Boyles v. Boyles , 59 N.C. App. 389 ( 1982 )

Judge WEBB

dissenting.

I dissent from the majority because I do not believe that on this record we can hold there was not proper notice under the law of Florida. The record shows that two letters were sent by certified mail to an address in Pennsylvania. The defendant has not denied that this was his correct address. The Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida has ruled that notice was given in accordance with the law of Florida and I believe we should accept this ruling as to the law of Florida. The cases relied on by the majority are distinguishable. Casey v. Barker, 219 N.C. 465, 14 S.E. 2d 429 (1941) involved a question of service under Indiana law, not Florida law. Kosch v. Kosch, 113 So. 2d 547 (Fla. 1959) held that notice of a motion to modify alimony was sufficient if the party to be served actually received the notice by regular mail. The court in that case did not have before it the question in this case. Lendsay v. Cotton, 123 So. 2d 745 (Fla. Dist. Ct. App. 1960) dealt with service on a nonresident operator of a motor vehicle in the State of Florida. The Supreme Court of Florida said the statute allowing such service was in derogation of the common law and must be strictly construed. The service in this case was under another statute. After the Circuit Court in Florida has ruled that notice was properly given in this case, I do not believe we should overrule it.

I vote to affirm the judgment of the Superior Court.