Wesley-Burke v. Wesley-Burke

• Decision Date: 06 January 1986
• Docket Number: No. 22456,A,WESLEY-BURK,R,22456
• Citation: 339 S.E.2d 512,288 S.C. 28
• Court: South Carolina Supreme Court
• Parties: Mary Honoraespondent, v. Peterppellant. . Heard

Page 512

339 S.E.2d 512

288 S.C. 28

Mary Honora WESLEY-BURKE, Respondent, v. Peter WESLEY-BURKE, Appellant.

No. 22456

Supreme Court of South Carolina.

Heard Jan. 6, 1986.

Decided Jan. 30, 1986.

William C. Cleveland, of McKay & Guerard, Charleston, for appellant.

Jane A. McFaddin, Charleston, for respondent.

HARWELL, Justice.

In this divorce action, appellant contends that the lower court erred in lifting a stay and granting a divorce when the appellant had not received proper notice. We agree and reverse the decree of the family court.

The respondent wife instituted a divorce action against the appellant husband in Pennsylvania. In 1981, the wife and child moved to South Carolina. The wife filed for divorce in South Carolina in 1983. The husband was not a resident of South Carolina and had no contacts with this state.

The family court judge stayed the South Carolina action in order for the divorce proceedings in Pennsylvania to continue. The order gave the wife the right to move for dissolution of the stay upon a showing that no substantial ruling on the merits had been made within a reasonable time in Pennsylvania. Less than three months later, this matter came up on the family court docket for a 15 minute hearing. At the time of the hearing, the stay of the divorce action was in effect. No oral, written, or other motion to lift the stay had been made by the wife. At the hearing, the judge entertained and granted the wife's oral motion to lift the stay. The wife was granted a divorce on the ground of one year's separation.

Due to the lack of notice, the husband did not contest the grounds of the divorce or seek equitable division, alimony, or other relief. After the South Carolina divorce was granted, the wife moved to dismiss all matters pending in Pennsylvania. The husband's claim for equitable division, which had been pending in the Pennsylvania court, was dismissed.

The sole issue on appeal is whether the judge erred in lifting the stay and granting the divorce without any notice of the motion to lift the stay. We hold that he did and accordingly reverse.

Pursuant to Family Court Rule 3.5, the Rules of Practice for the Circuit Courts of South Carolina are applicable to all domestic relations actions and related proceedings in the family courts. Circuit Court Rule 56, which was in effect at the time of this action, ¹ specifically states that "all motions shall be brought before the court on a notice or by an order to show cause...." South Carolina Code Section 15-27-370 specifically requires that a notice of motion shall be given four days before the hearing on the subject of the motion. "When a notice of a motion is necessary, it must be served four days before the time appointed for the hearing. But the court or judge may by an order to show...