Peterson v. Peterson

• Citation: 333 S.C. 538,510 S.E.2d 426
• Decision Date: 05 October 1998
• Docket Number: No. 2888.,2888.
• Court: Court of Appeals of South Carolina
• Parties: Janet R. PETERSON, Respondent, v. Ralph E. PETERSON, Appellant.

333 S.C. 538

510 S.E.2d 426

Janet R. PETERSON, Respondent, v. Ralph E. PETERSON, Appellant.

No. 2888.

Court of Appeals of South Carolina.

Heard September 1, 1998.

Decided October 5, 1998.

Marion O. Hanna, of Columbia, for appellant.

Keri A. Jordan, of Ruth & MacNeille, of Hilton Head Island, for respondent.

CURETON, Judge:

Janet R. Peterson (Wife) brought this action against her exhusband, Ralph E. Peterson (Husband), to enforce support provisions contained in a settlement agreement between the parties. After the family court ruled in Wife's favor, and then amended the ruling, Husband appealed, asserting the family court did not have jurisdiction of the matter. We agree, and vacate the decision of the family court.

FACTS

The parties were married in New York on July 1, 1944. During the marriage, six children were born. The couple separated on January 7, 1967, and entered into a separation agreement dated February 14, 1968.

The agreement provided in part that Husband, during his life, would pay spousal maintenance to Wife while Wife remained unmarried. After the youngest child completed her undergraduate education, Husband would pay wife a minimum of $350 per month, which would be "increased by twenty (20%) percent of the gross increase of salary earned by the Husband for the year ending the previous December 31st over his present salary of $25,000.00 per annum." The parties were divorced by decree in New York in September 1970.

In April 1994, Wife brought suit in Beaufort County family court against Husband, then a resident of South Carolina, to enforce the spousal maintenance provision of the separation agreement. Wife alleged Husband, in January 1991, unilaterally decreased her payments from $1,578 per month to $798 per month, and in January 1992, decreased her payments further to $350.00 per month. Wife submitted Husband was then in arrears in his support payments in the amount of $42,426, and asked the court, inter alia, to order Husband to resume payments of $1,578 per month, to pay the arrears, with interest, and to pay her attorney's fees.

Husband answered in defense that the amount of the payments in excess of $350 were based on his "salary," and that he was no longer earning a salary as he had retired. The family court found the term "salary" included "any and all income of the Defendant," and ordered interpretation of the agreement in accordance with such finding. The court did not address the arrearages or attorney's fees. Neither party appealed.

Some eight months later, Wife filed a Motion for Relief from Order in Accordance with SCRCP Rule 60(a) with respect to the arrearages and attorney's fees. The Motion claimed the court did not specifically address these issues, and requested a "specific ruling ." The court subsequently amended its original order to address the arrearages, but found "no proof of attorney's fees was offered to [the] Court," and declined to award them.

Husband appealed the amended order on several grounds, including that the family court order should be declared void ab initio because the family court lacked subject matter jurisdiction to interpret the separation agreement. Because we agree with Husband's assertion, we do not need to address his other grounds for reversal.

LAW/ANALYSIS

Husband contends the separation agreement, executed in 1968, is governed by the law in South Carolina prior to the decision of Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983). We agree.

In Moseley, the supreme court decreed that thereafter "jurisdiction for all domestic matters, whether by decree or by agreement, will vest in the family court." Moseley, 279 S.C. at 353, 306 S.E.2d at 627. Under pre-Moseley law, the family court retained jurisdiction over a separation agreement only if the parties provided that the agreement had become an integral part of a court decree and had lost its character as a separate agreement. [Austelle v. Austelle, 294 S.C. 19, 22, 362 S.E.2d 181, 183 (Ct.App.1987)

.] However, "agreements which were incorporated but not merged furnished the family court no subject-matter jurisdiction over them." Id.; see Bryant v. Varat, 278 S.C. 77, 292 S.E.2d 298 (1982) (holding the family court lacked subject matter jurisdiction over a 1978 agreement incorporated but not merged into a divorce decree).

Treadaway v. Smith, 325 S.C. 367, 373, 479 S.E.2d 849, 853 (Ct.App.1996).

In South Carolina, the construction of a separation agreement is a matter of contract law; therefore, the intention of the parties is controlling. Estate of Revis v. Revis, 326 S.C. 470, 484 S.E.2d 112 (Ct.App.1997). The Peterson separation agreement states:

Each of the parties hereto covenants and agrees that in the event of [sic] any action for absolute or limited divorce is instituted at any time hereafter by any party in any jurisdiction whatsoever, the parties shall be bound by all the terms of this separation agreement and this agreement, if acceptable to the Court, shall be incorporated by reference in any decree that may be granted by said Court. Notwithstanding such incorporation this agreement shall not be merged in any such judgment or decree, but this agreement and all the terms thereof shall survive and be separate from such decree, and the parties hereto shall be bound to the performance of this agreement in accordance with the terms hereof.

This language evidences a clear intent that the agreement retain its contractual nature even if subsequently incorporated in the divorce decree. As in Zwerling v. Zwerling, 273 S.C. 292, 255 S.E.2d 850 (1979):

The obligation of support that [Wife] seeks to enforce against [Husband] does not arise from a statutory duty of family support. Neither does it arise from a duty that was judicially imposed as an incident of a divorce decree.

The only obligation [Husband] may have to contribute to the support and maintenance of [Wife] arises, if at all, from the separation agreement entered into by and between the parties prior to their divorce . . . .

Id. at 294, 255 S.E.2d at 851.

Lack of subject matter jurisdiction may not be waived, even by consent of the parties. Anderson v. Anderson, 299 S.C. 110, 382 S.E.2d 897 (1989). As the court did in Zwerling, we find Husband's obligation under the agreement is enforceable only by resort to ordinary contract remedies. Wilson v. Wilson, 274 S.C. 516, 266 S.E.2d 65 (1980). Since the family court's subject matter jurisdiction does not extend to actions ex contractu, we hold the family court's orders in this matter are void for lack of subject matter jurisdiction. Zwerling, 273 S.C. 292,255 S.E.2d 850; see Bryant v. Varat, 278 S.C. 77, 292 S.E.2d 298 (1982)

(when language revealed intent that agreement retain its contractual nature, the dispute concerned a contractual obligation and the family court was without subject matter jurisdiction); Kelly v. Edwards, 276 S.C. 368, 278 S.E.2d 773 (1981) (when language evidenced intent that parties be bound by agreement in determining rights and liabilities thereunder, the family court was without jurisdiction to determine contractual obligations); Fielden v. Fielden, 274 S.C. 219, 262 S.E.2d 43 (1980) (where agreement was not incorporated or merged into any family court order, the action to enforce the agreement was contractual in nature and family courts have no subject matter jurisdiction over actions in contract); Ratchford v. Ratchford, 295 S.C. 297, 368 S.E.2d 214 (Ct.App.1988) (where language evidenced intent that agreement retain its contractual nature despite incorporation in the divorce decree, the family court's order was void for lack of subject matter jurisdiction).

Wife responds that both S.C.Code Ann. § 20-7-420 ¹ and § 20-3-170² confer the necessary jurisdiction upon the family court. Both code sections were extant when Moseley v. Mosier was issued. We presume the court knew of these provisions when it rendered that decision. This court does not have the power to overturn the supreme court on this basis.

Wife next contends the spousal support obligation stems not from just the Separation Agreement, but also the divorce decree, which provides in part: "ORDERED, ADJUDGED AND DECREED that the plaintiff shall pay to the defendant the amount of support and maintenance as per the terms of the seperation [sic] agreement, ...."

We do not believe this statement is dispositive. The governing issue is not whether the decree orders the support provision of the Agreement to be performed, but rather, "[t]he intention of the parties and whether they relinquished their contractual rights in favor of complete governance by the terms of the decree." Austelle v. Austelle, 294 S.C. 19, 22, 362 S.E.2d 181, 183 (Ct.App.1987). We have already determined the Petersons' agreement evidenced an intent that it retain its separate character. As in Austelle, we

hold the language in the agreement evidences the intent of the parties to be bound solely by the support agreement in determining their rights and liabilities. The current dispute between the parties, accordingly concerns a contractual obligation and the family court is without subject matter jurisdiction.

Id. at 23, 362 S.E.2d at 183-84.

Wife asserts the agreement is entitled to "full faith and credit" by South Carolina courts, citing Scheper v. Scheper, 125 S.C. 89, 118 S.E. 178 (1923) and Marshall v. Marshall, 282 S.C. 336, 318 S.E.2d 133 (Ct.App.1984). This argument is inapposite. Our holding herein does not prevent Wife from bringing her action in a court of competent jurisdiction; it simply precludes her from prosecuting her claim in a family court in South Carolina.

[T]he spirit of comity does not require that a nonresident shall be allowed a remedy which by the policy of the state law is denied to its own citizens, since comity goes no further than to require the recognition and enforcement of the law of the place of the right, leaving the actual enforcement to the state called upon to enforce such law

...