Morris v. Morris , 295 S.C. 37 ( 1988 )

Ness, Chief Justice,

dissenting:

I respectfully dissent from the part of the majority opinion dealing with the effect of Wife’s adultery on Husband’s support obligation and the family court’s jurisdiction to terminate Wife’s alimony.

South Carolina Code Ann. § 20-3-130 (1985) provides in part, “No alimony shall be granted an adulterous spouse.” In my opinion, a spouse’s entitlement to support ceases on the day he or she commits adultery. Cf. S. C. Code Ann. § 20-3-150 (1985) (“support shall forthwith cease” upon remarriage.) I would therefore hold that Husband is entitled to return of all alimony paid since August, when Wife committed adultery, rather than that paid since December, when the order was entered.

The majority opinion upholds the family court’s finding that it lacked jurisdiction to terminate Husband’s alimony obligation because of the pending appeal in Case 1. In my opinion, the jurisdictional discussion is irrelevant under the facts of this case. I agree that the appeal of Case 1, in which both parties disputed the duration of alimony, deprived the family court of jurisdiction to entertain an action to modify the support period. Supreme Court Rule 18, § 3. Wife’s adulterous conduct, however, terminated her right to receive alimony as a matter of law. Husband was entitled to stop paying support as of the date Wife became an adulteress without the necessity of a court order or further proceedings. Husband would be entitled to assert adultery as a defense to Wife’s action for nonsupport. Further, if a paying spouse is unsure of his ability to establish adultery in court, he may bring a declaratory judgment action to have the issue determined.

I would reduce Wife’s equitable interest by $4800, the amount of alimony paid to her by Husband since the adultery occurred.