Louthian & Merritt, P. A. v. Davis
| Decision Date | 30 January 1979 |
| Docket Number | No. 20866,20866 |
| Citation | 251 S.E.2d 757,272 S.C. 330 |
| Court | South Carolina Supreme Court |
| Parties | LOUTHIAN & MERRITT, P. A., Attorneys for Deceased Petitioner, Appellants, v. Daniel W. DAVIS, Jr., Respondent. Nancy W. DAVIS, Appellant, v. Daniel W. DAVIS, Jr., Respondent. |
Herbert W. Louthian, of Louthian & Merritt, Columbia, for appellants.
Joe E. Berry, Jr., of Berry, Dunbar, Gibbes & Woods, Columbia, for respondent.
The law firm of Louthian & Merritt, P. A., appeals from the order of the lower court denying its request for attorneys' fees in connection with prosecution of Nancy W. Davis' action for divorce against respondent Daniel W. Davis, Jr. The lower court held that Mrs. Davis' death prior to the entry of a judgment in the divorce action abated the entire divorce action and deprived the court of subject matter jurisdiction to award attorneys' fees. We affirm.
Mr. and Mrs. Davis were married on May 3, 1952. Each of their two children has reached the age of majority. In June 1974, Mrs. Davis initiated this action for divorce against Mr. Davis and sought temporary alimony, attorneys' fees, court costs and certain other relief. Mrs. Davis was awarded temporary alimony and attorneys' fees Pendente lite, and the case was referred to the Standing Master for Richland County for a hearing on the merits. This hearing was conducted on April 5 and 6, 1976. Shortly thereafter, and before the Master had filed his report, Mrs. Davis died.
On April 19, 1977 the Master conducted a hearing to determine if the appellant was entitled to an award of attorneys' fees for the prosecution of Mrs. Davis' case. The respondent objected to the hearing and argued that Mrs. Davis' death abated appellant's claim for attorneys' fees. In his report dated July 27, 1977 the Master found that the respondent Mr. Davis should be required to pay eleven thousand ($11,000.00) dollars to appellant as attorneys' fees, plus the costs of the April 19, 1977 reference.
The matter then came before the Richland County Court on respondent's exceptions to the Master's report of July 27, 1977. The lower court found that Mrs. Davis' death abated appellant's claim for attorneys' fees, and that the Master's report dated July 27, 1977 was null and void due to a lack of subject matter jurisdiction. This appeal by appellant followed.
It is held by the overwhelming weight of authority that an action for divorce, being purely personal, terminates on the death of either spouse, and where the action for divorce is commenced, and one of the parties dies thereafter but before the entry of a final decree, the action abates and the jurisdiction of the court to proceed with the action is terminated. See cases collected and reported in: 27A C.J.S. Divorce § 100; 24 Am.Jur.2d Divorce and Separation § 182; 104 A.L.R. 654; 158 A.L.R. 1205; and West's Decennial Digests, Divorce, k 83. We recognized this rule in Stone v. Guaranty Bank & Trust Co., 270 S.C. 331, 242 S.E.2d 404 (1978).
Applying this rule to the case at hand, Mrs. Davis' action for divorce abated with her death prior to the entry of a final decree, and the jurisdiction of the lower court to proceed with the action terminated.
The appellant bases its claim for attorneys' fees on Section 20-3-120, 1976 Code of Laws of South Carolina, which provides:
In every action for divorce from the bonds of matrimony, the wife, whether she be plaintiff or defendant, may in her complaint or answer or 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. If such claim shall appear well founded the court shall allow a reasonable sum therefor.
Section 20-3-120 authorizes an award to the wife of an allowance for attorneys' fees "in every action for divorce." Section 20-3-120 only applies to actions for divorce, and in the absence of an action for divorce the lower court has no authority under Section 20-3-120 to make an award of attorneys' fees to the wife.
After Mrs. Davis' death there ceased to be an action for divorce pending in the lower court incidental to which the lower court could make an award of attorneys' fees to Mrs. Davis under Section 20-3-120.
Furthermore, under the plain terms of Section 20-3-120, if an award of attorneys' fees is made in an action for divorce, the award must be made to The wife. Section 20-3-120 does not authorize the lower court, in an action for divorce, to make the allowance directly to the wife's attorney. The wife's attorney is not a party to the divorce action and he can neither seek nor be awarded attorneys' fees from the husband. If a claim is made against the husband under Section 20-3-120 for attorneys' fees that claim can only be prosecuted by the wife. The wife's attorney has no claim against the husband under Section 20-3-120.
The wife's claim for attorneys' fees under Section 20-3-120, being incidental to the divorce action, is purely personal, and is abated with the divorce action if either party dies before the entry of a final decree. This conclusion is mandated by the wording of Section 20-3-120, and is supported by similar holdings in other jurisdictions. See e. g.: Hogsett v. Hogsett, 409 S.W.2d 232 (Mo.App.1966); Rosenhouse v. Ever, 150 So.2d 732 (Fla.A...
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