From Casetext: Smarter Legal Research

Belue v. Belue

Supreme Court of South Carolina
Mar 10, 1981
276 S.E.2d 295 (S.C. 1981)

Summary

In Belue v. Belue, 276 S.C. 120, 276 S.E.2d 295 (1981), we dismissed an appeal from a family court order where the appellant was not present at the hearing below.

Summary of this case from Winesett v. Winesett

Opinion

21407

March 10, 1981.

James Francis Fraley, Jr. and J. Roger Poole, both of Fraley, McChesney Poole, Spartanburg, for appellant. William E. Durant, Jr., Sumter, for respondent.


March 10, 1981.


This appeal is from a family court order granting respondent a divorce a vinculo matrimonii on the ground of appellant's habitual drunkenness. The other further grants respondent alimony, the payment of her attorney's fees by appellant and title in the marital home and car she now uses.

Appellant contends that the court erred in granting respondent alimony and sole title in the marital home and car. It is to be noted, however, that neither appellant nor his attorney was present at the final divorce hearing. Since no appeal lies from a default judgment in the absence of statutory provision or radical defect in the judgment, Gadsden v. Home Fertilizer and Chemical Co., 89 S.C. 483, 72 S.E. 15 (1911); Odom v. Burch, 52 S.C. 305, 29 S.E. 726 (1897), a defendant is estopped from thereafter challenging the judgment and is not entitled to take further steps in the cause affecting the plaintiff's cause of action, except to attempt to set aside the judgment. Morse v. Morse, 67 A.D.2d 750, 412 N.Y.S.2d 220 (1979); see also, Heathman v. Vant, 172 Cal.App.2d 639, 343 P.2d 104 (1959); 4 C.J.S. Appeal and Error, § 155 (1957). Appellant's proper remedy would therefore either be to attempt to have the judgment set aside pursuant to Section 15-27-130, S.C. Code (1976) or to attempt modification on the basis of change of condition of those parts of the family court order which are variable. See Witt v. Witt, 271 S.C. 541, 248 S.E.2d 494 (1978). This appeal is therefore dismissed.

LEWIS, C.J., and NESS, GREGORY and HARWELL, JJ., concur.

LITTLEJOHN, J., concurs in result only.


Summaries of

Belue v. Belue

Supreme Court of South Carolina
Mar 10, 1981
276 S.E.2d 295 (S.C. 1981)

In Belue v. Belue, 276 S.C. 120, 276 S.E.2d 295 (1981), we dismissed an appeal from a family court order where the appellant was not present at the hearing below.

Summary of this case from Winesett v. Winesett
Case details for

Belue v. Belue

Case Details

Full title:Mirielle T. BELUE, Respondent, v. Richard O. BELUE, Appellant

Court:Supreme Court of South Carolina

Date published: Mar 10, 1981

Citations

276 S.E.2d 295 (S.C. 1981)
276 S.E.2d 295

Citing Cases

Winesett v. Winesett

Because the order was entered against appellant by default, we dismiss the appeal as improper. In Belue v.…

Hirsch v. National Van Lines, Inc.

The general rule is that there is no appeal from a default judgment, although exceptions are recognized where…