Ware v. Ware

743 S.E.2d 817, 404 S.C. 1, 2013 WL 2631121, 2013 S.C. LEXIS 134
CourtSupreme Court of South Carolina
DecidedJune 12, 2013
DocketAppellate Case No.2011-183286; No. 27267
StatusPublished
Cited by16 cases

This text of 743 S.E.2d 817 (Ware v. Ware) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ware v. Ware, 743 S.E.2d 817, 404 S.C. 1, 2013 WL 2631121, 2013 S.C. LEXIS 134 (S.C. 2013).

Opinion

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, 890 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 [6]*6Randolph 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 five 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 [7]*7not 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.

[8]*8A 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.

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Cite This Page — Counsel Stack

Bluebook (online)
743 S.E.2d 817, 404 S.C. 1, 2013 WL 2631121, 2013 S.C. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-ware-sc-2013.