Armaly v. Armaly

• Decision Date: 29 April 1980
• Docket Number: No. 21210,21210
• Citation: 274 S.C. 560,266 S.E.2d 68
• Court: South Carolina Supreme Court
• Parties: Elias ARMALY, Respondent, v. Ilham ARMALY, Appellant.

Page 68

266 S.E.2d 68

274 S.C. 560

Elias ARMALY, Respondent, v. Ilham ARMALY, Appellant.

No. 21210.

Supreme Court of South Carolina.

April 29, 1980.

James C. Parham, Jr., of Wyche, Burgess, Freeman & Parham, Greenville, for appellant.

Charles E. Howard, of Griffin & Howard, Greenville, for respondent.

HARWELL, Justice:

This is an action for divorce on the grounds of physical cruelty. The primary issue is the denial by the trial court of appellant's motion for temporary separate maintenance and support and attorney's fees pendente lite. We affirm.

Respondent, Elias Armaly had resided in Greenville since 1975. In May of 1977 appellant, Ilham Armaly came to this country and they were married residing in respondent's parents home. By mid-September of 1977, the relations between the parties had deteriorated to the point that respondent had a divorce summons and complaint prepared and served on appellant by respondent's attorney in his office on October 15, 1977. Respondent afterwards accompanied appellant to New York where he placed her on a plane to Israel. She has been in Israel since October 21, 1977.

Appellant filed a general denial on November 3, 1977. An amended answer and counter-claim seeking separate maintenance and support, attorney's fees, expenses for return to this country and temporary maintenance and support and attorney's fees pendente lite was filed with a motion seeking an order for the interim relief. The trial judge denied appellant's request for temporary separate maintenance and support and attorney's fees pendente lite, but did order respondent to pay for his wife's one-way travel expenses from Israel to the United States for the trial of this matter. The judge's denial of the bulk of the relief sought was based on his finding that no testimony was presented to substantiate the claim for relief. In addition, the judge ordered that a final hearing on the merits be held within two days of appellant's return to this country.

The allowance of temporary separate maintenance and support, or temporary alimony, and attorney's fees pendente lite is a matter largely addressed to the discretion of the trial judge. His ruling will not be disturbed on appeal unless the appellant can show abuse of discretion. Peay v. Peay, 260 S.C. 502, 197 S.E.2d 89 (1973); Simonds v. Simonds, 225 S.C. 211, 81 S.E.2d 344 (1954). We have reviewed the entire record in this case and conclude that there was no abuse of discretion.

The law as relates to temporary alimony and attorney's fees pendente lite has undergone substantial change since Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). Prior to this decision, South Carolina long followed the privileged suitor doctrine whereby the wife only was considered for alimony and attorney's fees relief. Smith v. Smith, 51 S.C. 379, 29 S.E. 227 (1898); Armstrong v. Armstrong, 185 S.C. 518, 194 S.E. 640 (1938); Jeffords v. Jeffords, 216 S.C. 451, 58 S.E.2d 731 (1950); Poliakoff v. Poliakoff, 221 S.C. 391, 70 S.E.2d 625 (1952); Simonds v. Simonds, 225 S.C. 211, 81 S.E.2d 344 (1954).

In 1949, 46 S.C. Statutes at Large, Act 137 was enacted which adopted the rule already crystalized in prior decisions:

In every action for divorce from the bonds of matrimony, the wife, whether she be plaintiff or defendant, may in her complaint or answer or by petition pray for the allowance to her of alimony and suit money, and for the allowance of such alimony and suit money pendente lite ; and if such claim appear well founded the court shall allow a reasonable sum therefor.

With some grammatical changes Act 137 was codified as Section 20-122, S.C.Code Ann. (1952). (Now § 20-3-120, S.C.Code Ann. (1976)).

The United States Supreme Court in Orr v. Orr, supra, struck down an Alabama statutory scheme imposing alimony obligations on husbands but not wives as violative of the Equal Protection Clause of the Fourteenth Amendment. The South Carolina Legislature then amended Section 20-3-120, S.C.Code Ann. (1976) to read as follows:

In every divorce action from the bonds of matrimony either party may in his or her complaint or answer or by petition pray for the allowance to him or her of alimony and suit money and for the allowance of such alimony and suit money pendente lite. If such claim shall appear well-founded the court shall allow a reasonable sum therefor.

The effect of this statute is to supersede our prior privileged suitor doctrine by making the...