Southern v. Southern , 43 N.C. App. 159 ( 1979 )

258 S.E.2d 422 (1979) 43 N.C. App. 159

Joan Ann SOUTHERN
v.
William Monroe SOUTHERN.

No. 7821DC1162.

Court of Appeals of North Carolina.

October 2, 1979.

Willie C. Dawson, Winston-Salem, for defendant-appellant.

No counsel contra.

PARKER, Judge.

In his first assignment of error, defendant contends that the court improperly denied his motion to dismiss under G.S. 1A-1, Rule 12(b)(6). He relies principally on the claim that plaintiff's failure to verify her complaint deprived the court of subject matter jurisdiction. Although the Order and Judgment of the trial court recites that plaintiff did verify the complaint prior to judgment, there is no evidence of such a verification in the record.

Prior to 1967, G.S. § 50-16 provided in pertinent part:

"In actions [for alimony without divorce] brought under this section, the wife shall not be required to file the affidavit provided in § 50-8, but shall verify her complaint as prescribed in the case of ordinary civil actions."

By virtue of this statute a court was without subject matter jurisdiction to entertain an action for alimony in which the complaint was not verified. Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596 (1946). However, former G.S. 50-16 was repealed by 1967 Session Laws, ch. 1152, s. 1. Verification of a complaint in an action for alimony without divorce is no longer required. 2 Lee N.C. Family Law § 143 (1976 Supp.). Therefore, defendant's first assignment of error is without merit.

Defendant next assigns error to the trial court's grant of summary judgment to plaintiff as to arrearages due under the English decree. The issue presented is whether the district court in Forsyth County properly gave effect to the judgment of a foreign country entered against a North Carolina resident based on service in North Carolina by uncertified and unregistered mail. Although the Full Faith and Credit Clause of the U. S. Constitution does not apply to decrees of foreign nations, certain foreign decrees may be given effect in our courts under the principle of the comity of nations:

"Comity", in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens. . . .

Hilton v. Guyot, 159 U.S. 113, 163-164, 16 S. Ct. 139, 143, 40 L. Ed. 95, 108 (1895). However, our courts may enforce a judgment in personam only where it was rendered by a foreign court having jurisdiction of the cause and of the parties. Hilton, supra. The Matrimonial Causes Act of England, 1973, §§ 22 and 23, grants subject matter jurisdiction to the English courts to resolve issues of ancillary financial relief in divorce actions. Under Rule 14(1) of the Matrimonial Causes Rules, service of process in such actions may be made by personal service or by mail. Although the English judgment rendered against defendant may be enforceable in the English courts under English standards of jurisdiction, the courts of this state may not enforce it unless there is a showing that the exercise of jurisdiction over defendant by the English court satisfied our concepts of due process. Bank of Montreal v. Kough, 430 F. Supp. 1243 (N.D.Cal.1977); Cherun v. Frishman, 236 F. Supp. 292 (DDC 1964); Ross v. Ostrander, 192 Misc. 140, 79 N.Y.S.2d 706 (1948). See also Wurfel, "Recognition of Foreign Judgments," 50 N.C.L.Rev. 21, 69 (1971); von Mehren, "Enforcement of Foreign Judgments in the U. S.," 17 Virginia Journal of International Law 401 (1977).

Under the law of our state, judgments for alimony and child support are in personam. Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977); Fleek v. Fleek, 270 N.C. 736, 155 S.E.2d 290 (1967). The due process standard governing the exercise of in personam jurisdiction was established by the U. S. Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945):

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ``traditional notions of fair play and substantial justice.' (citations omitted).

Recently, in Kulko v. California Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132, reh. den. 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150 (1978), the Supreme Court addressed the question of constitutional limitations on the judicial exercise of personal jurisdiction over nonresident defendants in actions for child support. In that case, a California resident brought suit in the courts of that state against her divorced husband, a New York resident, seeking an increase in child support. Defendant moved to quash service, contending that the California court lacked personal jurisdiction over him. The motion was denied. On appeal from a decision of the California Supreme Court holding that defendant had rendered himself subject to the jurisdiction of the California courts, the U. S. Supreme Court reversed. Applying the standard of International Shoe, the Court held that defendant's acquiescence in his daughter's living in California was clearly an insufficient basis under the due process clause of the fourteenth amendment for the exercise of in personam jurisdiction. The Court went on to state:

"We agree that where two New York domiciliaries, for reasons of convenience, marry in the State of California and thereafter spend their entire married life in New York, the fact of their California marriage by itself cannot support a California court's exercise of jurisdiction over a spouse who remains a New York resident in an action relating to child support." 436 U.S. at 93, 98 S.Ct. at 1697, 56 L. Ed. 2d at 142.

In the present case, defendant, an American citizen, married plaintiff in London, England. However, there is no indication in the record that England was the parties' matrimonial domicile or that there were any contacts other than the marriage itself sufficient to justify imposing upon defendant the burden of defending suit in England. See Kulko, supra at 91, 98 S. Ct. at 1697, 56 L.Ed.2d at 141. In the absence of such contacts, the English court lacked jurisdiction to render a judgment in personam against defendant which could be enforced in our courts, and the district court in Forsyth County erred in granting summary judgment to plaintiff as to arrearages due under the English decree.

The award to plaintiff of Judgment for $14,058.56 in arrearages due under the English decree is vacated, and the cause is remanded to the district court in Forsyth County for further proceedings to determine what payments, if any, defendant should be required to make for future support.

Vacated and remanded.

MORRIS, C. J., and HARRY C. MARTIN, J., concur.