"Under South Carolina law, the Court of Common Pleas has jurisdiction in all cases of real and personal estates held in joint tenancy or in common to make partition in kind or by allotment." Eichor v. Eichor, 290 S.C. 484, 487, 351 S.E.2d 353, 354 (Ct. App. 1986). "[P]roperty held in joint tenancy is subject to partition."
"An action for partition of undivided interests is not marital litigation, and thus is not within the jurisdiction of the family court." Eichor v. Eichor, 290 S.C. 484, 351 S.E.2d 353 (1986). Husband's subsequent action filed in family court seeking equitable distribution and separate maintenance and support raises the question whether the latter action divested the circuit court of subject matter jurisdiction over the partition action.
Choice of Laws The family court, citing Eichor v. Eichor, 290 S.C. 484, 351 S.E.2d 353 (Ct.App.1986), determined that South Carolina law was applicable to this action and we agree. In Eichor, the Court of Appeals relied on the language of the federal statute which allowed for the division of military retirement as well as the variance in public policy between Texas and South Carolina.
Later cases from South Carolina make it clear that Sims stands merely for the proposition that South Carolina statutes do "not give a former spouse the right to institute a separate action in family court where the relief requested is not incidental to the divorce decree." Eichor v. Eichor, 351 S.E.2d 353, 354 (S.C. Ct. App. 1986) (citing Sims) (emphasis added); see Brown v. Brown, 368 S.E.2d 475, 477 (S.C. Ct. App. 1988) (citing Sims, court held that "family court lacks subject matter jurisdiction to settle a dispute between spouses involving their respective interests in property, unless the determination is incident to an action requesting an alteration of their marital status") (emphasis added); Roberts v. Roberts, 361 S.E.2d 341, 342 (S.C. Ct. App. 1987) (because family court's decree approving settlement agreement is "now final," subject matter jurisdiction regarding agreement, including interpretation of its terms, rests with circuit rather than family court). In June 1986, before Sims was decided, the following South Carolina statutory provision became effective: "The family courts of this State have subject matter jurisdiction over all contracts relating to property which is involved in a proceeding under this article and over the construction and enforcement of those contracts."
Separate actions to determine property rights will be considered "other marital litigation" under Section 20-7-420(2) — thereby vesting exclusive jurisdiction in the family court — if the relief sought is incidental to the decree of divorce. See Sims v. Sims, 290 S.C. 190, 348 S.E.2d 835 (1986); Zwerling v. Zwerling, 273 S.C. 292, 255 S.E.2d 850 (1979); Brown v. BrownS, 295 S.C. 354, 368 S.E.2d 475 (Ct. App. 1988); Eichor v. Eichor, 290 S.C. 484, 351, S.E.2d 353 (Ct.App. 1986) The record reflects that at the time the parties were divorced, military retirement benefits were not deemed community property and not addressed in the order granting divorce.
Where, as here, the serviceman moved to another state long before commencement of the action at issue, the courts have unanimously held that Section 1408(c)(4) precluded personal jurisdiction. Tarvin v. Tarvin, 187 Cal.App.3d 56, 61, 232 Cal.Rptr. 13, 16 (1986); Ober v. Bounds, 528 So.2d 247, 249-50 (La. App. 1988); Mortenson v. Mortenson, 409 N.W.2d 20, 23 (Minn.App. 1987); Messner v. Eighth Judicial District Court, 766 P.2d 1320, 1321 (Nev. 1988); Sparks v. Caldwell, 104 N.M. 475, 723 P.2d 244 (1986); Eichor v. Eichor, 290 S.C. 484, 351 S.E.2d 353, 355 (1986); Barrett v. Barrett, 715 S.W.2d 110 (Tex. App. 1986); Dunn v. Dunn, 708 S.W.2d 20, 22 (Tex. App. 1986); Kovacich v. Kovacich, 705 S.W.2d 281, 283 (Tex. App. 1986); Southern v. Glenn, 677 S.W.2d 576 (Tex. App. 1984). In Kovacich, the Texas Court of Appeals expressly held that personal jurisdiction within Section 1408(c)(4) refers to the domicile or residence of the former serviceman "at the time of the suit."
Although Wife does not specifically contest the family court's subject matter jurisdiction to modify the Final Order, we address this issue on appeal because "[l]ack of subject matter jurisdiction cannot be waived and should be taken notice of by [the appellate court] on its own motion." Eichor v. Eichor , 290 S.C. 484, 487, 351 S.E.2d 353, 355 (Ct. App. 1986). Generally, the family court has the authority to modify any order issued by the family court. S.C. Code Ann. § 63-3-530(A)(25) (2010) (stating the family court has exclusive jurisdiction to modify or vacate any order issued by the family court).
However, issues relating to subject matter jurisdiction may be raised at any time, cannot be waived even by consent, and should be taken notice of by this court on our own motion. See Johnson v. State, 319 S.C. 62, 459 S.E.2d 840 (1995); State v. Richburg, 304 S.C. 162, 403 S.E.2d 315 (1991); Statev. Gorie, 256 S.C. 539, 183 S.E.2d 334 (1971); Eichor v. Eichor, 290 S.C. 484, 351 S.E.2d 353 (Ct.App. 1986). Subject matter jurisdiction refers to the court's power to hear and determine cases of the general class to which the proceedings in question belong.
Moreover, the lack of subject matter jurisdiction is an issue which can be raised at any time, cannot be waived even by consent, and should be taken notice of by this Court on our own motion. State v. Richburg, 304 S.C. 162, 403 S.E.2d 315 (1991); State v. Gorie, 256 S.C. 539, 183 S.E.2d 334 (1971); Eichor v. Eichor, 290 S.C. 484, 351 S.E.2d 353 (Ct.App. 1986). Pursuant to the foregoing analysis, it is the judgment of this court that the adjudication based upon the repealed arson statute be vacated for lack of jurisdiction.
Military Retirement Benefits AsMarital Property Prior to the adoption of the Equitable Apportionment of Marital Property Act, this state held military retirement benefits were not subject to equitable distribution. Bugg v. Bugg, 277 S.C. 270, 286 S.E.2d 135 (1982); Carter v. Carter, 277 S.C. 277, 286 S.E.2d 139 (1982) (dicta); Brown v. Brown, 279 S.C. 116, 302 S.E.2d 860 (1983); Haynes v. Haynes, 279 S.C. 162, 303 S.E.2d 429 (1983); Eichor v. Eichor, 290 S.C. 484, 351 S.E.2d 353 (Ct. App. 1986). The legislature has now defined "marital property" to include all real and personal property acquired by the parties during the marriage and owned by them as of the date of filing or commencement of marital litigation, regardless of how legal title is held.