Prevatte v. Prevatte, No. 1277

CourtCourt of Appeals of South Carolina
Writing for the CourtSANDERS
Decision Date07 December 1988
PartiesSandra Jean PREVATTE, Respondent, v. Harry PREVATTE, Appellant. . Heard
Docket NumberNo. 1277

Page 114

377 S.E.2d 114
297 S.C. 345
Sandra Jean PREVATTE, Respondent,
v.
Harry PREVATTE, Appellant.
No. 1277.
Court of Appeals of South Carolina.
Heard Dec. 7, 1988.
Decided Jan. 23, 1989.

Page 115

[297 S.C. 346] Ronald M. Childress of Childress & Mille, Columbia, for appellant.

Mary E. Buchan of Whittington & Buchan, Mullins, for respondent.

SANDERS, Chief Judge.

This is an appeal from an order of the Family Court reaffirming a prior order of the Court. The prior order concluded that a common law marriage existed between appellant Harry Prevatte and respondent Sandra Jean Prevatte, granted Mrs. Prevatte a divorce on the ground of adultery, and awarded her certain ancillary relief including alimony, an equitable division of marital property and attorney fees. During the proceedings which led to the prior order, Mr. Prevatte attempted to attack the validity of a certain divorce decree purporting to end a previous marriage of Mrs. Prevatte. He alleged that the Court which issued that decree was without jurisdiction. The Family Court ruled that Mr. Prevatte did not have standing to attack the decree. He appealed. We reversed and remanded, holding "a stranger may collaterally attack a decree of divorce for want of jurisdiction in the court entering it, where his property rights are injuriously affected thereby." See Ex parte Nimmer, 212 S.C. 311, 319, 47 S.E.2d 716, 719 (1948). Our opinion was filed as Prevatte v. Prevatte, Memorandum [297 S.C. 347] Opinion No. 87-MO-08 (S.C.Ct.App. filed Jan. 28, 1987). On remand, the Family Court considered the attack by Mr. Prevatte on the validity of the decree, rejected the attack and reaffirmed the prior order. He again appeals. We affirm.

Our standard of review in this case is routine. We have jurisdiction to find facts based on our own view of the evidence, but we are not required to disregard the findings

Page 116

of the trial judge who saw and heard the witnesses and was in a better position to evaluate their testimony. Ray v. Ray, 296 S.C. 350, 372 S.E.2d 910 (Ct.App.1988). We find essentially the same facts as those found by the trial judge.

Broadly stated, the issues presented on appeal are whether the trial judge erred: (1) in concluding that a common law marriage existed between Mr. and Mrs. Prevatte; (2) in granting Mrs. Prevatte a divorce on the ground of adultery; and (3) in awarding Mrs. Prevatte alimony, an equitable division of marital property and attorney fees.

I

We first address the issue of whether the trial judge erred in concluding that Mr. and Mrs. Prevatte were married to each other.

In September 1959, Mr. and Mrs. Prevatte purported to marry by participating in a marriage ceremony. Mrs. Prevatte was, at the time, already married to one Allard Owens. Both Mr. and Mrs. Prevatte were aware of this fact.

Mr. and Mrs. Prevatte lived together as husband and wife for more than twenty-five years. A child, whom they raised to adulthood, was born to them.

In January 1977, Mr. Owens obtained a divorce decree purporting to end his marriage to Mrs. Prevatte. He had served her by publication as ordered by the Clerk of Court for Florence County. Neither Mr. Prevatte nor Mrs. Prevatte became aware of the decree until some time in 1985.

Except for brief periods in 1982 and 1983, Mr. and Mrs. Prevatte continued to live together as if they were married until they permanently separated in October 1984. They held themselves out as husband and wife, filed joint tax returns, and Mr. Prevatte carried insurance on Mrs. Prevatte listing her as his wife.

[297 S.C. 348] In April 1985, Mrs. Prevatte petitioned the Court for a divorce from Mr. Prevatte. Previous actions had been filed in 1983 and 1984. In the 1984 action, Mr. Prevatte answered and admitted the marriage to Mrs. Prevatte.

The appealed order upheld the validity of the decree ending the marriage of Mr. Owens and Mrs. Prevatte, and reaffirmed the prior order which had concluded that a common law marriage thereafter arose between Mr. and Mrs. Prevatte.

A

Mr. Prevatte attacks the validity of the divorce decree obtained by Mr. Owens, arguing that the Court which issued the decree had no jurisdiction over Mrs. Prevatte.

"A judgment may be collaterally attacked if the court lacked jurisdiction and the lack of jurisdiction appears on the face of the record." Yarbrough v. Collins, 293 S.C. 290, 292, 360 S.E.2d 300, 301 (1987). Mr. Prevatte does not point to any jurisdictional defect apparent on the face of the record. Instead, he appears to argue that the Court lacked jurisdiction over Mrs. Prevatte because Mr. Owens undertook to serve her by publication without first making a duly diligent effort to find her. See Section 20-3-70, Code of Laws of South Carolina, 1976 (in a divorce action, service by publication is authorized only when the person to be served "cannot, after due diligence, be found within the State."). In the absence of fraud or collusion, the decision of the officer issuing an order of publication is final. Yarbrough, 293 S.C. 290, 360 S.E.2d 300. Mr. Prevatte does not contend that Mr. Owens obtained the order by fraud or collusion. Therefore, his attack on the validity of the divorce decree must fail.

B

Mr. Prevatte further argues that, even if the divorce decree obtained by Mr. Owens was valid, his relationship with Mrs. Prevatte was not thereafter converted into a common law marriage.

"The presumption that an illicit relationship continues to be unlawful as long as the parties live together is generally [297 S.C. 349] held to be overcome, in states recognizing common-law marriages, by evidence that the parties could not originally marry because

Page 117

of a legal impediment affecting one or both of them, and that during their cohabitation such impediment was removed." 52 Am.Jur.2d Marriage § 139 (1970).

In South Carolina, however, "[a] relationship illicit at its inception does not ripen into a common law marriage once the impediment to marriage is removed. Instead, the law [in this State] presumes that the relationship retains its illicit character after removal of the impediment. In order for a common law marriage to arise, the parties must agree to enter into a common law marriage after the impediment is removed, though such agreement may be gathered from the conduct of the parties." Yarbrough v. Yarbrough, 280 S.C. 546, 551, 314 S.E.2d 16, 19 (Ct.App.1984) (citations omitted). South Carolina has not been alone in following this presumption. E.g., United States Fidelity & Guar. Co. v. Britton, 106 U.S.App.D.C. 58, 269 F.2d 249 (1959) (stating District of Columbia law); Pierce v. Pierce, 355 Pa. 175, 49 A.2d 346 (1946); Appeal of Reading Fire Ins. & Trust Co., 113 Pa. 204, 6 A. 60 (1886); Williams v. Williams, 46 Wis. 464, 1 N.W. 98 (1879); Howard v. Howard, 459 S.W.2d 901 (Tex.Civ.App.1970).

There appears to be a split of authority among the states requiring an agreement after removal of the impediment as to whether the parties must have knowledge that the impediment has been removed. Some of the earlier cases...

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11 practice notes
  • Thomas v. 5 Star Transp., No. 5298.
    • United States
    • Court of Appeals of South Carolina
    • February 18, 2015
    ...law marriage after the impediment is removed, though such agreement may be gathered from the conduct of the parties.Prevatte v. Prevatte, 297 S.C. 345, 349, 377 S.E.2d 114, 117 (Ct.App.1989) (internal quotation marks omitted).“In Prevatte, the [c]ourt of [a]ppeals raised the split of author......
  • Cox v. Clark, No. 96-359
    • United States
    • Court of Appeal of Florida (US)
    • November 5, 1996
    ...300 (1987), the rule unquestionably applies where the "publication affidavit" is fraudulent. Id. 360 S.E.2d at 301; Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114, 116 Question Decided The pertinent South Carolina statute in effect at the time 1 required not only publication, but also t......
  • Lukich v. Lukich, No. 4080.
    • United States
    • Court of Appeals of South Carolina
    • January 30, 2006
    ...and the relationship is not automatically transformed into a common-law marriage once the impediment is removed); Prevatte v. Prevatte, 297 S.C. 345, 349, 377 S.E.2d 114, 117 (Ct.App.1989) (holding a relationship illicit at its inception does not ripen into a common-law marriage once the im......
  • Dye v. Gainey, No. 2397
    • United States
    • Court of Appeals of South Carolina
    • October 16, 1995
    ...basis." Not surprisingly, the trial court found the relationship between Dye and Gainey was adulterous. See Prevatte v. Prevatte, 297 S.C. 345, 351, 377 S.E.2d 114, 118 (Ct.App.1989) ("A finding of adultery is allowed where there is evidence of both the opportunity to commit adultery and th......
  • Request a trial to view additional results
11 cases
  • Thomas v. 5 Star Transp., No. 5298.
    • United States
    • Court of Appeals of South Carolina
    • February 18, 2015
    ...law marriage after the impediment is removed, though such agreement may be gathered from the conduct of the parties.Prevatte v. Prevatte, 297 S.C. 345, 349, 377 S.E.2d 114, 117 (Ct.App.1989) (internal quotation marks omitted).“In Prevatte, the [c]ourt of [a]ppeals raised the split of author......
  • Cox v. Clark, No. 96-359
    • United States
    • Court of Appeal of Florida (US)
    • November 5, 1996
    ...300 (1987), the rule unquestionably applies where the "publication affidavit" is fraudulent. Id. 360 S.E.2d at 301; Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114, 116 Question Decided The pertinent South Carolina statute in effect at the time 1 required not only publication, but also t......
  • Lukich v. Lukich, No. 4080.
    • United States
    • Court of Appeals of South Carolina
    • January 30, 2006
    ...and the relationship is not automatically transformed into a common-law marriage once the impediment is removed); Prevatte v. Prevatte, 297 S.C. 345, 349, 377 S.E.2d 114, 117 (Ct.App.1989) (holding a relationship illicit at its inception does not ripen into a common-law marriage once the im......
  • Dye v. Gainey, No. 2397
    • United States
    • Court of Appeals of South Carolina
    • October 16, 1995
    ...basis." Not surprisingly, the trial court found the relationship between Dye and Gainey was adulterous. See Prevatte v. Prevatte, 297 S.C. 345, 351, 377 S.E.2d 114, 118 (Ct.App.1989) ("A finding of adultery is allowed where there is evidence of both the opportunity to commit adultery and th......
  • Request a trial to view additional results

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