Knight v. Knight

• Decision Date: 23 July 1947
• Docket Number: 15973.
• Citation: 43 S.E.2d 610,211 S.C. 25
• Parties: KNIGHT v. KNIGHT.
• Court: South Carolina Supreme Court

43 S.E.2d 610

211 S.C. 25

KNIGHT v. KNIGHT.

No. 15973.

Supreme Court of South Carolina

July 23, 1947

Hemphill & Hemphill, of Chester, for appellant.

Gregory & Gregory, of Lancaster, for respondent.

OXNER Justice.

This is an appeal from an order allowing respondent, the wife of appellant, alimony pendente lite and suit money.

In 1915 appellant and respondent were married in Lancaster County South Carolina. They lived there until they separated in 1942 or 1943. Appellant then moved to the State of North Carolina where he has since resided. In December, 1944, respondent, a resident of Lancaster County, South Carolina, brought this action against her husband, a resident of North Carolina, for permanent alimony. She also asked for an award of emporary alimony and that her attorneys be allowed a reasonable fee for prosecuting the action. She alleged in her complaint that in December, 1943, appellant without cause deserted and abandoned her and one of their minor children and had since failed to adequately provide for their support and maintenance. She also filed a verified petition alleging that appellant had disposed of some of his property and was about to dispose of the remainder for the purpose of defeating her right to support and maintenance and asked that he be restrained during the pendency of the action from disposing of his property and be required to show cause why he should not pay alimony pendente lite and suit money. On December 15 1944, Judge Gaston, upon the verified complaint and petition issued an order requiring appellant to show cause before him on December 29, 1944, why he should not be required to pay alimony pendente lite and counsel fees and at the same time issued a temporary injunction restraining appellant from removing any of his property beyond the jurisdiction of the Court.

At the time of filing the summons, complaint and petition, respondent, upon the usual affidavit, applied for a warrant of attachment against the property of appellant. The warrant was duly issued by the Clerk of Court and on December 18th the sheriff attached all the real estate and personal property owned by appellant in Lancaster County. On December 20th appellant through his counsel appeared specially, reserving the right to object to the jurisdiction of the Court, for the purpose of filing a bond to secure the release of the property attached. On December 21, 1944, a $5,000 bond tendered by appellant was accepted and the property released.

The summons and complaint were served personally upon appellant at Charlotte, N. C., on December 28, 1944. On February 5, 1945, he gave notice of a motion to remove the case to the Federal Court. On February 8th appellant, reserving the jurisdictional objection, filed an answer alleging as a defense for leaving his home that his wife in 1942 committed adultery whereupon he notified her 'that she had forfeited all of her rights as' his wife and that she 'could no longer live with' him. Thereafter the case was removed to the Federal Court on motion of appellant. On October 17, 1946, the United States District Court, on motion of respondent, remanded the case to the Court of Common Pleas for Lancaster County.

On October 19, 1946, Judge Lewis, who was then presiding in the Sixth Circuit, upon the verified complaint and petition previously filed, issued an order requiring appellant to show cause before him on October 28th why he should not be required to pay temporary alimony and suit money. (Apparently there was never any hearing on a similar rule to show cause which had been issued by Judge Gaston). The order was forwarded to appellant's counsel who accepted service on October 22d. The hearing before Judge Lewis was had on October 30, 1946. Appellant's counsel first raised the question of jurisdiction, contending that the Court was without jurisdiction to entertain the motion for alimony pendente lite because appellant was a resident of North Carolina and had not been personally served with process within this State. The Court overruled the objection to the jurisdiction of the Court and then heard the question of alimony pendente lite on the merits. The only testimony offered at the hearing was the record of a North Carolina divorce proceeding instituted by appellant against his wife for the purpose of procuring a divorce on the ground of adultery. This record disclosed that the divorce proceeding was contested by respondent and the jury found in her favor on the issue of adultery. Thereupon the North Carolina Court decreed that appellant was not entitled to a divorce and dismissed the action.

On November 11, 1946, Judge Lewis issued an order requiring appellant, during the pendency of the action and until the further order of the Court, to pay to his wife alimony in the sum of $100 per month and to also pay a fee of $400 to respondent's counsel. This appeal followed.

We shall first discuss the jurisdictional question. Appellant argues that an order for alimony pendente lite is solely one in personam; that such an order is interlocutory in character and not a final and conclusive judgment enforceable by levy and execution; and that the only method of enforcing such an order is by civil contempt. It is contended that the Court having not acquired jurisdiction of the person of appellant, it was without jurisdiction to entertain the motion for temporary alimony and counsel fees. The Court below overruled the jurisdictional objection under the authority of Matheson et al. v. McCormac et al. (first appeal) 186 S.C. 93, 195 S.E. 122; (second appeal) 187 S.C. 260, 196 S.E. 883.

While substituted service on a nonresident by publication or actual service out of the state furnishes no legal basis for a judgment in personam, a state has power to provide that the property within the state of a nonresident defendant may be seized and applied to satisfy the defendant's marital obligation to support his wife, just as it may be seized and applied in satisfaction of any other obligation. Constructive service of process or personal service outside the state will give the court jurisdiction to render a decree for alimony or maintenance which is binding upon property belonging to such defendant which is within the jurisdiction of the court and which has been specifically proceeded against. Forrester v. Forrester, 155 Ga. 722, 118 S.E. 373, 29 A.L.R. 1363; Geary v. Geary, 272 N.Y. 390, 6 N.E.2d 67, 108 A.L.R. 1293; Artman et al. v. Artman, 111 Conn. 124, 149 A. 246; 17 Am.Juris. page 424; 27 Am.Juris. page 27. Numerous other cases supporting this well established principle are collected in annotations found in 29 A.L.R. 1381, 64 A.L.R. 1392, and 108 A.L.R. 1302. Such a proceeding is substantially one in rem or quasi in rem and it is, therefore, essential that the property proceeded against be brought within the custody and control of the court in some manner. This may be done by attachment, injunction, or other appropriate proceeding whereby the court is enabled to seize and take possession of the property of such nonresident. In holding that the property of a nonresident husband served only by publication may be seized to enforce the payment of alimony, the Court, in Pennington v. Fourth National Bank, 243 U.S. 269, 37 S.Ct. 282, 283, 61 L.Ed. 713, L.R.A.1917F 1159, said: 'The power of the state to proceed against the property of an absent defendant is the same whether the obligation sought to be enforced is an admitted indebtedness or a contested claim. It is the same whether the claim is liquidated or is unliquidated, like a claim for damages in contract or in tort. It is likewise immaterial that the claim is, at the commencement of the suit, inchoate, to be perfected only by time or the action of the court. The only essentials to the exercise of the state's power are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard. Where these essentials exist, a decree for alimony against an absent defendant will be valid under the same circumstances and to the same extent as if the judgment were on a debt,--that is, it will be valid not in personam, but as a charge to be satisfied out of the property seized.'

Accordingly, it was held in Matheson v. McCormac, supra, that in a suit by a wife for the support of herself and children against her husband who has absconded and disappeared, where the defendant was served by publication and his property within the State was attached in the proceeding, the Court was empowered to award alimony in a lump sum and appropriate the attached property in satisfaction of the amount of alimony awarded.

Appellant apparently concedes under the authority of the Matheson case that the property attached in this action could be applied in satisfaction of a decree against him for permanent alimony but contends that it could not be applied to the payment of an order for alimony pendente lite and counsel fees. There are decisions holding that an order for temporary alimony is interlocutory in character and as such does not constitute a judgment on which execution can be issued. 17 Am.Jur., page 445; 27 C.J.S., Divorce, § 265, page 1060. There are other decisions to the effect that payment of accrued installments may be enforced by execution. Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492; Paul v. Paul, ...