McLeod v. Sandy Island Corp.

• Decision Date: 04 June 1975
• Docket Number: No. 20027,20027
• Citation: 264 S.C. 463,215 S.E.2d 903
• Court: South Carolina Supreme Court
• Parties: Ex parte Marlene B. McLeod, Petitioner-Respondent. In re Marlene B. McLEOD, Individually and as guardian of Michele McLeod, Plaintiff-Respondent, v. SANDY ISLAND CORPORATION et al., and Thomas M. McLeod, also known as Thomas M.Stevens, Individually and as director of Sandy Island Corporation, of whomThomas M. McLeod, also known as Thomas M. Stevens, is Appellant.

Page 903

215 S.E.2d 903

264 S.C. 463

Ex parte Marlene B. McLeod, Petitioner-Respondent In re Marlene B. McLEOD, Individually and as guardian of Michele McLeod, Plaintiff-Respondent, v. SANDY ISLAND CORPORATION et al., and Thomas M. McLeod, also known as Thomas M.Stevens, Individually and as director of Sandy Island Corporation, of whomThomas M. McLeod, also known as Thomas M. Stevens, is Appellant.

No. 20027.

Supreme Court of South Carolina.

June 4, 1975.

Marchant, Bristow & Bates, Columbia, and James P. Stevens, Jr., Loris, for appellant.

Burroughs, Green & Sasser, Conway, for respondent.

PER CURIAM:

Involved in this proceeding is the liability of the appellant Thomas M. McLeod to pay alimony and child support. The action was originally commenced in December, 1970, and was previously before this Court on appeal in McLeod v. Sandy Island Corporation, 260 S.C. 209, 195 S.E.2d 178. In the initial proceeding the Florida divorce decree was reduced to a South Carolina judgment and the plaintiff awarded a judgment in the amount of $23,844, representing child support and alimony in arrears through March 22, 1971. It appears that no part of such judgment has been paid and the present proceeding was commenced by a rule requiring the appellant, McLeod, to appear and show cause why judgment should not be rendered against him for the arrearage of child support and alimony accruing between April 22, 1971 and March 22, 1974, together with attorneys' fees.

The appellant, McLeod, filed a return to the rule to show cause in which he attempted to set up, by way of defense, matters arising out of the separation and settlement agreement (property settlement) which was executed by the parties and incorporated as part and parcel of the Florida decree. The record reflects that in the original proceeding the appellant attempted to raise, either directly or indirectly, some of the same defenses. The plaintiff-respondent moved to strike such defenses on the ground that they were res judicata, they having been either raised in the original proceeding or such that they should have been raised. The appeal is from an order of the circuit court granting such motion and judgment in favor of the respondent-wife.

It is the appellant's contention that the present proceeding is upon a cause of action different from that litigated in the first proceeding and that under the principles of res judicata the first action was conclusive only as to those issues there actually litigated and determined. He relies upon Dunlap v. Travelers Insurance Company, 223 S.C. 150, 74 S.E.2d 828 and Surety Realty Corporation v. Asmer, 249 S.C. 114, 153 S.E.2d 125, for the proposition or contention that the present proceeding is upon a new and different cause of action. The cited cases are factually distinguishable and we are not at all convinced that the present proceeding is, in fact, upon a different cause of action so as to render conclusive only those issues actually litigated and determined in the prior proceeding. There is here identity of parties and of the subject matter in the two proceedings, the subject matter of both being the continuing, indivisible responsibility of the appellant to pay alimony and child support under the Florida decree in the absence of a change of condition which is not asserted.

But, even if it be conceded that the present proceeding involves a cause of action which is not precisely identical with the prior proceeding, the appellant still cannot prevail. We quote the following from 46 Am.Jur. (2d) 601, Judgments, section 431:

'There are many cases in which the doctrine of res judicata is held or declared to be applicable to defenses which...