Clinkscales v. Clinkscales, 18146

CourtUnited States State Supreme Court of South Carolina
Citation134 S.E.2d 216,243 S.C. 377
Decision Date30 December 1963
Docket NumberNo. 18146,18146
PartiesMartin L. CLINKSCALES, Respondent, v. Ann H. CLINKSCALES, Appellant.

Frank Sawyer, Spartanburg, for appellant.

Rex L. Carter, Leo H. Hill, Greenville, for respondent.


The appellant, Ann H. Clinkscales, was awarded a divorce from the respondent, Martin L. Clinkscales, and custody of their children, two young girls, by a decree of the Court of Common Pleas for Anderson County dated June 12, 1961. Appellant moved from Anderson to Greenville, taking the children with her, and respondent brought this action against her for the custody of the children in the Court of Common Pleas of Greenville County. The complaint alleges that appellant has been guilty of serious misconduct since the divorce and is not a fit and proper person to have custody of minor children. A rule to show cause why temporary custody should not be awarded to respondent was issued.

The appellant moved to dismiss the action upon the ground that the court by which the divorce decree was issued has continuing, exclusive jurisdiction of questions concerning the custody of the children. She also filed an 'answer and return' by which she denied the jurisdiction of the court and pleaded in abatement that the divorce action was pending for the determination of questions touching the custody of the children.

The circuit judge refused to dismiss the action and awarded temporary custody of the children to respondent. The sole question involved on this appeal is whether the court erred in assuming jurisdiction.

In concluding that the action was properly brought in Greenville County, the circuit judge, relying upon Danziger v. Shoob, 203 Ga. 623, 48 S.E.2d 92, gave controlling weight to Sec. 10-303, Code of 1962, which fixes the venue of actions, generally, in the county of defendant's residence.

On analogous facts to those involved here, it was held in Danziger v. Shoob, supra, that the divorce court had no jurisdiction of a proceeding for the custody of children residing with the divorced wife in another county. However, the decision is not persuasive here because it rested on the absence of a Georgia statute vesting jurisdiction of future proceedings involving custody of children in the divorce court. Our statute, Sec. 20-115, expressly provides that the divorce court may 'from time to time after final judgment' make such orders touching the care, custody and maintenance of the children of the marriage as may be fit, equitable and just.

We quote from Re Blake, 184 N.C. 278, 114 S.E. 294, in which a statute of like tenor was construed.

'Under our statute (section 6664, Consol.Statutes) a divorce suit is pending for the purpose of an order as to the custody of children after as well as before final judgment. This statute expressly vests in the divorce court the power to award the custody of children, and from time to time to modify or vacate its orders, and the necessary implication is that this jurisdiction is exclusive.'

The same rule was applied in...

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4 cases
  • Porter v. Porter
    • United States
    • United States State Supreme Court of South Carolina
    • 5 d4 Agosto d4 1965
    ...of children, and the granting of alimony and support money, and such jurisdiction is continuing and exclusive. Clinkscales v. Clinkscales, 243 S.C. 377, 134 S.E.2d 216. It follows that the Circuit Judge committed error in attempting to reserve jurisdiction of the action in the Circuit The T......
  • Haley v. Edwards, 69--553
    • United States
    • Court of Appeal of Florida (US)
    • 25 d3 Março d3 1970
    ...842.3 Ladner v. Ladner, Miss.1968, 206 So.2d 620; Mayhew v. Mayhew, 1964, 52 Tenn. App. 459, 376 S.W.2d 324; Clinkscales v. Clinkscales, 1963, 243 S.C. 377, 380, 134 S.E.2d 216; Greene v. Superior Court, 1951, 37 Cal.2d 307, 231 P.2d 821. See 146 A.L.R. 1167. In Frye v. Frye, Fla.App.1967, ......
  • Heckle v. Heckle, 20177
    • United States
    • United States State Supreme Court of South Carolina
    • 1 d1 Março d1 1976 issue the present order changing the custody previously adjudicated, relying upon the decision of this Court in Clinkscales v. Clinkscales, 243 S.C. 377, 134 S.E.2d 216. The alternative position is taken that, assuming jurisdiction of the Family Court to consider the question of custody,......
  • Smollar v. Smollar, 21518
    • United States
    • United States State Supreme Court of South Carolina
    • 9 d4 Julho d4 1981
    ...within the state, we have held the family court granting the divorce has continuing, exclusive jurisdiction. Clinkscales v. Clinkscales, 243 S.C. 377, 134 S.E.2d 216 (1963). There is ample basis for expanding this rule to cover a case where one of the parties to a South Carolina divorce dec......

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