Morris v. Morris , 91 N.C. App. 432 ( 1988 )

371 S.E.2d 756 (1988)

Mary Grey Holland MORRIS
v.
Glenwood Eugene MORRIS.

No. 8811DC204.

Court of Appeals of North Carolina.

September 20, 1988.

Bain & Marshall by Elaine F. Marshall, Lillington, for plaintiff-appellant.

W. Glenn Johnson, Lillington, for defendant-appellee.

SMITH, Judge.

Plaintiff assigns error to the order dismissing her complaint and to the sufficiency of the evidence, findings of fact and conclusions of law to support the order. We hold that the trial court erred by dismissing the claim and reverse.

The district court concluded that it did "not have jurisdiction over the issues of custody and support of the minor children born to the marriage of the plaintiff and the defendant, and jurisdiction in this matter should be declined ... as a matter of law." Plaintiff contends the district court erred by dismissing her complaint. We agree.

We note that plaintiff's petition contains no request regarding custody or modification of the custody order. Therefore, G.S. Chap. 50A has no application.

Our legislature has provided for modification of foreign child support orders. G.S. 50-13.7(b). This statute provides in part:

When an order for support of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support which modifies or supersedes such order for support, subject to the limitations of G.S. 50-13.10.

Defendant contends, in part, that the use of the word "may" in this statute authorizes the trial court in the exercise of its discretion to refuse to exercise its jurisdiction. Defendant misconstrues the statute. We interpret the word "may" to authorize the trial judge to enter an order of modification upon a showing of changed circumstances.

To be entitled to modification under this statute, plaintiff must show both jurisdiction and changed circumstances. Hopkins v. Hopkins, 8 N.C.App. 162, 174 S.E.2d 103 (1970). Both subject matter jurisdiction and personal jurisdiction are present in this case. The statute itself gives North Carolina courts subject matter jurisdiction to modify child support orders entered by another state. G.S. 50-13.7(b).

'It is true that one State cannot directly modify the provisions of a divorce decree of a sister State relating to child support. However, the State, upon gaining jurisdiction of the husband in personam, may enter a new order for child support which increases the amount that would have been payable prospectively under the divorce decree where the divorce court has the power to do so; and the State may declare that in this respect the decree of the divorce court shall be superseded by the new order. The full faith and credit clause does not forbid this result; the foreign decree has no constitutional claim to a greater effect outside the State than it has within the State.'

Thomas v. Thomas, 248 N.C. 269, 272, 103 S.E.2d 371, 373 (1958), quoting 17A Am. Jur., Divorce and Separation, section 982, page 165. Personal service in North Carolina upon the nonresident defendant confers personal jurisdiction over him. Jenkins v. Jenkins, 89 N.C.App. 705, 367 S.E.2d 4 (1988). Plaintiff has thus shown jurisdiction and may invoke G.S. 50-13.7(b).

Article IV, Section 1 of the United States Constitution requires that the 13 April 1987 Virginia order denying modification of the original child support order be given full faith and credit in North Carolina subject to modification under G.S. 50-13.7(b). Thomas v. Thomas, supra. Thus, whether plaintiff is entitled to relief under the statute depends on her ability to show changed circumstances since the 13 April 1987 Virginia order was entered; that issue is not before this court and must be considered by the trial court on remand.

Having determined that the trial court had jurisdiction over the subject matter and the parties, the order of the district court is reversed.

Reversed and remanded.

EAGLES and ORR, JJ., concur.