Gibson v. Gibson

¶1(concurring and dissenting):

¶2I disagree with the majority holding there is insufficient evidence to grant the husband a divorce on the ground of physical cruelty. The firing of a gun sixteen times by one spouse toward another is sufficient to place the bravest of persons in fear of his life. “Physical cruelty, as used in divorce law, has generally been defined by our courts as actual personal violence, or such other course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe.” Brown v. Brown, 215 S. C. 502, 56 S. E. (2d) 330, 333 (1949). To hold it is necessary to find actual physical injury would allow tantalizing conduct barely short of actual injury and permit terrorism in the home. The Supreme Court has held that even if the complaining spouse provoked the cruelty, she should not be “disentitled” to relief “if the retaliatory cruelty... complained of is out of all proportion to the provoking conduct.” Miller v. Miller, 225 S. C. 274, 82 S. E. (2d) 119, 122 (1954). Domestic tranquility must be promoted by the courts and the General Assembly.2 Under existing criminal laws the wife could be charged with a serious offense. To let the same conduct go unnoticed in the domestic law context would be inconsistent. Therefore, I would grant the divorce.