Powers v. Powers, 20931

• Decision Date: 10 April 1979
• Docket Number: No. 20931,20931
• Citation: 254 S.E.2d 289,273 S.C. 51
• Court: South Carolina Supreme Court
• Parties: Shirley D. POWERS, Respondent, v. John Keith POWERS, Appellant.

Page 289

254 S.E.2d 289

273 S.C. 51

Shirley D. POWERS, Respondent, v. John Keith POWERS, Appellant.

No. 20931.

Supreme Court of South Carolina.

April 10, 1979.

Moss, Carter, Branton & Bailey, Beaufort, for appellant.

Blatt & Fales, Barnwell, for respondent.

GREGORY, Justice:

Respondent Shirley D. Powers was granted a divorce from appellant John Keith Powers and was awarded alimony in the amount of three hundred ($300.00) dollars per month by order of the family court dated September 26, 1977. On appeal Mr. Powers contends the family court erred in refusing to recognize the validity of his prior Nevada divorce from Mrs. Powers and in awarding excessive alimony. We affirm.

Mr. and Mrs. Powers were married on June 26, 1955 and are citizens and residents of Beaufort County. On April 22, 1974, Mr. Powers deserted Mrs. Powers for another woman. On August 23, 1974, Mr. Powers traveled to Nevada for the express purpose of obtaining a divorce. He contacted an attorney in Nevada and on October 7, 1974 initiated an action for divorce. Mr. Powers returned to this State on October 8, 1974 but left again for Nevada on November 15, 1974. Mr. Powers obtained a default divorce in Nevada on November 18, 1974 and returned to South Carolina on November 19, 1974. Mr. Powers married his paramour on November 29, 1974.

Mrs. Powers initiated this action for divorce against Mr. Powers on June 20, 1975.

Mr. Powers asserted his prior Nevada divorce as a defense to Mrs. Powers' action, and appeals from the family court's finding that the Nevada divorce has no force or effect in this State. Mr. Powers does not contest the authority of the family court to determine whether the Nevada court had jurisdiction to enter a divorce decree, and he recognizes that his Nevada divorce would have no effect on his obligation to pay alimony to Mrs. Powers.

The effect in this State of a divorce obtained in another jurisdiction is controlled by Section 20-3-210 through Section 20-3-440, 1976 Code of Laws of South Carolina, the Uniform Divorce Recognition Act.

Section 20-3-420 provides that a divorce "obtained in another jurisdiction shall be of no force or effect in this State if both parties to the marriage were domiciled in this State at the time the proceeding for the divorce was commenced."

Section 20-3-430 provides: "Proof that a person obtaining a divorce from the bonds of matrimony in another jurisdiction was (a) domiciled in this State within twelve months prior to the commencement of the proceedings therefor and resumed residence in this State within eighteen months after the date of his departure therefrom or (b) at all times after his departure from this State and until his return maintained a place of residence within this State shall be Prima facie evidence that the person was domiciled in this State when the divorce proceeding was commenced."

The trial judge found that Mrs. Powers has been continuously domiciled in this State and that Mr. Powers was domiciled in this State within twelve months prior to the commencement of the Nevada divorce proceeding and resumed residence in this State within eighteen months after the date of his departure from this State.

The trial judge applied the presumption in Section 20-3-430 to these facts and found that the Nevada divorce decree was of no force or effect in this State since both Mr. and Mrs. Powers were Prima facie domiciled in this State at the time the Nevada divorce proceedings were commenced.

Mr. Powers attempted to overcome this Prima facie presumption by testifying that he left South Carolina intending never to return, that he procured a Nevada drivers license and nonresident hunting license, and that while in Nevada ...