Grant v. Grant

• Decision Date: 30 October 1958
• Docket Number: No. 17469,17469
• Citation: 105 S.E.2d 523,233 S.C. 433
• Parties: Samuel Alexander GRANT, Respondent, v. Priscilla M. GRANT, Appellant.
• Court: South Carolina Supreme Court

Page 523

105 S.E.2d 523

233 S.C. 433

Samuel Alexander GRANT, Respondent, v. Priscilla M. GRANT, Appellant.

No. 17469.

Supreme Court of South Carolina.

Oct. 30, 1958.

Arthur W. Holler, Jr., Myrtle Beach, for appellant.

Long & Long, Myrtle Beach, for respondent.

OXNER, Justice.

This is an appeal from an order of the Civil Court of Horry County refusing motion by defendant to vacate a default judgment of divorce upon the ground that the default was occasioned by mistake and excusable neglect on the part of her attorneys. The motion was made under Section 10-1213 of the 1952 Code which permits the Court, in its discretion, at any time within one year after notice thereof, to 'relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.'

Plaintiff and defendant were married in the State of Connecticut on November 2, 1953. They later separated and on December 17, 1955, plaintiff, who was then in the Air Force, was transferred to Myrtle Beach, South Carolina. Defendant continued to reside in Connecticut. No children were born of this union. On December 30, 1956, plaintiff instituted this action for divorce upon the ground of desertion. The summons and complaint were personally served upon the defendant at her home in Hartford, Connecticut, on February 5, 1957. She promptly employed Hartford attorneys to represent her. On February 15, 1957, these attorneys wrote plaintiff's attorneys at Myrtle Beach, South Carolina, stating that they had been employed by defendant, were investigating the matter, and that they 'would appreciate it if you would be kind enough to delay moving for a default until we have had a full opportunity to determine our client's legal position.' On February 18th they also wrote to the Clerk of Court of Horry County enclosing a copy of the letter written to plaintiff's counsel and stating that to enable them to make a full investigation and determine the proper course to pursue, they 'would appreciate it if the Court, in its discretion, would grant us a reasonable delay in the matter.' Although both of these letters reached the addressees in due course, no reply was made. The Hartford attorney handling the matter states in his affidavit that under the circumstances, 'he assumed that the request for extension was satisfactory to the attorneys for the plaintiff and thereafter proceeded to investigate the matter.'

On March 19, 1957, an affidavit of default was filed by plaintiff's counsel and, without notice to defendant, the case was beard and testimony taken on March 20th. At the commencement of the hearing plaintiff's counsel called the Court's attention to the letter of February 15th received from the Hartford attorneys. The trial Judge states that he concluded 'that the letter was not a general appearance, but was only a request for a delay in moving for a default in the case' and that 'a sufficient delay had been granted.' He accordingly allowed the case to go to trial by default. A decree of divorce on the ground of desertion was thereafter signed on March 30th and filed in the office of the Clerk of Court on April 5, 1957.

On May 7, 1957, the Hartford attorneys wrote the attorneys for plaintiff that they were convinced from their investigation that their client had a valid defense and had turned the matter over to local counsel who would contact them shortly. This local attorney, in examining the court records, discovered on June 6, 1957 that a decree by default had already been obtained. However, nothing was done about the matter until the latter part of November, 1957 when defendant's counsel filed a petition and made a motion to vacate the default judgment upon the ground of excusable neglect. In the meantime, the plaintiff remarried on August 4, 1957 and is now living with his second wife. The motion to vacate was heard in due course on affidavits and refused on December 20, 1957.

In a number of jurisdictions statutes, authorizing relief from a judgment, order or other proceeding taken against a party through his mistake, inadvertence, surprise or excusable neglect have been applied to divorce decrees taken by default. Annotation 22 A.L.R.2d at page 1315; 17 Am.Jur., Divorce and Separation, Section 494. Our statute was so applied in Brock v. Brock, 225 S.C. 261, 81 S.E.2d 898.

In a controversy relating to marriage the Court is concerned not only with the rights of the individuals involved but also with the public interest. A duty rests upon the Court to encourage the parties to live together, to see that the marriage status is not disturbed except under circumstances and for causes fully sanctioned by law, and to prevent fraudulent and collusive divorces. Fogel v. McDonald, 159 S.C. 506, 157 S.E. 830; Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330, 15 A.L.R.2d 163. Accordingly, a judgment by default is not favored in divorce suits and will be set aside more readily than default judgments in other actions. 27 C.J.S. Divorce § 166, page 800. In Foxwell v. Foxwell, 122 Md. 263, 89 A. 494, 497, the Court said: 'In divorce proceedings, which are often not contested, and where collusion may exist between the parties, the public has a peculiar interest which * * * 'is in the care of the tribunal before which the proceedings are pending, and it will be astute in enforcing the policies and principles of the law, lest, by the suppression or perversion of important facts it may be made the medium of obtaining a decree to which neither of the parties is justly or legally entitled."

It is equally well settled that a party seeking to set aside a divorce decree may be barred by laches where he does not act diligently in seeking relief and innocent third parties have acquired rights by or through marriage in the meantime. 17 Am.Jur., Divorce and Separation, Section 519. While the remarriage of the spouse who obtained a divorce is not of itself a sufficient reason for denying relief to the other spouse in a proceeding to have the decree vacated, it is an important factor to be taken into consideration in determining whether or not relief should be granted. The weight to be given such factor depends upon the circumstances of the particular case. Swify v. Swift, 239 Iowa 62, 29 N.W.2d 535; Bussey v. Bussey, 95 N.H. 349, 64 A.2d 4, 12 A.L.R.2d 151; Shammas v. Shammas, 9 N.J. 321, 88 A.2d 204; Annotation 12 A.L.R.2d 153. In Swift v....