Zwerling v. Zwerling, 20985
| Decision Date | 13 June 1979 |
| Docket Number | No. 20985,20985 |
| Court | South Carolina Supreme Court |
| Parties | Nancy S. ZWERLING, Appellant, v. Martin H. ZWERLING, Respondent. |
John Beasley and James D. Jefferies, Greenwood, for appellant.
C. LaVaun Fox, Aiken, William H. Burkhalter, Jr., of Garvin, Fox, Zier & Burkhalter, North Augusta, for respondent.
This appeal is from the order of the family court refusing to enforce three separate money judgments against respondent Martin H. Zwerling. The money judgments were obtained by appellant Nancy S. Zwerling in the Supreme Court of Suffolk County, New York. We hold the family court was without jurisdiction over the subject matter of this action.
Appellant and respondent were divorced by order of the Supreme Court of Suffolk County, New York, dated December 3, 1974. Respondent remarried on December 28, 1974 and thereafter moved with his new bride to this State. See Zwerling v. Zwerling, 270 S.C. 685, 244 S.E.2d 311 (1978).
In March, June, and July, 1977, appellant obtained three separate money judgments for support payments that were past due under the parties' separation agreement. Each judgment was obtained in New York after personal service upon respondent in this State.
Appellant commenced this action in October 1977 to enforce the New York judgments in this State. The action was originally brought in the Court of Common Pleas but was transferred to the Family Court of the Second Judicial Circuit by order of the circuit judge. The case was transferred by the circuit judge Ex mero motu.
By order dated June 15, 1977, the family court refused to enforce the New York judgments after finding that the New York court lacked personal jurisdiction over respondent.
On appeal appellant contends the family court was without jurisdiction over the subject matter of this action. We agree.
The obligation of support that appellant seeks to enforce against respondent does not arise from a statutory duty of family support. Neither does it arise from a duty that was judicially imposed as an incident of a divorce decree.
The only obligation respondent may have to contribute to the support and maintenance of appellant arises, if at all, from the separation agreement entered into by and between the parties prior to their divorce. Under the terms of the separation agreement respondent agreed to pay appellant $350 per week for her support and maintenance. This agreement was not incorporated or merged into the parties' divorce decree, as is shown by the following quotation from the divorce order issued by the New York Court:
(T)he Separation Agreement entered into between the parties on the 11th day of September, 1974, a copy of which is on file with the Court, shall survive and shall not be merged in this judgment and the Court retains jurisdiction of the matter concurrently with the Family Court, for the purpose of specifically enforcing such of the provisions of that Agreement as are capable of specific enforcement or, to the extent permitted by law, of making such further decree with respect to alimony as it finds appropriate under the circumstances...
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