Murdock v. Murdock, 18123

• Decision Date: 13 November 1963
• Docket Number: No. 18123,18123
• Citation: 133 S.E.2d 323,243 S.C. 218
• Court: South Carolina Supreme Court
• Parties: Madie J. MURDOCK, Respondent, v. William H. MURDOCK, Jr., Appellant.

Page 323

133 S.E.2d 323

243 S.C. 218

Madie J. MURDOCK, Respondent, v. William H. MURDOCK, Jr., Appellant.

No. 18123.

Supreme Court of South Carolina.

Nov. 13, 1963.

Rogers & McDonald, Columbia, for appellant.

Hayes, Hayes & Brunson, Rock Hill, for respondent.

BRAILSFORD, Justice.

Pending this action for divorce and alimony, brought by Mrs. Murdock against her husband in York County, the husband commenced an action for divorce in the State of Kentucky on constructive service. He also defended and counter-claimed for divorce in this action, which was tried before a special referee. The referee filed his report on July 8, 1957, finding that neither party had established a ground of divorce against the other, but recommending that the wife be allowed to live separate and apart from the husband and that she be awarded lump sum alimony of $4250.00. After the filing of the report and before argument of the husband's exceptions thereto, he obtained an absolute decree of divorce by default in the Kentucky action, and, on his motion, this action was 'reopened and remanded' to the special referee. An amendment of the husband's answer by setting up the Kentucky decree was allowed and additional evidence was received.

By a second report, the referee found that the Kentucky decree effected a dissolution of the marriage between the parties, but that it did not bar the wife's claim to alimony in this action. The referee adhered to his recommendation that she be awarded lump sum alimony of $4250.00.

The circuit court concurred in the findings and conclusions of the referee, and, except in respects not now material, adopted the report. The only exceptions on this appeal relate to the award of alimony. We adopt appellant's statement of the questions involved, omitting one question which becomes moot, as follows:

1. 'Did the lower court err by failing to give full faith and credit to the Kentucky decree which awarded no alimony to the Respondent?

2. 'Did the lower court err in awarding alimony in view of the Respondent's financial condition?

3. 'Did the lower court err in awarding alimony in a lump sum rather than in the usual way of periodic payments?'

The only error suggested by the first question, or raised by the exception on which it rests, is the failure of the circuit court to recognize that it was bound by Art. IV, Sec. 1, of the United States Constitution, to give full faith and credit to the Kentucky decree as a bar to the wife's claim for alimony. It must be resolved against appellant unless the court was so bound.

The parties were married in South Carolina in 1936. Except for several short absences by the husband, they lived together in this State until March or April of 1955, when, according to the findings below, the husband deserted his wife and children and moved to the State of Kentucky. The wife has continuously resided in South Carolina. She was not served with process in Kentucky and did not submit to the jurisdiction of the court.

Under these facts, the decision of the Supreme Court of the United States in Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456, is conclusive authority that the Constitution of the United States did not require the court to give full faith and credit to the Kentucky decree as a bar to the wife's claim to alimony. In that case, after the husband and wife had separated in California and Mrs. Vanderbilt had established a residence in New York, the husband obtained a decree of divorce in the State of Nevada on constructive service, she not having submitted to the jurisdiction of the court. Some months after the Nevada decree was filed, Mrs. Vanderbilt brought an action in New York for separation from her husband and alimony to be realized out of his property within the State. The New York court held that the Nevada decree effected a valid dissolution of the marriage, but overruled the husband's plea that the Full Faith and Credit Clause of the United States Constitution compelled New York to recognize it as a bar to alimony. The Supreme Court of the United States affirmed, stating:

'Since the wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of New York to financial support from her husband. It had long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. Here, the Nevada divorce court was as powerless to cut off the wife's support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court's jurisdiction. Therefore, the Nevada decree, to the extent it purported to affect the wife's right to support, was void and the Full Faith and Credit Clause did not obligate New York to give it recognition.

'Petitioner claims that this case is governed by Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347. For the reasons given in a concurring opinion in Armstrong v. Armstrong, 350...