Theisen v. Theisen

716 S.E.2d 271 (2011)

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Nature of the Case

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Facts

W and Clifford (H) were married in 1980. W was a homemaker for the vast majority of the marriage. H currently receives dividend payments from his interest in his family's business as well as some compensation for serving as a director of the business, but the current economic crisis placed a strain on the parties' other financial resources. H and W owned three properties: the marital home, which is in W's name, and two rental properties, both of which are in H's name. W has filed for divorce1 on two previous occasions, at least one of which was premised on the fault ground of physical cruelty. H and W reconciled following the first petition, and the second was dismissed because the proceedings were not concluded within one year from the date of filing. W has filed this action for separate maintenance. W complained of H's unilateral control and disposal of marital assets, creation, and non-payment of debts in W's name, and present emotional and verbal abuse. W sought maintenance and support; custody of the minor children; child support; spousal support; sole and exclusive use and possession of the marital home; sole and exclusive use and possession of one of the parties' vehicles; equitable division of marital assets and debts; and attorney's fees. H counterclaimed for equitable distribution of the marital assets and debts as well as attorney's fees. He contends that the parties' difficulties were the result of their recent financial situation, not a course of conduct designed to denigrate W. H moved to dismiss W's complaint. The court found it 'has the jurisdiction to order separate support and maintenance, [but it] does not have the authority to do so when the parties are living together.' W’s complaint was dismissed, and W appealed.