McLeod v. Sandy Island Corp., 19584

• Decision Date: 08 March 1973
• Docket Number: No. 19584,19584
• Citation: 195 S.E.2d 178,260 S.C. 209
• Court: South Carolina Supreme Court
• Parties: , 12 UCC Rep.Serv. 531 Marlene B. McLEOD, Individually and as Guardian of Michele McLeod, Respondent, v. SANDY ISLAND CORPORATION et al., Appellants.

Page 178

195 S.E.2d 178

260 S.C. 209, 12 UCC Rep.Serv. 531

Marlene B. McLEOD, Individually and as Guardian of Michele

McLeod, Respondent, v. SANDY ISLAND CORPORATION et al., Appellants.

No. 19584.

Supreme Court of South Carolina.

March 8, 1973.

Ralph Hoffman and J. M. Long, Jr., Conway, and James P. Stevens, Loris, for appellants.

Burroughs, Green & Sasser, Conway, for respondent.

BUSSEY, Justice:

The plaintiff and the defendant Thomas M. McLeod were formerly husband and wife and residents of the State of Florida, but were divorced in that state by final judgment dated February 19, 1970. The defendant husband is currently a resident of Horry County, South Carolina, and in the present action the plaintiff wife seeks to establish the decree which she obtained in Florida as a South Carolina judgment; the transfer of certain property to the infant child of the parties and a judgment for alimony and child support accrued under the Florida decree, together with attorney's fees. Her complaint sought certain other relief, since abandoned. Contrary to the indication of the caption, she has elected to proceed only in her individual capacity.

All of defendants answered and two of them interposed counterclaims; there were various demurrers, motions, etc., and all of the proceedings resulted in plaintiff's motion for summary judgment being granted as follows. Judgment to the effect that (1) the final decree of divorce in Florida be adopted as the judgment and decree of the South Carolina court; (2) that ninety-four shares of stock owned by Thomas M. McLeod in Sandy Island Corporation be transferred on the books of the corporation to the plaintiff wife as 'custodian of Michele McLeod a minor under the Uniform Gifts to Minors Act'; (3) judgment against the said Thomas M. McLeod in the amount of $21,682.50, representing child support and alimony in arrears, with interest thereon, and together with $1,000.00 attorney's fees. All of the defendants appeal, the exceptions being sixteen in number and six questions being stated and argued. There is some overlap in the argument of the various exceptions and questions and we shall not, accordingly, attempt to discuss and decide them seriatim, but shall endeavor to leave no serious question undecided.

A number of exceptions and much of the argument of appellants are predicated upon the contention that the particular Florida divorce decree is not a final judgment and, accordingly, not entitled to full faith and credit under the United States Constitution. This contention has its genesis in the following provision of the Florida decree:

'That this Court does hereby reserve jurisdiction in the above entitled cause to make such orders as may from time to time become proper, upon application of the parties or either of them.'

It is argued by appellants, inter alia, that the particular decree here awarded lump sum and periodic alimony contrary to the laws of both Florida and South Carolina, and that since the Florida decree was 'modifiable', the South Carolina Court should revise the decree so that the same would comport with the laws of both states. They call attention to the case of Brewer v. Brewer, 242 S.C. 9, 129 S.E.2d 736, which cited in turn the Florida case of Harrison v. Harrison, Fla.App., 115 So.2d 709, for the proposition that under the Florida statute, as it then read, an award of both periodic and lump sum alimony was not then permissible. Overlooked by counsel is the fact that subsequent to the Harrison case the State of Florida, in 1963, amended its statute with respect to permanent alimony so as to specifically permit both 'periodic payments or payment in lump sum or both.' Florida Statutes, Sec. 65.08; Ch. 63--145, Laws of 1963. Aldrich v. Aldrich, Fla., 163 So.2d 276. The Florida decree provided for an apparently complete property settlement, alimony to the wife for a period of eighteen months at $1,000.00 per month, and support for the minor child at the rate of $500.00 per month. We doubt that such decree awarded both lump sum and periodic alimony, but if it be construed as doing so, such was clearly permissible under the law of Florida.

Further examination of the law of Florida, as interpreted by the court of last resort in that state, clearly shows that despite the reservation of jurisdiction clause contained in the decree, it was, nevertheless, a final decree and not subject to retroactive modification with respect to accrued or past due installment payments of alimony or any other vested property rights accrued under the decree. Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205. It appears that under the Florida statutes, as construed by the Supreme Court of Florida, alimony payments may be modified, Prospectively only, from the date of the application therefor, whether or not there is a reservation in the original decree of jurisdiction to do so. McArthur v. McArthur, Fla., 106 So.2d 73.

It is elementary, we think, that under the full faith and credit clause of the United States Constitution, we are required to give the Florida decree the same full force and effect that it has in that jurisdiction and appellants' contention that the particular decree is not a final judgment and not entitled to full faith and credit is without merit.

The appellant McLeod also argues that the judgment is not entitled to full faith and credit because of his assertion of acts of fraud allegedly perpetrated by his wife prior to the settlement of their affairs and entry of the decree. Suffice it to say that he has alleged no fact which would justify or sustain a collateral attack upon the Florida decree. It is of course true that a judgment may be impeached in a collateral proceeding on the ground of fraud where the fraud goes to the jurisdiction of the court, or to the method of acquiring jurisdiction or appears on the face of the record. 49 C.J.S. Judgments § 434, p. 859; Stone v. Mincey, 180 S.C. 317, 185 S.E. 619; Bailey v. Cooley, 153 S.C. 78, 150 S.E. 473; Coleman v. Daniel, 253 S.C. 363, 170 S.E.2d 665. But no facts are here alleged which would permit a collateral attack.

A re sume of the background facts is essential to an understanding of the other issues involved. The husband and wife were, prior to their separation and divorce, obviously people of some substance and jointly engaged in several different businesses. The record also indicates that they had some quite substantial liabilities but does not contain any indication of their net wealth. Prior to the divorce decree they entered into a lengthy and apparently quite comprehensive separation and settlement agreement and addendum thereto, dated January 15, 1970, wherein they apparently attempted to settle all their property affairs and rights as well as liabilities, all of which was confirmed and made a part of the final decree of divorce as if set forth therein, in haec verba. Relevant here is the following paragraph of the settlement agreement:

'18. Husband simultaneously herewith agrees to convey his stock and all physical property in Sandy Isles to their daughter, Michele, with the wife to hold the same as custodian under the Gifts to Minors Act. Wife agrees to assume all obligations remaining due on said stock. Husband simultaneously herewith also agrees to give said daughter that certain Promissory Note from his brother, together with any security for said note, having been given for certain Sandy Isle Stock. The delivery of said physical equipment to remain at Sandy Isle and it is an exception to the requirement of delivery to the Escrow Agent as provided in Paragraph 12 hereof.'

Apropos of the foregoing part of the agreement, the final decree contained the following language:

'20. That the plaintiff shall convey his stock in Sandy Island Corp., represented by Stock Certificate No. 6 for 94 shares of stock, and all physical property in Sandy Isles to the minor child of the parties, to-wit: Michele McLeod, with the plaintiff to hold the same as custodian under the Gifts to Minors Act. That the...