Jeffords v. Jeffords

• Decision Date: 04 April 1950
• Docket Number: 16334.
• Citation: 58 S.E.2d 731,216 S.C. 451
• Parties: JEFFORDS v. JEFFORDS.
• Court: South Carolina Supreme Court

58 S.E.2d 731

216 S.C. 451

JEFFORDS v. JEFFORDS.

No. 16334.

Supreme Court of South Carolina.

April 4, 1950

George W. Keels, Florence, for appellant.

S. S Tison, Jr., Hartsville, for respondent.

STUKES, Justice.

The complaint in this action by husband against wife is in proper form for divorce on the ground of desertion. It appears from the agreed statement in the transcript for appeal that a former action by the wife against the husband for separate support and maintenance was concluded by order dated May 12, 1949 which held that the wife had deserted her husband without just cause or excuse after about two years of marriage; and appeal from that judgment was dismissed on July 16, 1949. The present action was commenced on the ensuing August 9th.

The answer originally included effort by the defendant to reopen the prior judgment but that was abandoned by motion of the defendant to amend by striking and inserting in lieu the following: 'That on information and belief the conduct of the plaintiff with a woman or women other than his lawful wife has been such that would deprive him of a divorce on his own volition.'

The motion to so amend was granted and this appeal therefrom was taken upon exceptions which challenge the sufficiency of the quoted allegations to constitute a defense.

There is another branch of the appeal, which will be first decided. Upon filing of the verified answer, defendant obtained from the court a rule against the plaintiff to show cause why he should not be required to pay to the defendant a reasonable amount for attorney's fees. By way of return plaintiff set up the judgment in the former action between the parties and that he had been required to pay the fee of the attorney for the defendant in that action in which all issues now attempted to be presented were decided, or should have been decided, against the present defendant, who was plaintiff in the former action.

The court held without discussion that the defendant was entitled to an award for counsel fees and fixed $200 as a reasonable amount which plaintiff was ordered to forthwith pay to the attorney for the defendant. Appeal is prosecuted from the order.

Section 8 of Act No. 137 of 1949, entitled 'An Act To Provide And Regulate The Granting Of Divorces,' etc., 46 Stat. pages 216, 217 is as follows: 'In every action for divorce from the bonds of matrimony, the wife, whether she be plaintiff or defendant, may in her complaint or answer by petition pray for the allowance to her of alimony and suit money, and for the allowance of such alimony and suit money pendente lite; and, if such claim shall appear well founded, the court shall sllow a reasonable sum therefor.'

Sec. 1 of the Act provides that divorce actions shall be cognizable only in equity. The quoted sec. 8 appears to be merely an enactment of the rule which had already crystallized in our former decisions with respect to suits for alimony. While the allowance of such pendente lite and the allowance of suit money or attorney's fees is within the discretion of the court, the power should not be exercised unless the wife establishes a prima facie right thereto. S. C. cases collected in 18 S.E. Dig. & Supp., Husband & Wife, k295. Here the existence of the former judgment appears to be prima facie contra. There are no children of the marriage and it is inferable from the allegations of her answer that the wife is gainfully employed. Armstrong v. Armstrong, 185 S.C. 518, 194 S.E. 640.

The order allowing an attorney's fee pendente lite against plaintiff is reversed. However, this will not preclude the defendant from renewing her application for suit money if the affirmative defense hereinafter discussed be properly alleged and prima facie showing is made that it is well founded. 17 Am.Jur. 452, sec. 570. 27 C.J.S., Divorce, pp. 912, 913, § 217; pp. 922, 923, § 222.

Reverting to the feature of the appeal first mentioned, in view of the former judgment it must be presumed that the amendment to the answer, quoted supra, has reference to the conduct of plaintiff since the separation, which latter the court held resulted from defenda...