The majority opinion tacitly admits the charge of adultery with Sandra is not sufficiently proved, and holds that the circumstantial evidence submitted is sufficient to prove adultery with Annette, who was not even inferentially mentioned in the complaint.
¶7The majority opinion weakens the rule set forth in Odom, supra. It alludes to the necessity of proof sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed. The impact of the established rule is then lessened by stating:
“Insufficiency in this respect, however, should not be allowed to defeat a divorce where the Court is fully convinced that adultery has, in fact, been committed and the defendant has had full opportunity to defend against or refute the charge.”
¶8In the light of the Odomrequirements, it is not sufficient to say that approximate times, places and circumstances have been proved. In actuality, an adulterous act has not been proved either directly or circumstantially. Therefore, I would hold that the finding of the circuit judge does not warrant the conclusion that plaintiff’s case has been proved by the “clear preponderance of the evidence.” I would otherwise affirm the lower court.