I’ve avoided blogging about the June 12, 2013 Supreme Court opinion in Ware v. Ware, 404 S.C. 1, 743 S.E.2d 817 (2013), until remittitur issued, not wanting to jeopardize a victory that’s taken over five years to achieve. What’s seemed blindingly obvious to me–that once Ms. Ware chose to enter a special appearance and challenge jurisdiction in Alabama she was bound by Alabama’s determination–was anything but obvious to the family court and the Court of Appeals. Even now, I’m relieved to have won and am surprised that the Supreme Court’s reversal was unanimous.
Ware turned on the application of the United States’ Constitution’s full faith and credit clause, which requires states to honor the judgments of sister states. Here Husband filed a divorce action in Alabama and served it on Wife in South Carolina. Wife then hired an attorney, who filed an entry of special appearance in Alabama, challenging both personal and subject matter jurisdiction. Wife also filed and served a South Carolina separate maintenance action.
The Alabama court, in a poorly reasoned order, denied Wife’s motion to dismiss because Husband was an Alabama resident–this analysis addressed subject matter but not personal jurisdiction. Wife’s Alabama attorney moved for reconsideration and then withdrew from the case. Both the Alabama and South Carolina cases proceeded to trial with only Husband appearing at the Alabama trial and only Wife appearing at the South Carolina trial.
Not unexpectedly, both parties did very well at the trial where only they appeared. The Alabama order gave didn’t award Wife any of Husband’s military retirement and was silent on alimony [under Alabama law, failure to obtain or reserve alimony as part of divorce decree precludes the future award of alimony]. The South Carolina order awarded Wife alimony, attorney’s fees, and a portion of Husband’s military retirement. Wife failed to appeal the Alabama orders. When DFAS began withholding Husband’s military retirement pursuant to the South Carolina orders he contacted me. We filed a Rule 60 motion asking the South Carolina family court to vacate its orders.
In Durfee v. Duke, 375 U.S. 106 (1963), the United States Supreme Court interpreted the Full Faith and Credit clause in relation to challenges to personal jurisdiction. Duke held that if personal jurisdiction has been fully and fairly litigated in the issuing state, a defendant cannot contest the validity of the judgment in other states. “[A] judgment is entitled to full faith and credit–even as to questions of jurisdiction–when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” Id. at 111. Basically Duke allows a non-resident defendant to chose the forum in which to challenge personal jurisdiction but, once the defendant has chosen the forum and obtained a ruling on the challenge, that defendant is bound by that forum’s ruling.
We argued that because Wife had challenged personal jurisdiction in Alabama, the Alabama order was entitled to full faith and credit. Therefore she could not challenge personal jurisdiction in South Carolina, and that the Alabama final order had priority over the South Carolina final order.
Both the family court and the Court of Appeals rejected this argument. They both found that by only entering a special appearance in Alabama and withdrawing before trial, Wife had not “fully and fairly litigated” the issue of personal jurisdiction. They then determined that, because Alabama did not have personal jurisdiction over Wife, the Alabama order wasn’t entitled to full faith and credit.
Ruling–as the family court and Court of Appeals did–that a defendant could provisionally challenge personal jurisdiction in the issuing state, withdraw from the case if he or she received an adverse ruling, and then challenge personal jurisdiction in the home state because he or she hadn’t “fully” litigated personal jurisdiction vitiated the rationale of Duke by allowing such defendants two chances to challenge personal jurisdiction. Further, no other state or federal court had adopted the interpretation of fully and fairly litigated adopted by the lower courts, while numerous state and federal courts had determined a special appearance operates as fully and fairly litigating personal jurisdiction.
In its opinion, the South Carolina Supreme Court, reversed the Court of Appeals and ordered the family court to vacate its final order. After concluding that Alabama did not have personal jurisdiction over Wife, the Supreme Court found that South Carolina was still required to give the Alabama order res judicata effect:
Husband argues that Wife, by agreeing to make a limited appearance to litigate the issue of personal jurisdiction in the Alabama court, was thereafter bound by that court’s ruling, right or wrong, and she should have appealed any erroneous ruling. Since Wife had the opportunity to fully and fairly litigate the issue, she was not denied due process and the Alabama court’s ruling is given res judicata effect in that state. Thus, the Alabama order should be afforded full faith and credit. Husband contends Wife could not challenge personal jurisdiction in Alabama, walk away after the trial court’s ruling, and then, in effect, reassert the issue in the South Carolina court.
We are constrained to agree with Husband. If Wife had made no appearance in Alabama, it is clear that court would have been without jurisdiction over any issue other than the parties’ divorce.
Here, however, Wife did present the jurisdictional issue to the Alabama court by virtue of her special appearance and representation by counsel. However, Wife failed to proceed on the merits. The Supreme Court of Alabama has specifically held: “It is clear under Alabama’s Rules of Civil Procedure that when a defendant challenges the court’s personal jurisdiction and the trial court overrules the challenge, the issue of personal jurisdiction is preserved for appeal. However, the defendant must proceed with the case on the merits.” Leventhal v. Harrelson, 723 So. 2d 566, 570 (Ala. 1998).
Emphasis in original; some citations omitted.
The Supreme Court further noted:
In the current matter, Wife should have either made no appearance at all or, having chosen to make a special appearance, she should have retained her Alabama counsel to pursue an appeal as to the issue of personal jurisdiction. By attempting, in essence, to raise the issue piecemeal in both the Alabama and South Carolina courts, she has adversely impacted her rights.
[W]e reluctantly conclude Wife was not entitled to bring the South Carolina action for an equitable division, alimony, and attorney’s fees. Wife entered a notice of limited appearance in Alabama through counsel solely to litigate the issue of personal jurisdiction in Alabama and having done that, she is bound by the Alabama forum’s decision in that regard and its determination is res judicata. Wife did not pursue her challenge to personal jurisdiction past the trial court level, but under Alabama law a nonresident may appeal the court’s erroneous finding of personal jurisdiction. Thus, she had the opportunity to contest personal jurisdiction and abandoned that challenge in the Alabama courts. The inquiry in assessing whether an order is entitled to full faith and credit is whether the defendant had a full and fair opportunity to litigate the issue of jurisdiction. By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, a defendant agrees to abide by that court’s determination on that issue and it will be given res judicata effect in further proceedings.
Since Alabama would have given its order res judicata effect, it was entitled to full faith and credit. Thus, we conclude Husband’s Rule 60(b) motion to vacate the South Carolina orders should have been granted, contrary to the determination of the family court and the Court of Appeals. Consequently, we reverse and remand this case to the family court for entry of an order in accordance with this decision. Husband’s request for attorney’s fees may be considered at that time.
The Supreme Court’s reluctance to rule for Husband was quite understandable. The Alabama order is very unfavorable to Wife: she receives no alimony and receives none of Husband’s military retirement. Further, there wasn’t personal jurisdiction over her in Alabama–I never even tried to argue that there was. That said, once Wife challenged jurisdiction in Alabama, South Carolina should never have taken jurisdiction until and unless Alabama declined it. Admittedly the Alabama judge issued an ill-considered decision on personal jurisdiction but lawyers and litigants are expected to appeal, and not ignore, ill-considered decisions.
Clients occasionally lose cases they should have won simply because the court made a mistake. However clients can’t really know whether they lost because the court made a mistake or because their lawyer doesn’t know the law. I’ve always been fearful that sympathy for Wife would overcome the seemingly irrefutable legal argument. When two of our five Justices asked me at oral argument whether the Alabama order was the product of “home cooking,” I feared that they were probing for a way to rule in Wife’s favor for a third time.
For five years I’ve been telling Mr. Ware that I expected to ultimately prevail, while losing at every previous level. I’m grateful he never lost faith in what seemed obvious to me. If he’d lost faith he’d be paying alimony and retirement for life and I’d have lost a case I was convinced I should have won.