Taylor v. Taylor
| Decision Date | 31 December 1962 |
| Docket Number | No. 18012,18012 |
| Citation | 241 S.C. 462,128 S.E.2d 910 |
| Court | South Carolina Supreme Court |
| Parties | Thelma L. TAYLOR, Respondent, v. R. E. TAYLOR, Appellant. |
James P. Mozingo, III, D. Kenneth Baker, Greer & Chandler, Darlington, for appellant.
Robert L. Kilgo, Darlington, for respondent.
Thelma L. Taylor, the respondent herein, on April 28, 1951, instituted an action for a divorce a vinculo matrimonii from her husband, R. E. Taylor, the appellant herein, on the ground of physical cruelty. Section 20-101(3) of the 1952 Code of South Carolina. The respondent, in her complaint, prayed for an allowance to her of pendente lite and permanent alimony, together with suit money. Section 20-112, of the 1952 Code. The respondent also demanded a division of the property of the parties. Discovery proceedings were had to locate assets for division without success and at the trial of the divorce case she presented no evidence in relation to her claim for alimony.
The record shows that on October 3, 1953, the respondent was granted a divorce a vinculo matrimonii from the appellant on the ground of physical cruelty. She was also granted suit money but she was denied any alimony because the record disclosed that 'plaintiff's earnings at the time are sufficient for her support.'
The respondent, on August 10, 1961, which was seven years and ten months after she had obtained her divorce, served on the appellant a notice and an affidavit that she would move the Court for alimony and attorney's fees on the basis of a change of condition since the decree of divorce. The respondent, by her affidavit, asserts that she was unemployed, in bad health, and without funds for her support. The appellant resisted the motion of the respondent for alimony and attorney's fees upon the following grounds: (1) That the original decree of divorce, not having granted alimony, was res judicata of the issue here raised; (2) That there was no statute authorizing an alimony award subsequent to the divorce decree; and (3) That the decree of absolute divorce was entered without reservation of the right thereafter to make an allowance for alimony, and hence, the Court was without authority to allow alimony in this proceeding.
This matter was heard by the Honorable James A. Spruill, Jr., Judge of the Fourth Circuit, upon affidavits submitted by the parties. Thereafter, on November 4, 1961, Judge Spruill issued his order directing the appellant to pay to respondent Twenty ($20.00) Dollars per week alimony until the further order of the Court. He held that the defenses interposed by the appellant were without merit. This appeal followed.
The exceptions of the appellant raise the same questions as were interposed by him in resisting the motion of the respondent for alimony. Section 20-116 of the 1952 Code, provides that 'Whenever any husband, pursuant to a judgment of divorce * * * has been required to make to his wife any periodic payments of alimony and the circumstances of the parties * * * shall have been changed since the rendition of such judgment, either party may apply to the court which rendered the judgment for an order and judgment decreasing or increasing the amount of such alimony payments or terminating such payments * * *.' It is observed that this statute provides only that the Court may increase, decrease or terminate any alimony payments provided for in a judgment of divorce. The Trial Judge correctly held that this statute was not applicable. We think he was correct in this holding because the decree of divorce here involved had not awarded any alimony to the respondent. Since no alimony had been awarded, there was nothing to increase, decrease or terminate. The Virginia case of Perry v. Perry, 202 Va. 849, 120 S.E.2d 385, is one upon a comparable factual situation under a similar statute. In the cited case the wife filed a petition to reinstate a divorce case and to require her husband to pay alimony. The Supreme Court of Appeals of Virginia held:
We conclude that there was no statute authorizing the Trial Judge, under the factual situation here disclosed, to award the respondent alimony subsequent to her divorce decree. Had the decree awarded the respondent alimony in any amount, then, under the statute, Section 20-116, the Court would have had the authority to increase, decrease or terminate, upon proper showing of a change of condition, the alimony payments provided for in a judgment of divorce. Since, in this case, no alimony was awarded, the statute is inoperative.
It is the position of the appellant that since the decree of divorce in this case did not reserve the right thereafter to make an award for alimony, the Court was without authority to allow such in this proceeding.
The general rule is that alimony may be granted after a decree of divorce, if right to have it subsequently determined is reserved in the divorce decree. Zuber v. Zuber, 215 Ga. 314, 110 S.E.2d 370; Brinn v. Brinn, 147 Va. 277, 137 S.E. 503; Perry v. Perry, supra; Hanks v. Hanks, 282 Ky. 236, 138 S.W.2d 362; 27A C.J.S. Divorce § 231, at page 1024, and the cases cited in the footnote. In a final decree awarding a divorce a vinculo matrimonii the Court, in the absence of statute, may reserve the question of allowance of future alimony, and in such case the decree is not an adjudication of a matter which by its very terms is left open for determination. However, where the divorce decree does not provide for alimony and there is no reservation of jurisdiction in the decree, such is final and absolute, and the wife cannot be allowed alimony in any subsequent proceeding. Perry v. Perry, supra; Brinn v. Brinn, supra; Marcel v. Marcel, Fla.App., 132 So.2d 210; Weiss v. Weiss, Fla.App., 118 So.2d 833; 43 A.L.R.2d at page 1396.
This brings us to the question of whether the decree of divorce in this case reserved to the Court the right to award alimony subsequent thereto. An intention to reserve jurisdiction of the subject of alimony cannot be derived from a provision in a divorce decree where there are no words of express reference thereto. In the absence of an...
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