Lawter v. Lawter

• Decision Date: 07 May 1986
• Docket Number: No. 22562,22562
• Citation: 289 S.C. 298,345 S.E.2d 479
• Court: South Carolina Supreme Court
• Parties: Arthur Paul LAWTER, Appellant, v. Margaret G. LAWTER, Respondent. . Heard

Page 479

345 S.E.2d 479

289 S.C. 298

Arthur Paul LAWTER, Appellant, v. Margaret G. LAWTER, Respondent.

No. 22562.

Supreme Court of South Carolina.

Heard May 7, 1986.

Decided June 9, 1986.

James R. Turner, Spartanburg, for appellant.

Gary W. Poliakoff, Spartanburg, for respondent.

HARWELL, Justice.

The family court awarded alimony to the respondent (wife) in the divorce decree. The appellant (husband) contends that this was error because the wife waived her right to alimony during the separate maintenance hearing. We agree and reverse that portion of the divorce decree which awards alimony to the wife.

On January 16, 1981, the family court entered a final order granting the wife's petition for a decree of separate maintenance. The order stated that the parties had reached an agreement regarding all matters raised by the pleadings. Even though the wife had requested alimony in her petition, no alimony was granted in the order nor was the right to future alimony reserved. The parties stipulated and the family court noted as a finding of fact that the wife waived her right to alimony at the separate maintenance hearing.

On October 3, 1984, the husband filed a petition for divorce on the ground of one year's separation. The wife answered and counterclaimed alleging the need for alimony. The wife's health had deteriorated since the entry of the separate maintenance order to the point that she had become totally disabled. The wife's income had drastically decreased while the husband's income had increased. The family court granted the husband's petition for divorce and awarded alimony to the wife.

In Taylor v. Taylor, 241 S.C. 462, 128 S.E.2d 910 (1962), the lower court denied the wife's request for alimony in the final decree. Nearly eight years later, the wife sought an award of alimony based on changed circumstances. We noted that, "where the divorce decree does not provide for alimony and there is no reservation of jurisdiction in the decree, such is final and absolute, and the wife cannot be allowed alimony in any subsequent proceeding." 241 S.C. at 466, 128 S.E.2d at 912. This rationale is also applicable when something less than a complete divorce is involved. See Lowe v. Lowe, 256 S.C. 243, 182 S.E.2d 75 (1971). Issues litigated and decided in a separate maintenance action may not be relitigated in a subsequent divorce proceeding. Clayton v. Clayton, 287 S.C. 308, 338 S.E.2d 326 (1985); Page v. Page, 260 S.C. 298, 195 S.E.2d 613 (1973); Powell v. Powell, 249 S.C. 663...