Opinion
19443
June 28, 1972.
John Bolt Culbertson, Esq., of Greenville, for Defendant-Appellant, cites: As to the necessity for the Court to appoint a Guardian ad Litem to Represent the Appellant in the action: Section 10-435 of the Code of Laws of South Carolina (1962). As to the Court's erring in requiring the Appellant to post a surety bond to cover the Respondent's costs and expenses on this appeal to the Supreme Court: Section 7-424 and Section 15-123 of the Code of Laws of South Carolina (1962).
Messrs. Chapman Lowery, of Anderson, for Plaintiff-Respondent, cite: As to the Court's sufficiently determining the amount of income and expenses of the Respondent and Appellant before issuing its order for the Appellant to pay the Respondent for support of the minor children: 237 S.C. 532, 118 S.E.2d 171. As to question of the Court's taking into account the fact that the Appellant is a disabled person: Section 20-303, South Carolina Code of Laws 1962. As to the Court's properly requiring the Appellant to post a surety bond to cover the Respondent's cost and expenses on this appeal: Section 20-112, South Carolina Code of Laws, 1962; Section 15-123 of the South Carolina Code of Laws of 1962; Section 7-424 of the South Carolina Code of Laws of 1962.
June 28, 1972.
In this divorce action the plaintiff wife was granted a divorce on the ground of habitual drunkenness. The action was commenced on November 14, 1970; was contested and a hearing held on the merits on August 9, 1971. The decree of divorce was entered on September 15, 1971. With the consent of defendant's original counsel, his present counsel was substituted by order of the court dated September 29, 1971. Present counsel moved, unsuccessfully, to vacate the divorce decree on the ground, inter alia, that the defendant was a "disabled person and was not able to properly assist in his defense."
Only two questions for consideration of this Court are raised by proper exceptions. First it is contended that the trial judge abused his discretion in ordering the defendant to pay the plaintiff $89.00 per month for the support of the minor children of the parties. A review of the record and a consideration of the briefs fail to convince us of any abuse of discretion in this respect. No useful purpose could be served by discussing all of the evidence.
It is also contended that the court should have appointed a guardian ad litem to represent the defendant in the action. This issue was first raised by the motion to vacate the divorce decree and upon consideration thereof the trial judge found, inter alia, that there was no evidence that the defendant was under a mental disability at any time during the proceedings which would prevent him from properly assisting with his defense. Such constitutes a finding of fact binding upon this Court unless unsupported by the evidence. Thompson v. Moore, 227 S.C. 417, 88 S.E.2d 354. A review of the record here shows such finding to be quite fully supported by the evidence.
Affirmed.
MOSS, C.J., and LEWIS, BRAILSFORD and LITTLEJOHN, JJ., concur.