Chapter Five Separate Support and Maintenance

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Five SEPARATE SUPPORT AND MAINTENANCE

A. In General

This chapter considers issues related to actions for separate support and maintenance.¹ It should be read in conjunction with Chapter Six, Alimony because some of the issues common to both alimony and separate support and maintenance are discussed in Chapter Six but not here. For example, the factors to be considered in awarding spousal support and the forms and methods of payment allowed are discussed in the Alimony chapter.

The purposes of actions for separate support and maintenance are not defined by statute or case law. The title, "action for separate support and maintenance," suggests that it is essentially an action for alimony,² although it is used as a vehicle for resolving a wide range of disputes between separated (or separating) spouses, even if alimony is not requested, when neither party has grounds for divorce or chooses not to assert them.

The family court is authorized to treat a divorce action as an action for separate support and maintenance if a divorce is not granted to either party. See Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629 (1951); Piana v. Piana, 239 S.C. 367, 123 S.E.2d 297 (1962); Gill v. Gill, 269 S.C. 337, 237 S.E.2d 382 (1977).

1. Issues Litigated and Decided Cannot Be Relitigated

Issues that are litigated and decided in a separate maintenance and support action cannot be relitigated in a subsequent divorce proceeding. In Powell v. Powell, 249 S.C. 663, 156 S.E.2d 305 (1967), the wife brought an earlier action for separate maintenance and support, claiming successfully that her departure from the marital home was justified and she was entitled to support. The husband later brought an action for divorce on the ground of desertion. The Supreme Court held that his action was barred by the wife's action for separate support and maintenance:

It is hornbook law that a prior judgment of a court having jurisdiction of the parties and the subject matter is conclusive in any subsequent action between the parties, or their privies, of all questions which were actually litigated in the prior action and determined by the judgment, regardless of whether the subsequent action involves the same or a different cause of action.

Powell at 665, 156 S.E.2d at 306. A similar situation and the same result are found in Blackmon v. Blackmon, 294 S.C. 187, 363 S.E.2d 400 (Ct. App. 1987) (holding that evidence of changed circumstances were not allowed where the wife pleaded the prior ruling in a separate support action and that no changed circumstances existed and the husband merely alleged she was not entitled to alimony).

This issue is confused somewhat by Page v. Page, 260 S.C. 298, 195 S.E.2d 613 (1973). The wife brought an action in the circuit court, alleging physical cruelty and seeking separate support, but she was unsuccessful. Later, the husband obtained a divorce on the ground of desertion. The trial court found that the wife's request in the same action for a divorce on the ground of physical cruelty was not supported by the evidence, and the Supreme Court upheld this ruling and refused to review the evidence, stating that "[t]he prior judgment precludes the wife from relitigating that issue although the cause of action is not the same as in the first action." Page at 301, 195 S.E.2d at 614. Somewhat incongruously, however, the Supreme Court held that it was an error for the trial judge to refuse to consider the wife's claim to alimony. The trial judge had ruled that the claim was barred by the prior adjudication in the circuit court. The Supreme Court said this was an error and remanded the case for consideration of her alimony claim, stating:

Regarding the former adjudication that the wife left the marital abode without just cause or excuse as conclusive against her claim to alimony in the divorce action, the court refused to hear her evidence relating to this claim. This was error. Only an adulterous wife is automatically barred from alimony by the terms of the statute. Sec. 20-113, Code of1962. In all other cases, "the circumstances and conduct of an offending spouse might be such as to bar her from alimony but this is a matter solely for the trial judge, governed by equity and justice and the condition of both parties. The exercise of such a discretion will not be disturbed on appeal unless an abuse thereof is shown." Herbert v. Herbert, S.C., 194 S.E.2d 238, 239 (1973); McKenzie v. McKenzie, 254 S.C. 372, 175 S.E.2d 628 (1970).

Page at 301, 195 S.E.2d at 614.

It is difficult to understand why the prior determination that the wife was not entitled to separate support and maintenance would not bind the subsequent court on the issue of alimony, absent proof of changed circumstances, in light of the fact that the factors for determining whether or not spousal support should be awarded are the same regardless of whether one is seeking it in an action for separate support and maintenance or in a divorce proceeding. Perhaps the Supreme Court felt that separate support should have been awarded in the initial circuit court action, even though it agreed with the trial court that the husband's misconduct was not sufficient to grant a divorce. However, it did not say this, so the results in the case are difficult to explain.

If spousal support is requested in the pleadings in a separate support and maintenance action, an agreement to forego it could bar a subsequent request for alimony in a divorce action. In Lawter v. Lawter, 287 S.C. 298, 345 S.E.2d 479 (1986), the Supreme Court held that the family court has no authority to award alimony in a divorce action where the parties stipulated, and the family court noted as a finding of fact that the wife waived her right to spousal support at the separate maintenance hearing.

Settlement agreements in separate support and maintenance actions do not preclude subsequent litigation if the parties fail to obtain a clear ruling from the trial court based on some proof other than the submission of the agreement. Care must be taken to get a ruling by the trial judge on the merits of the issues, if one wants to rely on a separate maintenance and support action as a final disposition of disputed issues. In Clayton v. Clayton, 287 S.C. 308, 338 S.E.2d 326 (1985), an action for separate maintenance and support was ended by agreement of the parties, the terms of which were included in the family court's order. However, the Supreme Court held that the issues covered in the agreement could be reconsidered by the family court in a subsequent divorce proceeding because the entitlement to support had not been "litigated or decided." Rather, the order simply recited the agreement and made no ruling as to fairness. The holding in Clayton was distinguished in Murphy v. Murphy, 293 S.C. 151, 359 S.E.2d 91 (Ct. App. 1987), where the agreement in question was approved and incorporated into the order of the family court, not just merely recited. Moreover, in the action brought to attack the prior order in Murphy, the trial judge determined the award of support was reasonable.

It is not necessary to show changed circumstances when a former husband requests reconsideration of the appropriate amount of spousal support if no evidence was introduced at the original trial about the husband's ability to pay support. There would be no original condition established; therefore, it would be impossible ever to establish changed conditions. See Witt v. Witt, 271 S.C. 541, 248 S.E.2d 494 (1978).

2. Repayment of Temporary Support May Be Required if Adultery is Proven Later

A spouse may be required to repay spousal support awarded at a pendente lite hearing if a finding of adultery is made at a subsequent hearing. When a person is seeking pendente lite spousal support, the other spouse should have an opportunity to present evidence of adultery or other reasons why the request should be denied. In Watson v. Watson, 291 S.C. 13, 351 S.E.2d 883 (Ct. App. 1986), the wife was awarded pendente lite alimony. The family court refused to consider the husband's evidence of adultery. At the final hearing on the merits, the husband was granted a divorce on the ground of adultery. The Court of Appeals wrote: "We hold it was error under the circumstances of this case for the trial judge to preclude the husband from attempting to prove that the wife was an adulterous spouse, as contemplated by the statute, and was not entitled to temporary alimony." Watson at 23, 351 S.E.2d at 889. This was further explained in a footnote:

We recognize that time constraints may preclude the taking of testimony in every case where adultery is denied by the offending spouse. However, where there has been a prima facie showing of adultery through testimony or affidavits, it is incumbent upon the spouse charged with adultery to present a prima facie showing that he or she did not commit the alleged adulterous acts. At a minimum, a trial judge must in such situations provide for reimbursement to the payor spouse if adultery is proven at the merits hearing.

Watson at 23 n.4, 351 S.E.2d at 889-890 n.4. The case was remanded with instructions to reduce the wife's equitable distribution by the amount of alimony paid by the husband. See also Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct. App. 1998) (requiring wife to reimburse temporary alimony paid by the husband upon finding that she committed adultery).

This has potentially significant consequences for a spouse who is awarded pendente lite or permanent separate support and maintenance, but who might not be entitled to it. Such a spouse may be required to repay the entire amount of support that was paid between the time of a temporary hearing on a separate support and maintenance action and the final decision on a divorce petition. One way of protecting a client against this risk is to be sure that a finding on the merits of the spouse's entitlement is made by the trial judge at the merits hearing on the...