Bennett v. Bennett
| Citation | 198 S.E.2d 114,260 S.C. 605 |
| Decision Date | 10 July 1973 |
| Docket Number | No. 19654,19654 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Elizabeth Wellford BENNETT, Respondent, v. William Paul BENNETT, M.D., Appellant. |
Herbert W. Louthian, of Louthian, Meeting & Merritt, Columbia, for appellant.
Robinson, McFadden, Moore & Pope, Columbia, for respondent.
This matter is before the Court on the plaintiff's motion for summary judgment. . . . Counsel for both parties agreed that there is no dispute as to the facts involved and that the only question before the Court is one of law.
The plaintiff and defendant were formerly husband and wife. They were divorced by decree of the Circuit Court of McDowell County, West Virginia, in the year 1958. At that time this was the Court of their matrimonial domicile and the decree recites that Dr. Bennett, who was the defendant in the divorce action, was before the Court and was represented by counsel.
The 1958 decree dissolved the marriage between the parties, awarded custody of the two minor children of the marriage of the plaintiff, their mother, with reasonable visitation rights to the defendant, their father. It also provided that the plaintiff was to take nothing by way of alimony then or at any time in the future and it made provision for an attorney's fee for plaintiff's counsel. It further ordered that the defendant pay to the plaintiff each month, until further order of the Court, the sum of $350.00 for support, maintenance and education of the two minor children who were then of very tender age. The decree also contained the following provision:
'The Court retains jurisdiction of this cause and of each of the parties hereto in respect to the custody, care, maintenance and support of said infant children, and reserves full authority to enter herein such amended or other decree in respect thereto as to this Court seems just and expedient upon the petition of either party and reasonable notice to the other party given by any means provided by law in whatever jurisdiction such other party may be found.'
The decree likewise contains the following provision:
'It is further ordered that this cause be omitted from the docket of this Court but subject to reinstatement at the request of the plaintiff or the defendant for further consideration of any matter affecting the custody, care, support, maintenance and education of the to aforesaid infant children.'
Busequent to the divorce of the parties, the defendant, Dr. Bennett, moved to Columbia, South Carolina, and established himself in medical practice. The plaintiff likewise moved from the State of West Virginia and she and the two minor children have been residents of Richmond, Virginia, for a number of years. By petition filed in the Circuit Court of McDowell County, West Virginia, in December, 1971, the plaintiff in this case petitioned the Court to reinstate the 1958 divorce action on its docket and to change, alter and revise the 1958 decree in certain particulars set out in the petition. The basis of this petition was that because of inflation and the advancing age of the two children and their impending need for college education, the plaintiff needed a greater sum for their support, maintenance and education.
On the basis of the plaintiff's petition, the Circuit Court for McDowell County issued its order on December 16, 1971, which directed that the petition be filed and that an arrested true copy of the petition and the Court's order be served upon the petitioner's former husband, Dr. Bennett. The Court further set a hearing on the matter for February 11, 1972, and it likewise ordered that the petitioner should be permitted to make discovery of the defendant on the issue of his financial ability to pay support. The petition and order were duly served upon the defendant who thereafter, by his counsel, filed a special notice of appearance in contest of jurisdiction. In his special appearance, Dr. Bennett, through his attorney, set up the fact that he is a resident of Richland County, South Carolina, and that he is entitled to have his case heard in the Courts of Richland County and that the Circuit Court of McDowell County does not have jurisdiction over his person.
The defendant did not file answer to the interrogatories directed to him and he did not appear in person or by counsel on February 11, 1972, when the plaintiff's petition had been noticed for hearing by the Circuit Court for McDowell County. At such time the plaintiff appeared by her counsel and the Court made certain findings of fact. On the basis of these it overruled the defendant's contest of the jurisdiction of the Court and set the plaintiff's petition for hearing on March 30, 1972. The defendant, through his counsel, was given notice of this hearing to be held on March 30th, but he did not appear in person or by counsel. At such hearing the plaintiff and her two minor children appeared and testified and the Court issued its order increasing the monthly support payments from $350.00 to $500.00 with the provision that upon the entry of the daughter of the parties into college in September, 1972, an additional $100.00 per month should be paid and that a like increase should be made when the son of the parties entered college. The order further provided that the defendant should pay an attorney's fee of $750.00 to plaintiff's counsel.
From the pleadings and the statement of the parties there is no question but that the defendant has paid regularly the sum of $350.00 per month since the granting of the original divorce decree in 1958. He has not, however, paid the additional sum provided for in the order issued following the March 30 hearing and neither has he paid the attorney's fee there ordered. It is by reason of this fact that the plaintiff brought the current action in the Court of Common Pleas for Richland County to establish the order of the Circuit Court for McDowell County dated May 2, 1972, as a valid foreign judgment and to require the defendant to pay all arrearages due under this order and to elicit the assistance of this Court by appropriate equitable remedies in the enforcement of the order of May 2, 1972. The plaintiff likewise seeks to recover a reasonable fee for her attorneys for the bringing of the current action.
As noted above, the West Virginia Court in 1958 reserved jurisdiction to issue future orders concerning the support, maintenance and education of the parties. This action was clearly in conformity with the provision of the West Virginia Code which are in evidence before the Court and, indeed, the defendant raises no question as to this matter. The following is quoted from the defendant's brief in opposition to the plaintiff's motion for summary judgment:
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...465 (1970); and, South Carolina in Johnson v. Johnson, 194 S.C. 115, 8 S.E.2d 351 (1940), which was reaffirmed in Bennett v. Bennett, 260 S.C. 605, 198 S.E.2d 114 (1973).' The appellee argues that he is not presently in arrears, under the Taxas decree, on his child support payments and that......
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...modifiable in Florida does not prevent the decree from being final. McLeod v. Sandy Island Corporation, supra; Bennett v. Bennett, 260 S.C. 605, 198 S.E.2d 114 (1973); Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593 (1941). Dr. Marshall has presented no proof that the decree has in any mann......
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Walker v. Frericks, 0418
...(Goolsby, J., concurring). Mrs. Walker relies on Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593 (1941) and Bennett v. Bennett, 260 S.C. 605, 198 S.E.2d 114 (1973), as support for her contention that the Florida decree may not be modified. We find neither of these cases persuasive of the is......
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Everhart v. Everhart, 19705
...(1956); Holly Hill Lumber Co. v. McCoy, 203 S.C. 59, 26 S.E.2d 175 (1943). Also of interest is our recent decision in Bennett v. Bennett, S.C., 198 S.E.2d 114 (1973). This result does not contravene the husband's right to due process of law as guaranteed by the Fourteenth Amendment of the U......