Collins v. Collins

• Decision Date: 02 November 1960
• Docket Number: No. 17707,17707
• Citation: 116 S.E.2d 839,237 S.C. 230
• Court: South Carolina Supreme Court
• Parties: Marilyn P. COLLINS, Respondent, v. Charles A. COLLINS, Robert Perry Collins, a minor under the age of fourteen (14) years, D. Reece Williams and J. Laurence McNeill, as Trustees for Charles A. Collins, of which Charles A. Collins is, Appellant.

Page 839

116 S.E.2d 839

237 S.C. 230

Marilyn P. COLLINS, Respondent, v. Charles A. COLLINS, Robert Perry Collins, a minor under the age of fourteen (14) years, D. Reece Williams and J Laurence McNeill, as Trustees for Charles A. Collins, of which Charles A. Collins is, Appellant.

No. 17707.

Supreme Court of South Carolina.

Nov. 2, 1960.

McEachin, Townsend & Zeigler, Florence, for appellant.

Murchison, West & Marshall, Camden, for respondent.

MOSS, Justice.

This is an action brought in Kershaw County by Marilyn P. Collins, the respondent herein, to procure an absolute divorce and incidental relief from her husband, Charles A. Collins, the appellant herein, on the grounds of desertion and physical cruelty. Section 20-101(2) and (3) of the 1952 Code of Laws of South Carolina. The summons was served on the appellant by publication. Section 20-107 of the 1952 Code of Laws of South Carolina.

It appears from the record that the appellant appeared in this action on March 19, 1960, and filed a notice of motion, supported by various affidavits and exhibits to change the venue of this action from Kershaw County to Horry County, under the provisions of Section 20-106(a) of the 1952 Code of Laws, upon the ground that at the time of the commencement of the action he was a resident of Horry County and not Kershaw County. The appellant duly filed an answer to the complaint, reserving all of his rights under his motion to change the venue.

The motion to change the venue was heard by the Resident Judge of the Fifth Circuit and was refused. The learned Circuit Judge refused the motion for a change of venue based upon his construction of Section 20-106 of the 1952 Code. This appeal followed. Even though the appellant has filed twelve exceptions to the order of the trial Judge and has minimized these to three questions, the only issue before this Court is whether the trial Judge committed error in refusing the motion of the appellant for a change of venue from Kershaw County to Horry County.

Venue in divorce cases is fixed by Section 20-106 of the 1952 Code, as follows:

'Actions for divorce from the bonds of matrimony shall be tried in the county (a) in which the defendant resides at the time of the commencement of the action, (b) in which the plaintiff resides if the defendant is a nonresident or after due diligence cannot be found or (c) in which the parties last resided together as husband and wife unless the plaintiff is a nonresident in which case it must be brought in the county in which the defendant resides.'

The foregoing section was construed by the Circuit Court in the case of Thomas v. Thomas, 218 S.C. 235, 62 S.E.2d 307, 308, as follows:

'From a study of acts passed by other States governing and regulating the granting of divorce, it appears that where no specific provisions are contained therein providing for methods of process in divorce actions, normal methods of process are used which, in this State, would mean that divorce actions must be begun by the service of a Summons and Complaint upon a resident defendant in the county in which the defendant resides. However, our Legislature has seen fit to modify the normal methods of process where divorce actions are concerned to the extent that they have provided three methods of process which may be used in this State in cases involving divorce. They are as follows: (1) In cases where the defendant is a resident of South Carolina the plaintiff may bring his or her action; (a) In the county in which the defendant resides at the time of the commencement of the action; or, (b) In the county in which the parties last resided together as husband and wife; (2) In the case of a non-resident defendant, or where the defendant cannot be found after due diligence, the action may be brought in the county where the plaintiff resides.'

This Court, in an Opinion by Justice Oxner, affirming what was said by Circuit Judge T. B. Greneker, above quoted, said:

'It is my view that the case should be affirmed upon the ground and for the reasons stated in the order of Judge Greneker. * * *'

'* * * There would have been no purpose in the insertion of Section 4 of the divorce statute, 46 St. at L., 216, (now Section 20-106 of the Code), unless the Legislature intended to make special provisions in actions for divorce. * * *'

It appears that the respondent and the appellant were married on September 1, 1957 and lived together as husband and wife until September 23, 1958. At the time of the separation, the appellant was a student at the University of Georgia, Athens, Georgia. The respondent left the appellant because of his abusive and ill treatment of her. She returned to the home of her mother in Kershaw County and has lived there since such separation. A child was born of the marriage after the separation. In Kershaw County the appellant was tried and convicted for failure to support his wife and child, in violation of Section 20-303 of the 1952 Code. We affirmed this conviction. State v. Collins, 235 S.C. 65, 110 S.E.2d 270. Certiorari to the United States Supreme Court was denied. 361 U.S. 895, 80 S.Ct. 199, 4 L.Ed.2d 152.

Prior to the indictment of the appellant in Kershaw County on a charge of non-support, the respondent had instituted an action for divorce and incidental relief in 'The Juvenile, Domestic Relations and Special Court of Kershaw County.' The appellant moved to change the venue of such action to Horry County. The judge of such court did, on September 22, 1958, dismiss said action without prejudice to the respondent 'to bring an action for divorce in Horry County or to file such other actions as she may be advised.' Thereafter, another action was begun by the respondent on December 23, 1958, seeking separate maintenance and support for herself and the minor child. This action was brought in the Kershaw County Court. The appellant objected to the jurisdiction and filed a motion for a charge of venue. This action terminated in a voluntary nonsuit being entered.

In November, 1959, the respondent instituted an action for divorce against the appellant in the Court of Common Pleas for Horry County. It appears that on November 26, 1959, the summons, complaint and notice in said action were delivered to one Enoch Smith, a deputy sheriff of Horry County, for service upon the appellant. It appears by affidavit of this officer, dated January 4, 1960, that he attempted to serve these papers upon Charles A. Collins personally 'but was unable to locate him within the bounds of Horry County despite due diligence on my part. I also made many inquiries and was unable to locate him anywhere within the bounds of the County. I attempted, likewise, to determine his whereabouts from his parents, but was not able to find out where he was.' This officer further avers that he attempted to serve the appellant by leaving a copy of the papers with his mother, Mrs. W. A. Collins, at her residence at Myrtle Beach, South Carolina, on December 12, 1959. He further states in his affidavit 'I still have been unable to locate Mr. Charles A. Collins personally and I do not believe that he is...