Harris v. Harris, 21927
Decision Date | 12 May 1983 |
Docket Number | No. 21927,21927 |
Citation | 279 S.C. 148,303 S.E.2d 97 |
Court | South Carolina Supreme Court |
Parties | Lee S. HARRIS, Respondent, v. William L. HARRIS, Appellant. |
Randall M. Chastain, Columbia, and Mary J. Wies-Kosinski, Aiken, for appellant.
C. LaVaun Fox, Aiken, for respondent.
This appeal is from denial of a motion to vacate a default divorce decree entered against appellant husband. We reverse and remand.
At the outset we reject appellant's jurisdictional argument. On July 28, 1979, he was served with a summons and petition which sought separate support and maintenance and an order directing the sale of the marital residence with a division of the proceeds. A temporary restraining order accompanied the pleading and prohibited interference by appellant with respondent. On appeal the husband contends that the Family Court lacked jurisdiction over him by reason of: (1) an alleged defect in the original summons; and (2) lack of any summons accompanying respondent's subsequent amended petition.
The summons of July 28, 1979, was countersigned by a Deputy Clerk of Court rather than by the Clerk of Court or Family Court Judge. Rule 6 of the Family Court Rules directs that "every summons shall be countersigned by the clerk or the judge." Appellant urges that the summons was thus fatally defective. In so doing he overlooks the language of Section 14-17-60, Code of Laws of South Carolina, 1976, which plainly states that the qualified "deputy may do and perform any and all of the duties appertaining to the office of his principal." There is no suggestion that the deputy clerk in this instance was not duly appointed and qualified. We find the validity of her act in countersigning the summons to be conclusively established by Section 14-17-60, Code, and the appellant's argument to be wholly without merit.
The summons of July 28, 1979, accomplished its recognized function in commencing this action, causing the Family Court to acquire jurisdiction over the person of the appellant and giving him notice of the action and opportunity to appear and defend. Section 15-9-10, Code. Raines v. Poston, 208 S.C. 349, 38 S.E.2d 145. Moreover the original petition amply apprised the appellant of the relief being sought. He chose neither to answer nor otherwise appear in response to the action.
On December 6, 1979, appellant was served with an "Amended Petition" apparently seeking a divorce on the ground of one year's separation. The actual prayer was not amended to demand a divorce. Instead, a paragraph was added to the body of the petition stating that since the parties had separated on September 7, 1978, the respondent was "entitled to a divorce ... on the ground of separation for a continuous period of more than one (1) year." Appellant argues that this revised pleading constituted a conversion of the action from one for separate support and maintenance to one for divorce. Relying upon Section 15-13-920, S.C.Code, he contends that such a revision was impermissible as an amendment. He asserts that it should have taken the form of a supplemental pleading under Section 15-13-100, S.C.Code, and that he was entitled to a separate summons for purposes of the new petition.
Appellant's initial premise was considered and rejected by this Court in Kirven v. Lawrence, 244 S.C. 572, 137 S.E.2d 764. There it was held that the language in Section 15-13-920(d), Code, prohibiting amendments which "change substantially the claim or defense," applies only to amendments proposed while the court is hearing the evidence, or after it has heard it. Prior to trial, we have authorized a liberal attitude toward amendments in order to "allow any party to shape his own pleadings to suit himself," and thus a trial court may "permit him at any time before trial to amend his pleadings so as to present his own views on the question to be litigated, upon such terms as may be deemed equitable ... even though their effect be to change entirely the whole cause of action, or the grounds of defense." Vernon v. Atlantic Coast Line R. Co., 218 S.C. 402, 63 S.E.2d 53.
Respondent's original petition for support and maintenance recited the fact that the parties had separated on September 7, 1978. We cannot therefore agree with the appellant who characterizes the subsequent amendment as a pleading which alleges "facts material to the case occurring after the former complaint" under Section 15-13-100, Code. We think it more correct to view the revised pleading as an amendment before trial in which the respondent has simply recast the issue to be decided.
No additional summons was required in this case to preserve the jurisdiction originally obtained by the service of process on July 28th. In any event, effective service of the December 6th pleading is not denied by appellant. He cannot contend that notice of the action and of the issues was lacking. Nor should he be heard to say that default judgment was improper, since he ignored the second pleading just as he had the first.
On January 7, 1980, the Family Court received testimony in this case, appellant...
To continue reading
Request your trial-
Wingard v. Wingard
...argument and unpersuaded by Wingard's. Lump-sum alimony is appropriate upon a finding of special circumstances. Harris v. Harris, 279 S.C. 148, 303 S.E.2d 97, 100 (1983); Millis v. Millis, 282 S.C. 610, 320 S.E.2d 66, 67 (Ct.App.1984). Here, the trial judge erred in awarding lump-sum alimon......
- Billups v. Leliuga, 1555
-
Hawley v. Hawley, 3957.
...amount of alimony.11 AFFIRMED. HEARN, C.J., and WILLIAMS, J., concur. 1. None of these holdings are involved in this appeal. 2. 279 S.C. 148, 303 S.E.2d 97 (1983). 3. Id. at 152, 303 S.E.2d at 100; see also 61A Am.Jur.2d Pleading § 152, at 146 (1999) ("The prayer for relief is not an irrele......
-
Cooper v. Cooper
...Court had no authority over the property of the parties is in accord with several South Carolina decisions, including Harris v. Harris, 279 S.C. 148, 303 S.E.2d 97 (1983). The order appealed from is vacated and the matter remanded to the District Court for an equitable distribution of the p......
-
Chapter Six Alimony
...to place the husband on notice that she was requesting alimony. The Court of Appeals specifically noted that, unlike Harris v. Harris, 279 S.C. 148, 303 S.E.2d 97 (1983), this case did not involve a default judgment. Rather, both sides actively participated in the litigation and had the opp......