Connell v. Connell
| Decision Date | 01 March 1967 |
| Docket Number | No. 18612,18612 |
| Parties | Jacquelyne Cook CONNELL, Respondent, v. A. J. CONNELL, Appellant. |
| Court | South Carolina Supreme Court |
W. C. Calhoun, Augusta, Ga., John H. Williams, of Williams & Johnson, Aiken, for appellant.
Albert G. Ingram, Augusta, Ga., Solomon Blatt, Jr., of Blatt & Fales, Barnwell, for respondent.
Jacquelyne Cook Connell, the respondent herein, and A. J. Connell, the appellant herein, were married on October 23, 1953. Three children were born of this marriage. The aforesaid marriage was terminated by a consent divorce decree on November 13, 1963, by the Superior Court of Richmond County, Georgia. The decree awarded custody of the children to the respondent, fixed the visitation rights of the appellant, and fixed the sum to be paid for alimony and support.
At the time of the commencement of the instant action, the respondent was a resident of Aiken County, South Carolina. The appellant was a resident of Richmond County, Georgia. The present action was one brought by the respondent to have the aforesaid decree modified by changing the visitation rights of the appellant, and by increasing the amount awarded for the support of said wife and children. It is alleged that such modification of the original decree should be made because of a change of circumstances affecting the interest and welfare of the wife and children. The aforesaid action was commenced by the service of a summons and petition upon the appellant in Aiken County, South Carolina. Service of the summons and petition was attested by a sheriff's certificate of service.
The appellant filed an 'Answer and Return' wherein it is stated that he 'makes a special appearance for the purpose of making an Answer and Return, objecting to the jurisdiction of this Court in this matter, and without waiving the same.' The appellant alleged in his answer and return that the service of the summons and petition upon him in Aiken County, South Carolina, was by way of trick, he having been enticed by the respondent to come to Aiken County, where an attempted service was made by a deputy sheriff. In connection with the service of the summons and petition, the appellant further alleged that while he was in Aiken County, South Carolina, he was acting under the terms and conditions of the above mentioned divorce decree, 'and was, therefore, not liable for service of process under those conditions in the same matter.'
The 'Answer and Return' of the appellant pleads the 'Final Judgment and Decree of Total Divorce' by the Superior Court of Richmond County, dated November 13, 1963. The appellant alleges that the parties to the action in which that decree was rendered were the same as the parties in the present action. He further alleges that the Georgia decree, among other things, determined custody and visitation rights, alimony and support; that all parties to the action were properly before the Georgia Court and it had jurisdiction of the parties and the children. He further alleges that after the Georgia decree was rendered he 'has lived up to the terms and conditions thereof' but the respondent 'has not lived up to the conditions of the decree of the Superior Court of Richmond County, but has violated the same, and there is now pending in the Court for Richmond County a contempt action and other relief * * * bearing upon the custody and support of the children with which our present action is concerned.'
It is also asserted that the decree of the Georgia Court is entitled to full faith and credit here under the United States Constitution and the decision there is Res judicata of the issues raised by the petition of the respondent here and the Court of Common Pleas for Aiken County has no jurisdiction of the matter. The appellant further alleges that the matters set forth in the petition of the respondent could be pleaded and determined in an action now pending in the Georgia Court. The appellant 'affirmatively alleges' that to modify the existing Georgia decree in the present action, under an alleged change of condition, 'would create a conflict of laws that could result in an order of the South Carolina Court, and an order of the Georgia Court, being directly in conflict each with the other, and causing each party to be in contempt of a court.' The 'Answer and Return' includes a statement that the appellant does not waive the right, subject to his appearance to answer, demur or otherwise plead to the merits and makes a part of this pleading all of the original papers, including the Georgia decree. The prayer of the 'Answer and Return' of the appellant is 'that the petition be dismissed and for such other relief' to which the appellant is entitled in law and equity.
The appellant moved to dismiss the action brought against him and asserted that the 'Answer and Return' filed by him was a special appearance for the sole purpose of objecting to the jurisdiction of the court. The motion came on to be...
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