Ware v. Ware

Decision Date12 June 2013
Docket NumberNo. 27267.,27267.
PartiesMargaret P. WARE, Respondent, v. Ralph D. WARE, Petitioner. Appellate Case No.2011–183286.
CourtSouth Carolina Supreme Court

OPINION TEXT STARTS HERE

Gregory Samuel Forman, of Charleston, for Petitioner.

William J. Clifford, of North Charleston, for Respondent.

Justice BEATTY.

This case involves dual domestic actions instituted in Alabama and South Carolina by Ralph D. Ware (Husband) and Margaret P. Ware (Wife). The family court denied Husband's motion to vacate the orders in the South Carolina case, and the Court of Appeals affirmed. Ware v. Ware, 390 S.C. 493, 702 S.E.2d 390 (Ct.App.2010). This Court has granted Husband's petition for a writ of certiorari. Husband contends the Court of Appeals erred in upholding the South Carolina orders, which declared the parties to be living separate and apart and included a property division and an award of alimony and attorney's fees to Wife. Husband asserts full faith and credit should have been given to the Alabama decree, which granted the parties a divorce and set forth a different property division and contained no ruling on alimony. It is undisputed that Husband instituted his action first, but Wife has raised questions as to the Alabama court's jurisdiction over her and the marital property that she contends precludes affording full faith and credit to the Alabama order. Husband argues Wife has waived any objection in this regard. We reverse and remand.

I. FACTS

The parties married in Berkeley County in September 1986. At the time of the marriage, Husband was in the United States Navy, and he retired in May 1998. Following Husband's retirement, he was employed locally for two years, and then obtained a job as a federal civil servant with the United States Navy's Military Sealift Command, which required him to be away for long periods. Wife worked at one time, but medical issues resulted in her being declared totally disabled. During their marriage, the parties resided in a marital home they purchased in Berkeley County. No children were born of the marriage.

On January 10, 2007, Husband filed a summons and complaint for divorce and a property division in the circuit court of Randolph County, Alabama. Husband alleged he was a resident of Alabama, Wife was a resident of South Carolina, and that they had separated on February 27, 2001 due to irreconcilable differences. In addition to a divorce, Husband sought an award of his retirement benefits, his vehicle, and his clothing and personal belongings. Husband requested that Wife be awarded her retirement and disability benefits, a vehicle, and the marital home and its furnishings in South Carolina. Wife signed a certified mail receipt on January 13, 2007 acknowledging service of the pleading.

About one month later, on February 16, 2007, Wife filed the instant action in South Carolina seeking, among other things, an equitable division of marital property, including Husband's retirement; alimony; and attorney's fees. Wife stated the parties had separated on or about February 27, 2001 when Husband abandoned the marital home, and averred that she is entitled to live separate and apart from” Husband. She did not request a divorce. Wife stated in her complaint that she was a resident of Berkeley County, South Carolina, and Husband was a resident of Randolph County, Alabama, and that the family court had jurisdiction over the parties and the subject matter of the action.

After Wife's attempts to serve Husband at his last known address failed, Wife was permitted to serve Husband with the South Carolina action by publication in Alabama. Husband did not answer Wife's pleading.

On February 20, 2007, some four days after Wife filed her complaint in South Carolina, an Alabama attorney filed a Limited Notice of Appearance on behalf of Wife in Alabama. The same day, Wife's counsel also filed a motion to dismiss Husband's action. Wife argued, in relevant part, that the “complaint does not meet the requirements of Alabama Code Section 30–2–5.” 1 In addition, Wife asserted the Alabama court does not have personal jurisdiction over her and does not have jurisdiction “over the marital res at issue,” as Wife is a resident of South Carolina with no contact with Alabama as evidenced in a supporting affidavit.

In the alternative, Wife asked that, if the court decided to proceed with the case, that it rule that it has jurisdiction only to divorce the parties and not over any of the marital assets and liabilities, which are located in South Carolina or other states, and Wife noted ancillary proceedings in such states were pending. Lastly, Wife requested that she “be awarded attorney's fees and costs for litigating this jurisdictional issue.”

After a hearing, the Alabama court denied Wife's motion to dismiss by order dated May 13, 2007. In its order, the Alabama court stated the hearing was held on Wife's motion to dismiss “for [Husband's] failure to plead and prove residence as required by Alabama statute.” The court noted that Husband had testified at the hearing that he had been domiciled in Alabama since 2001; additionally, Husband had filed amended pleadings denoting the same.2 The court stated while Husband “spends most of his time at sea due to his profession, residency is based on more than [where] he lays his head each night.” On May 17, 2007 the court set the trial date for August 23, 2007.

On or about June 1, 2007, Wife filed a Motion to Reconsider,” pointing out that, while the court found it had personal jurisdiction as to Husband, it had failed to address her argument that the Alabama court lacked personal jurisdiction over her and the parties' marital property based on her insufficient contacts with Alabama. The court issued no ruling at that time.

On June 18, 2007, Wife's Alabama attorney filed a motion to continue the August 23rd trial date previously set for the Alabama action citing, among other things, the fact that Wife's motion for reconsideration was still pending. There is no indication in the record that a formal ruling was issued on this motion prior to the August trial.

A final hearing was held on Wife's domestic action in South Carolina on June 22, 2007. Wife was present with her attorney; however, Husband was absent and was not otherwise represented by counsel.

By order filed July 31, 2007, the South Carolina family court declared Wife shall be permitted to continue living separate and apart from Husband, it awarded Wife alimony of $750 per month, it equitably distributed the marital assets, including Husband's military retirement, and it awarded Wife $2,867.91 in attorney's fees. The family court noted Wife had testified that she desired to continue her marriage in spite of Husband's desertion because she is afforded military medical coverage, which supplements her Medicare. However, upon her divorce, which Husband was pursing in Alabama, she will no longer have that medical coverage.

As to the property, the family court awarded Wife the marital home in South Carolina, a 27% share of Husband's military retirement, and a Chrysler Jeep. Husband was awarded property located in Georgia after Wife relinquished all interest therein, all of his Civil Service retirement, the balance of his military retirement that was not awarded to Wife, and three vehicles. He was ordered not to change benefits documents or insurance policies that have named Wife as a beneficiary.

The family court found it had jurisdiction over the parties and subject matter jurisdiction of this action except as to the disposition of the Georgia property, to which Wife had relinquished any interest. The family court stated it had been made aware of ongoing litigation in Alabama by a letter from Husband's counsel notifying the court of the Alabama action and seeking to have the South Carolina action dismissed. As to this request, the family court stated, “The Alabama attorney, neither being a member of the South Carolina Bar or being authorized to proceed pro hac vice, was not authorized to practice law in this state and the Court took no actions based on the Defendant's attorney's letter.”

A hearing was held by the Alabama court as scheduled on August 23, 2007. By that time, Wife's Alabama counsel had withdrawn from representation on the basis Wife had retained her for the limited purpose of handling the motion to dismiss and had not contacted her thereafter to retain her for further representation.3 The Alabama court filed a final judgment on September 5, 2007 declaring the orders issued in South Carolina to be “null and void and of no effect.” The court stated the South Carolina judge “was sent notice of this Court's Order May 13, 2007 [denying Wife's motion to dismiss], and yet refused to abstain from further proceedings and even refers to the notice in her Final Order....”

The court granted Husband a divorce and divided the marital estate, including real property located in South Carolina and personal property, along the lines requested by Husband in his complaint. Both Husband's complaint and the court's order are silent on the issue of alimony. The order did not address Wife's previous motion for a continuance.

On October 12, 2007, Wife filed an “Appeal/Amendment of the Alabama court's final order with the trial court. Wife stated she was “not contesting the divorce in any manner,” but that she believed she had a right to appeal and/or amend the final order because she is “entitled to a fair share of the personal assets that were acquired during [the] marriage and alimony.” Wife requested the Alabama court to “reconsider the decision based on the lack of jurisdiction and fair play over the issue of alimony and the distribution of marital assets.”

On January 17, 2008, the Alabama court summarily denied Wife's Motion to Reconsider.” The order does not otherwise identify which of Wife's motions that it was ruling on, or the date of the order it reviewed.4 The Alabama court...

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