Nolletti v. Nolletti

• Decision Date: 11 July 1963
• Docket Number: No. 18096,18096
• Citation: 243 S.C. 20,132 S.E.2d 11
• Court: South Carolina Supreme Court
• Parties: Catherine NOLLETTI, Appellant, v. Dominic NOLLETTI, Respondent.

Page 11

132 S.E.2d 11

243 S.C. 20

Catherine NOLLETTI, Appellant, v. Dominic NOLLETTI, Respondent.

No. 18096.

Supreme Court of South Carolina.

July 11, 1963.

Ryan L. Scott, Columbia, for appellant.

Clarke W. McCants, Jr., James H. Fowles, Jr., Columbia, for respondent.

LEWIS, Justice.

The wife seeks in this action a divorce from her husband upon the ground of desertion. Section 20-101(2) of the 1962 Code of Laws provides that desertion, to constitute a ground for divorce, must continue for a period of one year. The wife's complaint alleged that she was wilfully deserted by her husband on July 11, 1962. This action for divorce was instituted on August 15, 1962, approximately one month after the alleged desertion. Conceding in effect, that she would not be entitled to a divorce on the ground of desertion under the provisions of Section 20-101(2), since the period of desertion had not continued for one year prior to the commencement of the action, the wife alleged in her complaint that the legislature was without power to place a time limitation upon the period of desertion as a ground for divorce, in view of the provisions of Article 17, Section 3 of the Constitution of this State, and that Section 20-101(2) was, therefore, unconstitutional. The lower court sustained the constitutionality of the section in question and denied the divorce because admittedly the conditions of the statute had not been met, and the wife has appealed.

The sole question for determination is whether Section 20-101(2) of the 1962 Code of Laws is unconstitutional as prescribing a condition to the granting of a divorce on the ground of desertion in violation of Article 17, Section 3, of the Constitution of this State.

Article 17, Section 3, of the Constitution of South Carolina originally prohibited the granting of divorces in this State. In 1949 this constitutional provision was repealed and in its stead an amendment was adopted which allows divorces upon certain specified grounds. Article 17, Section 3, as amended in 1949, now reads:

'Divorces from the bonds of matrimony shall be allowed on grounds of adultery, desertion, physical cruelty, or habitual drunkenness.'

Following the adoption of the foregoing constitutional amendment, the legislature on April 15, 1949 enacted into law a comprehensive Act regulating the granting of divorces. This Act, with subsequent amendments, is now Sections 20-101 et seq. of the 1962 Code of Laws. Section 20-101 sets forth the grounds for divorce and is as follows:

'No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to-wit:

'(1) Adultery;

'(2) Desertion for a period of one year;

'(3) Physical cruelty; or

'(4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug.' (Emphasis added.)

We are here concerned only with Subsection 2 of the foregoing Section. This subsection requires that desertion exist for a period of one year before a divorce can be granted on that ground, while Article 17, Section 3, authorizes desertion as a ground for divorce, without prescribing its duration. It is, therefore, argued, that, since Section 20-101(2) imposes the condition that desertion as a ground for divorce must exist for one year and Article 17, Section 3 of the Constitution, in naming desertion as a ground for divorce imposes no such limitation, Section 20-101(2) is to that extent in conflict with the constitutional provision and is unconstitutional for that reason.

In Clarke v. South Carolina Public Service Authority, 177 S.C. 427, 181 S.E. 481, 484, the rules by which we are governed in considering the constitutionality of an act of the legislature are concisely stated as follows:

'In determining this question it is to be observed that it is a well-settled rule in South Carolina that: A statute will, if possible, be construed so as to render it valid; that a legislative act will not be declared unconstitutional unless its repugnance to the Constitution is clear and beyond reasonable doubt; that every presumption will be made in favor of the constitutionality of a legislative enactment; that it will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution; that all reasonable presumptions must be made in favor of the validity of the Act; and that the Constitution of South Carolina is a limitation upon, rather than a grant of, legislative power.'

It is a well settled principle that the provisions of the Constitution of this State are a limitation of legislative power and that the legislature may enact any law not expressly, or by clear implication, prohibited by the Constitution; and, in determining the validity of a statute, the Constitution must be examined, not to ascertain whether a power has been conferred, but whether it has been taken away. Floyd v. Parker Water & Sewer Sub-District, 203 S.C. 276, 17 S.E.2d 223.

Since the legislature has plenary power in legislative matters, it may enact any law relating to the subject of divorce not prohibited by the Constitution. The only constitutional provision in this State relating to divorce is that contained in Article 17, Section 3, and any restriction upon the power of the legislature to deal with the subject of divorce must be found therein.

The constitutional provision in question specifies the grounds for divorce and...