Nocher v. Nocher, 20423

• Decision Date: 11 May 1977
• Docket Number: No. 20423,20423
• Citation: 234 S.E.2d 884,268 S.C. 503
• Court: South Carolina Supreme Court
• Parties: Donna V. NOCHER, Respondent, v. Larry NOCHER, Appellant.

Page 884

234 S.E.2d 884

268 S.C. 503

Donna V. NOCHER, Respondent, v. Larry NOCHER, Appellant.

No. 20423.

Supreme Court of South Carolina.

May 11, 1977.

George W. Jefferson, Columbia, for appellant.

Victoria L. Eslinger, Eslinger & Knowles, Columbia, for respondent.

LEWIS, Chief Justice:

Plaintiff-respondent, a resident and domiciliary of the State of South Carolina, instituted this action against her husband, the defendant-appellant, a resident and domiciliary of the State of Virginia, for a divorce, a mensa et thoro on the ground of desertion, alimony, custody of the parties' two minor children who are within the State of South Carolina, support for the children, and counsel fees. Personal service of the summons and complaint was not made upon appellant within this State, but he was personally served in the State of Virginia. He subsequently made a special appearance, pursuant to Section 10-648 of the South Carolina Code of Laws, for the sole purpose of challenging the jurisdiction of the lower court to grant the relief sought by respondent, since there had been no personal service of process upon him within the State so as to give the court the necessary jurisdiction of his person.

The lower court, in effect, sustained the plea of appellant to the jurisdiction of the court, except as to the issues of divorce and child custody, and granted to respondent a divorce a mensa et thoro, on the ground of desertion, and custody of the minor children, holding that in personam jurisdiction was unnecessary as to these latter issues.

In addition to his challenge to the jurisdiction of the lower court of his person, in which he was protected by his special appearance under Code Section 10-648, supra, appellant raises the question in this appeal that there is no cause of action in this State for a divorce, a mensa et thoro, on the ground of desertion and, if such an action exists, the showing was insufficient to sustain it. Although not raised in the lower court, the effect of appellant's present position is the same as a demurrer to the complaint or a motion to dismiss on the ground that no cause of action for divorce is alleged or proved.

The well settled principle was recognized and applied in South Carolina State Highway Department v. Isthmian Steamship Company, 210 S.C. 408, 43 S.E.2d 132, that "when a defendant becomes the actor in an event which contemplates, in effect impliedly acknowledges, the jurisdiction of the court before disposition of a prior special appearance to test the jurisdiction of his person, he waives the objection raised in the special appearance and becomes subject to the jurisdiction of the court." Also, Connell v. Connell, 249 S.C. 162, 153 S.E.2d 396.

Although the question is not properly before the Court on appeal, because not raised in the lower court, appellant's attempt to interpose an objection to the sufficiency of the pleadings and the existence of a cause of action constituted a general appearance and a waiver of his right to question the jurisdiction of his person by the South Carolina Court in this matter. Appellant's challenge to the sufficiency of the cause of action constituted a plea to the merits and an acknowledgment of the jurisdiction of the court, because the court would have no power to dispose of the issue without jurisdiction of the person.

Since the attempt of appellant to contest the merits constitutes a waiver of his objection to the general jurisdiction of the court, the other jurisdictional questions argued are no longer issues in the appeal.

In view of the fact that appellant's waiver of his right to object to the general jurisdiction of the lower court occurred because of the scope of the issues presented on appeal, we conclude that it is proper to remand the cause to the lower court for a determination of all issues in the case, with the right to appellant to answer or otherwise plead to the complaint. However, upon remand, the provisions of the order under appeal granting custody of the children to respondent shall remain in effect until the further order of the lower court.

While the foregoing disposes of the issues properly before the Court on appeal, we dispose of the question of whether a cause of action exists in this State for a divorce a mensa et thoro since that issue will no doubt be involved in the lower court on remand.

A divorce a mensa et thoro is defined in Black's Law Dictionary (4th ed.) as: "A divorce from table and bed, or from bed and board. A partial or qualified divorce, by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage itself." Brewer v. Brewer, 242 S.C. 9, 129 S.E.2d 736.

Although our decisions have in some instances apparently used the terms "divorce a mensa et thoro" and "separate support and maintenance" interchangeably, there are definite distinctions recognized between these proceedings. As pointed out in 24 Am.Jur.2d, Divorce and Separation, Section 3:

"Separate maintenance proceedings are distinguishable not only from a proceeding for an absolute divorce, but also from a proceeding for a limited divorce a mensa et thoro, since an action for separate...