Lukich v. Lukich

• Decision Date: 30 January 2006
• Docket Number: No. 4080.,4080.
• Citation: 627 S.E.2d 754
• Court: South Carolina Court of Appeals
• Parties: Phyllis J. LUKICH, Appellant, v. George Peter LUKICH, Respondent.

627 S.E.2d 754

Phyllis J. LUKICH, Appellant, v. George Peter LUKICH, Respondent.

No. 4080.

Court of Appeals of South Carolina.

Heard November 8, 2005.

Decided January 30, 2006.

Rehearing Denied March 28, 2006.

Margaret D. Fabri, of Charleston, for Appellant.

Peter D. DeLuca, Jr., of Goose Creek, for Respondent.

SHORT, J.:

Phyllis J. Lukich (Wife) appeals the family court's order barring her from using her decree of annulment of a prior marriage as a defense against George P. Lukich's (Husband) complaint to void their marriage as bigamous. Wife also contends the family court erred by holding Husband "technically in contempt" but ruling Husband did not have to comply with the temporary order pending the outcome of his motion to vacate that order. We affirm.

FACTS

In March 1985, Husband and Wife participated in a marriage ceremony and lived together as a married couple for eighteen years. In 1999, the parties began to experience difficulties after Wife suffered a debilitating stroke. Thereafter, on August 21, 2002, Wife filed a complaint in Berkeley County for separate support and maintenance, alleging physical cruelty and adultery and seeking spousal support, equitable distribution, and attorneys' fees. After a temporary hearing, Judge Jack Landis issued a temporary order awarding Wife $1350 per month in alimony, $3500 in temporary attorneys' fees, and restraining both parties from encumbering or disposing of marital property.

During the course of discovery, Husband began to suspect Wife never obtained a divorce from Charles Havron, whom she married in 1973. Therefore, Husband made a discovery request that Wife produce a copy of the divorce decree from Havron. Although the South Carolina Department of Health and Environmental Control produced a marriage certificate for Wife and Havron, Wife could not produce a divorce decree for her marriage to Havron. On September 25, 2003 Husband filed a complaint in Berkeley County seeking to void his marriage to Wife on the ground of bigamy, and a hearing was set for November 6, 2003.

On October 21, 2003, Wife filed a complaint in Charleston County to have her marriage to Havron annulled. An uncontested hearing was held on October 31, 2003 before Judge Frances Segars-Andrews. At the hearing Wife produced evidence that she and Havron were married during a night of heavy drinking, had never lived together as husband and wife, and shortly after the marriage Havron moved to Illinois. Havron submitted an affidavit corroborating Wife's testimony and did not contest the annulment. Judge Segars-Andrews granted Wife an annulment from Havron, declaring the marriage void ab initio.

After Wife faxed a copy of the order of annulment to Husband, Husband made a motion to intervene in Wife's annulment proceeding. Husband argued he had standing due to the effect the annulment would have on his pending action against Wife to void their marriage on the ground of bigamy. Judge Segars-Andrews denied Husband's motion to intervene, finding he did not have standing because he was not a party to the marriage.

On November 5, 2003, Wife filed a motion to dismiss Husband's complaint to void the marriage. Wife asserted that because her marriage to Havron had been annulled, Husband could no longer prove their marriage was bigamous, and, alternatively, Husband's complaint was procedurally defective. Judge Wayne Creech granted the motion to dismiss on the ground that Husband filed his complaint under the same case number as Wife's complaint for separate support and maintenance. However, Judge Creech ruled Wife was barred from using her order of annulment from Havron as a defense to Husband's action to void their marriage as bigamous. Wife appeals the ruling.

On January 14, 2004 Wife filed a rule to show cause, alleging Husband had failed to pay temporary support and was in violation of the temporary order. Judge Creech ruled that Husband was "technically" in contempt for failure to make support payments. However, Judge Creech (hereafter "the family court") ordered Husband "should not be sanctioned or required to make payment under the Temporary Order until his Motion to vacate the alimony award is heard and determined by the Court." Wife's motion to alter or amend the order was denied. Wife appeals.¹

LAW/ANALYSIS

I. ANNULMENT DECREE

Wife argues the family court erred by barring her from using the order of annulment from Havron as a defense to Husband's action to void their marriage as bigamous. Wife contends the annulment decree rendered her marriage to Havron void ab initio, which creates the legal fiction that the marriage never existed. Wife asserts that because her marriage to Havron was rendered a non-occurrence in the eyes of the law, her marriage to Husband is not bigamous even though she was, in reality, married to Havron at the time she and Husband participated in the marriage ceremony. We disagree.

Section 20-1-80 of the South Carolina Code Annotated sets forth the principle that "[a]ll marriages contracted while either of the parties has a former wife or husband living shall be void." This statute codifies the overriding public policy of this state against bigamy. Johns v. Johns, 309 S.C. 199, 203, 420 S.E.2d 856, 859 (Ct.App.1992) (holding the public policy of not recognizing bigamous marriages overrides the public policy supporting the finality of judgments). A person who is married cannot enter into a valid marriage by participating in a marriage ceremony with a new person. Day v. Day, 216 S.C. 334, 338, 58 S.E.2d 83, 85 (1950) ("A mere marriage ceremony between a man and a woman, where one of them has a living wife or husband, is not a marriage at all. Such a marriage is absolutely void, and not merely voidable.").

Therefore, we are left to consider the question of whether an annulment which decrees a pre-existing marriage void ab initio can be used as a defense to an action to void a marriage as bigamous because the annulment relates back so as to give validity to a prior bigamous marriage. Although our courts have not specifically addressed this issue, we have generally held that because a bigamous marriage is void at its inception and not merely voidable, it cannot be ratified or confirmed and thereby made valid. Johns, 309 S.C. at 201, 420 S.E.2d at 858; see also Callen v. Callen, 365 S.C. 618, 623, 620 S.E.2d 59, 62 (2005) (holding when there is an impediment to marriage, such as one party's existing marriage to a third person, no common-law marriage may be formed and the relationship is not automatically transformed into a common-law marriage once the impediment is removed); Prevatte v. Prevatte, 297 S.C. 345, 349, 377 S.E.2d 114, 117 (Ct.App.1989) (holding a relationship illicit at its inception does not ripen into a common-law marriage once the impediment to marriage is removed and the parties must agree to enter into a common-law marriage after the impediment is removed) (quoting Yarbrough v. Yarbrough, 280 S.C. 546, 551, 314 S.E.2d 16, 19 (Ct.App.1984)); Kirby v. Kirby, 270 S.C. 137, 140, 241 S.E.2d 415, 416 (1978) (same).

Wife argues Joye v. Yon, 355 S.C. 452, 586 S.E.2d 131 (2003), supports her position in the case at bar. In Joye, the parties divorced and Husband was ordered to pay Wife periodic alimony. Id. at 454, 586 S.E.2d at 132. Thereafter, Wife entered into a new marriage with Vance, so Husband stopped making alimony payments to Wife. Id. However, two months into the marriage, Wife discovered that Vance had never divorced his former spouse, so she had the marriage annulled. Id. Wife then brought a contempt action against Husband for failure to make alimony payments, arguing that because her subsequent marriage was void ab initio, Husband's obligation to make alimony payments never terminated. Id. The supreme court considered the novel issue of whether an annulment of a remarriage reinstates a previous spouse's periodic alimony obligation. Id. at 454, 586 S.E.2d at 133.

After discussing several approaches taken by other jurisdictions, our supreme court held the family court should apply the principles of equity and utilize a case by case approach to determine whether the payor spouse's periodic alimony obligation is revived after the payee spouse's subsequent marriage is annulled. Id. at 456, 586 S.E.2d at 134. The court also held that regardless of whether the family court determined to reinstate periodic alimony or not, Husband had no obligation to pay retroactive alimony to Wife for the time period that Wife was married to her bigamous Husband. Id. at 457, 586 S.E.2d at 134.

The Joye case, though not directly applicable to the facts in the instant case, leaves open the possibility that an annulment may operate to revive a previous spouse's alimony obligation. However, the supreme court did not hold the annulment created the presumption that the Husband's alimony obligation never terminated. Id. at 456, 586 S.E.2d at 134. Instead, the supreme court explicitly stated that Husband had no obligation to pay alimony for the time period Wife thought she was married to Vance, even though the marriage was void ab initio. Id. at 457, 586 S.E.2d 131, 585 S.E.2d at 134. Therefore, Joye does not support Wife's position and is not controlling.

As this case involves a novel issue of law in South Carolina, "we look to other jurisdictions for edification, enlightenment, and guidance." State v. Mitchell, 362 S.C. 289, 299-300, 608 S.E.2d 140, 145 (Ct.App.2005). In Scarboro v. Morgan, 233 N.C. 449, 64 S.E.2d 422 (N.C.1951), the North Carolina Supreme Court addressed the issue in a factually similar case. In Scarboro, Wife entered into a marriage with Husband while the Wife was lawfully married to another man. 233 N.C. at 451, 64 S.E.2d at 423. After Husband died, his heirs brought suit to declare his marriage to Wife void as bigamous. Id. at 450, 64 S.E.2d at 422. Wife argued her motion for nonsuit should have been granted for failure to make out a case of...