Ex parte Jeter

• Decision Date: 09 April 1940
• Docket Number: 15059.
• Citation: 8 S.E.2d 490,193 S.C. 278
• Parties: Ex parte JETER. JETER v. JETER.
• Court: South Carolina Supreme Court

8 S.E.2d 490

193 S.C. 278

Ex parte JETER.

JETER v. JETER.

No. 15059.

Supreme Court of South Carolina

April 9, 1940

Bryan & Mozingo, of Darlington, for appellant.

Hughes & White, of Union, for respondent.

E. C DENNIS, Acting Associate Justice.

The appellant, referred to hereinafter as Mr. Jeter, and the respondent, referred to hereinafter as Mrs. Jeter, were married in South Carolina in 1925. They had one child who is now a minor about thirteen years of age. They lived together as husband and wife until about April, 1936, at which time they separated. On November 15, 1937, Mr. and Mrs. Jeter entered into an agreement of separation whereby Mr. Jeter promised to pay to Mrs. Jeter the sum of eighty dollars per month in lieu of alimony and support for herself and the minor child. This agreement further provided, "That the party of the second part shall have and retain the custody possession and control of the said minor during the continuance of her minority." This agreement provided that the payments shall continue until the death of Mrs Jeter or until her re-marriage, and until the attainment of her majority by said minor child. This agreement between the parties provided, among other things, that Mr. Jeter should take out certain life insurance and pay all premiums thereon in which Mrs. Jeter was to be named beneficiary and the policy so drawn as to prohibit the insured from changing the beneficiary and from borrowing any funds thereon or creating any lien on the same. This agreement was signed by Mr. Jeter as party of the first part and Mrs. Jeter as party of the second part.

On or about the day that this contract was duly executed an action was commenced in the Court of Common Pleas for Union County by Mrs. Jeter against Mr. Jeter for the purpose of having said agreement approved and confirmed by the Court. On November 22, 1937, a decree was signed by Judge Sease in which it is set forth that the parties were living in a bona fide state of separation and executed a separation agreement. "The said written agreement is hereby confirmed and is adjudged to be fully binding and enforceable against each of the parties herein insofar as it applies to each of them respectively, and the same is hereby made a part of this decree and judgment, with the same force and effect as though it were incorporated verbatim herein." The concluding paragraph of this decree is as follows: "Further ordered and adjudged that this cause shall remain open until the termination of said agreement in accordance with its terms, and during said period either party to this action shall have the right to apply to this Court for such additional orders and decrees as may be necessary to enforce the performance by each party, of their respective obligations under the said agreement and under this decree."

The following is quoted from a subsequent decree of Judge Sease from which this appeal is taken:

"Thereafter and in May, 1938, contempt proceedings were started by Mrs Jeter against Mr. Jeter for failure to make the monthly payments in accordance with the said agreement and decree. A rule to show cause was issued, and upon hearing the return thereto the said John Randolph Jeter was adjudged to be in contempt of Court, and was ordered to pay over to Mrs. Jeter the amount of monthly payments which had accrued at the time.

"In May, 1939, Mrs. Jeter again commenced contempt proceedings against Mr. Jeter for failure to pay the monthly installments that had accrued under said agreement and decree subsequent to the prior contempt proceedings, and a rule to show cause in the last mentioned proceedings was duly issued by this Court. Before this last mentioned rule to show cause was returnable, the defendant, John Randolph Jeter, filed a petition praying for modification of the decree of this Court dated November 22, 1937, whereby the agreement fixing the amount of the monthly payments was confirmed. Upon this last mentioned petition a rule was issued by this Court requiring the said Helen Myrtle Tracy Jeter to show cause why the said agreement and decree should not be modified in accordance with the necessity of the case and why the matter should not be referred. In the last mentioned rule to show cause Mrs. Jeter was temporarily restrained from prosecuting the last mentioned contempt proceedings instituted by her. And the matter is now before this Court on the return to the rule to show cause why said agreement and decree should not be modified.

"In said return Mrs. Jeter raised the jurisdictional question that the Court now has no power or authority to alter or modify the decree whereby the aforesaid agreement was confirmed and made the judgment of the Court. For the reasons hereinafter set forth I agree with that contention, and therefore, I sustain her position.

"The question logically arises then, does this Court, in the absence of statutory authority and in the absence of a proper reservation in the decree, have power to modify its final decree issued November 22, 1937? I am of the opinion that this Court has no such authority among its inherent equitable powers. Apparently, this question has never been passed upon by the Supreme Court of this State, and in order that the point may be squarely presented to that Court in the event of an appeal, I hold that this Court has no power or jurisdiction at this late date to modify its final decree issued on November 22, 1938. That decree was passed in an action brought solely for the purpose of having the aforesaid agreement confirmed by this Court and of having said agreement made the judgment of this Court. The...