Harmon v. Harmon

• Citation: 257 S.C. 154,184 S.E.2d 553
• Decision Date: 04 November 1971
• Docket Number: No. 19311,19311
• Court: United States State Supreme Court of South Carolina
• Parties: Tibitha Woods HARMON, Appellant, v. James Bynum HARMON and Jean J. Harmon, Respondents.

Page 553

184 S.E.2d 553

257 S.C. 154

Tibitha Woods HARMON, Appellant, v. James Bynum HARMON and Jean J. Harmon, Respondents.

No. 19311.

Supreme Court of South Carolina.

Nov. 4, 1971.

C. Ben Bowen, of Abrams, Bowen & Townes, Greenville, for appellant.

Marvin R. Watson, of Watson & Ayers, and William K. Charles, of Charles & Charles, Greenwood, for respondents.

MOSS, Chief Justice:

This is an appeal by Tibitha Woods Harmon from an order of the Honorable George Bell Timmerman, Jr., presiding judge, refusing to grant her a voluntary nonsuit pursuant to Circuit Court Rule 45.

It appears from the record that James Bynum Harmon and Jean J. Harmon, the respondents herein, were married on March 25, 1949, and two children were born of this marriage, and they are now 21 and 15 years of age, respectively. It further appears that James Bynum Harmon did on February 24, 1970, obtain a purported divorce from his wife, Jean J. Harmon, under a decree issued by a Mexican Court and on the same day entered into a purported marriage contract with the appellant at Laredo, Texas.

Tibitha Woods Harmon, the appellant herein, on December 16, 1970, commenced this action against James Bynum Harmon for a divorce, A vinculo matrimonii, under the provisions of Section 20--101(1) of the Code, as amended, alleging that the husband was committing adultery with his former wife.

James Bynum Harmon's answer was a general denial, and further alleged that the divorce that he obtained from Jean J. Harmon was a nullity and the Mexican Court had no jurisdiction to grant the same. He further alleged that the appellant induced him to obtain the divorce and marry her with full knowledge that the divorce and subsequent marriage were void. He asked that the court declare the Mexican divorce and the Texas marriage to the appellant void.

Jean J. Harmon, the first wife, filed a petition and a motion with the lower court asking that she be made a party defendant in the said action. She alleges that she is the lawful wife of James Bynum Harmon and that she was not made a party of the Mexican divorce proceedings and did not submit herself to the jurisdiction of that court. She asserts that she has an interest in the matter in controversy. The judge of the lower court issued his order making her a party to the action.

Tibitha Woods Harmon appealed to this court from such order. The said appeal was filed and docketed in this court on April 12, 1971. We affirmed, holding that the trial judge properly exercised his discretion in making the first wife a party to the action. Ex parte Harmon, 256 S.C. 328, 182 S.E.2d 300.

The appellant, on February 24, 1971, served notice upon the respondents that she would move for a nonsuit in this action, pursuant to Circuit Court Rule 45. In an affidavit attached to such motion, she averred that she instituted this divorce action in December of 1970 and, subsequent thereto, on or about February 24, 1971, she and James Bynum Harmon reconciled their differences and were then living together as husband and wife in Greenville County, South Carolina.

After having heard the motion, the trial judge on March 18, 1971 issued his order denying the motion for a nonsuit under Circuit Court Rule 45 and holding that it was 'proper in this action that the status of these parties be judicially determined and that this Court pass on all the issues involved as I feel that it is equitable to do so. By previous Order of this Court, I have also allowed the Defendant, Jean J. Harmon, to enter a counterclaim.' This appeal followed from such order.

The single question for decision is whether the trial judge erred and abused his discretion in refusing to grant the motion of the appellant for a voluntary nonsuit, pursuant to Circuit Court Rule 45.

Circuit Rule 45 as to a voluntary nonsuit is as follows:

'(1) An action may be dismissed by the plaintiff without order of Court (i) by filing and serving a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

'(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this Rule, an action shall not be dismissed at the plaintiff's instance save upon order of the Court and upon such terms and conditions as the Court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the Court. Unless otherwise specified in the Order, a dismissal under this paragraph is without prejudice.'

The appellant in asserting error on the part of the trial judge in refusing her motion for a voluntary dismissal of her divorce action relies upon the case of Knopf v. Knopf, 247 S.C. 378, 147 S.E.2d 638. In the cited case an action was brought by the husband for a divorce on the ground of the wife's desertion. Before issue was joined, the husband served a motion for an order of dismissal. Pending the hearing of this motion, the wife filed an answer in which she denied the allegation of the complaint on which the husband sought a divorce and asked for custody of the two children of the marriage. The lower court refused the motion to dismiss the action and the husband appealed. We reversed and remanded the case for entry of an order of dismissal, saying:

'The rule in this State is that a plaintiff is entitled to a voluntary nonsuit without prejudice as a matter of right unless there is a showing of legal prejudice to the defendants. The trial Judge has no discretion with respect to the granting of such a motion unless and until legal prejudice is shown.'

In Case v. Case, 243 S.C. 447, 134 S.E.2d 394, we held that a plaintiff wife seeking a divorce could dismiss her action so long as there was no showing that some peculiar right of the defendant or the public demanded otherwise.

It is the position of the respondent, Jean J. Harmon, that the law governing the granting of voluntary nonsuits in this State has been changed by the adoption, on May 13, 1969, of Circuit Court Rule 45 and the presiding judge now has more discretionary powers concerning the right of a plaintiff to dismiss or discontinue an action. We agree that the new rule vests discretionary power in the presiding judge which he did not have prior to the adoption of the rule. The rule provides that if a defendant has pleaded a counterclaim prior to the service of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication.

When Jean J. Harmon, the respondent herein, filed her petition to intervene in said action she alleged, Inter alia, the following:

'(b) That the Petitioner is the lawful and legal wife of the Defendant, James Bynum Harmon, and that she has been unlawfully, maliciously and wilfully charged with adultery and that it is necessary that she be allowed to appear as party defendant to protect her good name in regard to this action.

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