Court of Appeals affirms dismissal of divorce case in which husband did not meet South Carolina residency requirement

Posted Wednesday, January 12th, 2022 by Gregory Forman
Filed under Divorce and Marriage, Jurisdiction, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

n.b. On May 4, 2022, the Court of Appeals issued a refiled opinion making a minor addition on the attorney fee award issue: Refiled Hayduk Opinion Makes Small Addition On Attorney Fee Issue

The January 12, 2022, Court of Appeals opinion in Hayduk v. Hayduk affirmed the family court’s dismissal of Husband’s divorce action, finding that Husband failed to meet the one-year residency requirement of S.C. Code § 20-3-30.

In Hayduk, in June 2017, Husband, alleging he was a resident of Greenville, South Carolina, filed for divorce on grounds of adultery and sought separate support and maintenance, child support, child custody, and visitation. Wife, a North Carolina resident, was served with the action in South Carolina. When Wife failed to answer the complaint, Husband filed an affidavit of default. Wife then filed a motion to dismiss for lack of personal jurisdiction.

After a hearing the family court found Husband failed to meet the residency requirements for divorce, characterizing it as a lack of personal jurisdiction. It further found South Carolina lacked jurisdiction over the children under the UCCJEA [an issue Husband did not appeal]. The family court found Wife was entitled to attorney’s fees and costs in the requested amount of $7,241.04. After his motion for reconsideration was denied, Husband appealed.

According to the Court of Appeals, the lower court confused personal jurisdiction and subject matter jurisdiction. In Burnham v. Superior Court of California, County of Marin, 495 U.S. 604 (1990), the United States Supreme Court held that in-state service was, by itself, sufficient to establish personal jurisdiction. Since Wife was served in South Carolina, there was personal jurisdiction over her. Husband argued that in only challenging personal jurisdiction, Wife waived any argument that Husband lacked residency to pursue divorce in South Carolina. However, the Court of Appeals treated the issue as one of subject matter jurisdiction, which can be raised at any time. The Court of Appeals affirmed that the case was properly dismissed as Husband failed to prove he was a South Carolina resident for one year prior to filing.

Husband argued he was a South Carolina resident because he always intended to reside in a South Carolina residence owned by his parents. However, after the parties’ June 2011, marriage, Husband only physically resided in South Carolina from December 2014 through June 2015. He was active in North Carolina politics from 2012 through 2016. He filed a cancellation of his North Carolina voter registration in May 2017, stating, “I no longer live in North Carolina.”

There is case law holding that “temporary absence from one’s domiciliary state solely because of government work or employment does not effect a change of domicile within the meaning of the divorce laws, in the absence of clear proof of an intent to abandon the old domicile and acquire a new one.” Gasque v. Gasque, 246 S.C. 423, 427, 143 S.E.2d 811, 812 (1965). Husband argued his military service and work as an airline pilot explained his absence from South Carolina. However the Court of Appeals noted that Husband frequently resided in North Carolina (where Wife primarily resided) while neither his work nor his military service required him to reside there. Finally, the Court of Appeals noted the family court found Wife more credible than Husband on the issue of his residency, citing Husband’s argumentative and evasive cross-examination.

Reading the opinion, one sees very little evidence that Husband considered South Carolina his residence in the 2011-2016 time period. This does not appear to have been a close or difficult case.

The Court of Appeals further affirmed the fee award. It refused to address Husband’s argument that a party in default could not be awarded fees as Husband did not raise that issue in the lower court. It further held that the family court could award fees to Wife despite her not filing a financial declaration, as there was sufficient evidence in the record on her inability to pay her own fees. Finally, in finding Wife’s fee claim to be reasonable, the Court of Appeals noted Husband’s claimed fees were almost $5,000 more than Wife’s. I often raise that issue if my fee claim is lower than my opposing counsel’s, but I don’t recall the appellate courts noting one party’s lower fee as a basis for finding reasonableness. Hayduk confirms this is an acceptable argument.

One assumes Husband attempted to obtain South Carolina jurisdiction over the divorce due to South Carolina’s unique adultery bar to alimony. It does not appear he had much evidence that he resided in South Carolina for a year prior to filing.

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