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April 3, 1957


The opinion of the court was delivered by: Moss, Justice.

April 3, 1957.

The sole question presented by the appellant is whether a husband can be held liable for attorney fees of counsel employed by the wife in a suit for separate maintenance and support, where the husband and wife became reconciled prior to the completion of the action.

It appears that Vaudie Harris Hyder and Loyd C. Hyder were married on May 30, 1931, and lived together as husband and wife until they finally separated on April 8, 1956. The wife instituted an action against the husband for separate maintenance, support and attorney fees pendente lite and permanent. The action was instituted on May 4, 1956. Judge C. Bruce Littlejohn, the Resident Judge of the Seventh Circuit, did on May 16, 1956, award separate maintenance in the sum of $20.00 per week, and the sum of $100.00 as a fee for the wife's attorney, pendente lite. Thereafter, the petition of the wife was amended to ask not only for separate maintenance and support but also for a division of the property, title to which was held by the husband. This amended petition was served on May 22, 1956. On June 15, 1956, the husband and wife became reconciled, and the wife went back to live with the husband, and notified George S. DePass, her attorney, "to drop all further legal action."

As is above stated, this is an action for a divorce a mensa et thoro, and it is provided in Section 20-113.1 of the 1952 Code of Laws of South Carolina, that:

"In all action for divorce a mensa et thoro, allowances of alimony and suit money and allowances of alimony and suit money pendente lite shall be made according to the principles controlling such allowance in actions for divorce a vinculo matrimonii."

It is interesting to note the history of divorce a mensa et thoro. It is set forth in 2 Bouv. Law Dict., Rawle's Third Revision, p. 3044, as follows:

"By the ecclesiastical or canon law of England, which had exclusive jurisdiction over marriage and divorce, marriage was regarded as a sacrament and indissoluble. This doctrine originated with the church of Rome, and became established in England. After the reformation it ceased to be the doctrine of the church of England, yet the law remained unchanged until the statute of 20 & 21 Vict.(1857) c. 85, and amendments; Bish.Marr & D. para. 65, n., 225; 1 Bish. M. Div. & S. para. 1377. Hence a valid marriage could not be dissolved in England except by what has been termed the omnipotent power of parliament.

"This gave rise, in the ecclesiastical courts, to the practice of granting divorces from bed and board, as they used to be called, or judicial separation, as they are called in the statute 20 & 21 Vict. c. 85, para. 7; Bish. Marr. & D. para. 65, n., 225; 1 Bish. M.D. & S. para. 1377. From England this practice was introduced into this country; and though in some of the states it has entirely given way to the divorce a vinculo matrimonii, in others it is still in use, being generally granted for causes which are not sufficient to authorize the latter."

It is well at this point to declare the public policy of this State with reference to marriage and divorce. The State is vitally interested in the continuance of, rather than the dissolution of, a marriage. Divorce is not favored or encouraged but is discouraged.

In Fogel v. McDonald, 159 S.C. 506, 157 S.E. 830, 833, where an action was brought for the purpose of having an alleged marriage declared void, this Court said:

"It is elementary that in proceedings of this character the state is a silent but not by any means an inactive third party. The marriage status being a matter of the deepest public interest and concern, the trial judge has the power, and it is his duty, to see that such a status is not disturbed except under circumstances and for causes fully sanctioned by law. In this class of cases, probably more than all others, the state exercises a jealous and exclusive dominion."

In the case of Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330, 333, 15 A.L.R.2d 163, a wife sued her husband for divorce. The lower Court denied the divorce and upon an appeal to this Court, Mr. Justice Fishburne, now retired, but who was then a distinguished member of this Court, reviewed the historical background of divorce in this State and declared the public policy of this State relating to marriage in the following language:

"It is generally recognized that the public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation. This policy finds expression in probably every state in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight and trivial causes, or in any case except on a full and satisfactory proof of such facts as the legislature has declared to be cause for divorce. Such provisions find their justification only in this well-recognized interest of the state in the permanency of the marriage relation. 17 Am. Jur., Sec. 12, Page 154. As said in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 729, 31 L.Ed. 654: `Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various ...

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