Cannon v. Cannon, 21794

• Decision Date: 05 October 1982
• Docket Number: No. 21794,21794
• Citation: 295 S.E.2d 875,278 S.C. 346
• Court: South Carolina Supreme Court
• Parties: Patricia S. CANNON, Respondent, v. Howard R. CANNON, Appellant.

Page 875

295 S.E.2d 875

278 S.C. 346

Patricia S. CANNON, Respondent, v. Howard R. CANNON, Appellant.

No. 21794.

Supreme Court of South Carolina.

Oct. 5, 1982.

W. Paul Culbertson, Laurens, for appellant.

C. Rauch Wise, Greenwood, for respondent.

LITTLEJOHN, Justice:

This action was commenced in the Court of Common Pleas by Respondent, Patricia S. Cannon (Wife) against the Appellant, Howard R. Cannon (Husband) seeking an equitable interest in the marital home titled in the Husband's name. A basic issue submitted to the lower court and, in turn, to this Court, is whether the Court of Common Pleas should have awarded an equitable interest in this property to the Wife under the facts enumerated hereafter. We hold that the judge erred in failing to dismiss the action.

The Husband and Wife were married in 1966. In 1971, they moved into the marital home which is the subject of the dispute we now consider. They continued to reside in this house until separated in 1978; in that year their personal property was divided by order of the Family Court. See Cannon v. Cannon, 275 S.C. 424, 272 S.E.2d 179 (1980). Only distribution of personal property was there involved.

The Husband commenced a divorce action in the Family Court on April 7, 1979, requesting not only a divorce but also equitable division of real property jointly owned by the parties. The Complaint made no mention of property owned by the Husband individually; nor was it mentioned in the Wife's Answer.

The Husband was granted a divorce by the Family Court on the ground of adultery and an equitable distribution of the jointly owned property was made by the Family Court judge in July, 1979. No appeal was taken.

Six days after the commencement of the Husband's divorce action in the Family Court, the Wife (on April 13, 1979) commenced this action in the Court of Common Pleas requesting an equitable interest in the marital home; she alleged that she made a significant contribution to the down payment, plus mortgage payments. At the hearing on the merits, the Wife stipulated that she did not claim an equitable interest in the marital home as a result of a constructive or resulting trust. The Husband generally denied the material allegations of the Complaint and alleged that the Court of Common Pleas did not have jurisdiction to vest the Wife with equitable interest in his marital home titled in his name. He also pled collateral estoppel.

On March 25, 1980, the judge of the Court of Common Pleas granted the prayer for relief of the Wife, holding that his court did have jurisdiction and that the Wife was entitled to equitable interest in the marital home. It is from this Order that the appeal is now before our Court.

The trial judge stated the question properly, as follows: "... whether or not the equitable interest of the wife in the marital home must be litigated only in the Family Court." He disposed of the issue as follows:

The Court concludes that it is erroneous to hold that such issues are in the exclusive jurisdiction of the Family Court. Section 14-21-1020 S.C.Code of Laws 1976 (Cum.Supp.1979) provides that the Family Court shall have the power and authority of the Circuit Court for the settlement of all real and personal property issues of the marriage, "if requested by either party in the pleadings". Quite clearly neither party has requested that this issue be disposed of in any of the divorce pleadings filed in the Family Court. Thus, this section sets up a concurrent jurisdiction of the Family Court and the Circuit Court to determine such equitable interest, but the Family Court has jurisdiction only if the parties request it. In addition, the Supreme Court has repeatedly recognized that the mere fact that a cause of action may arise out of the marital relationship of the parties does not vest the Family Court with exclusive jurisdiction. See, e.g. Zwerling, 273 S.C. 292, 255 S.E.2d 850 (1979); McGrew vs. McGrew, 273 S.C. 556, 257 S.E.2d 743; Elliott vs. Green, 274 S.C. 348, 263 S.E.2d 650, 1980.

Our 1976 Code § 14-21-1020, as amended, upon which the judge relied, recites the authority of the Family Court as follows:

The Court shall have all power, authority and jurisdiction by law vested in the circuit courts of the State in actions for divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation...