Chen v. Zou , 244 N.C. App. 14 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-228
Filed: 17 November 2015
Mecklenburg County, No. 12-CVD-6197
WENBIN CHEN, Plaintiff,
v.
YALING ZOU, Defendant.
Appeal by Plaintiff from order entered 11 September 2014 by Judge David H.
Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 27
August 2015.
McIlveen Family Law Firm, by Theresa E. Viera and Sean F. McIlveen, for
Plaintiff-Appellant.
Bell and Bell Law Firm, P.C., by George C. Bell and Hannah R. Bell, for
Defendant-Appellee.
DILLON, Judge.
I. Background
In November 2006, Wenbin Chen (“Plaintiff”) and Yaling Zou (“Defendant”)
were married.
In March 2012, Plaintiff filed his complaint in this action seeking an absolute
divorce from Defendant, alleging that the parties had separated in August 2010 when
Defendant left the marital home and that Defendant had no subsequent contact with
Plaintiff. Plaintiff served Defendant by publication in the Charlotte Observer,
published in Mecklenburg County, North Carolina.
CHEN V. ZOU
Opinion of the Court
In June 2012, the trial court entered a judgment for absolute divorce (the
“Divorce Judgment”).
In January 2013, Defendant moved back into the marital home with Plaintiff
with no knowledge of the Divorce Judgment. Seven months later, the parties had an
altercation and Plaintiff called the police to eject Defendant from the home. At this
time, Plaintiff produced the Divorce Judgment and showed it to the police.
In November 2013, Defendant filed a Rule 60 motion to set aside the Divorce
Judgment. After a hearing on the motion, the trial court entered an order setting
aside the Divorce Judgment. In its order, the trial court found as fact that Plaintiff
and Defendant’s actual date of separation was in September 2011, that after the
separation the parties continued to communicate with each other via telephone and
text messaging, and that during the separation Defendant had made Plaintiff aware
that she was living in New York City. Based on its findings, the trial court concluded
that publication in the Charlotte Observer was insufficient under the requirements
of Rule 4. Accordingly, the trial court granted Defendant’s motion pursuant to Rule
60(b)(4) of our Rules of Civil Procedure, declaring the Divorce Judgment void.
Plaintiff appeals.
II. Standard of Review
A motion for relief under Rule 60(b)(4) is within the discretion of the trial court,
and our review “is [for] abuse of discretion.” Creasman v. Creasman, 152 N.C. App.
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119, 121-22, 566 S.E.2d 725, 727 (2002). See also Sink v. Easter, 288 N.C. 183, 198,
217 S.E.2d 532, 541 (1975).
III. Analysis
Plaintiff argues that the trial court erred in concluding that the Divorce
Judgment was void based on improper service of process. We disagree.
Rule 60(b)(4) allows the court to relieve a party from a judgment if “the
judgment is void.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(4). If a judgment is rendered
without an “essential element such as jurisdiction or proper service of process,” it is
void. Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 689, 567 S.E.2d 179, 184
(2002) (emphasis added); see also Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974).
If a judgment is void, it is a “legal nullity” which may be attacked at any time.
Freeman v. Freeman, 155 N.C. App. 603, 606, 573 S.E.2d 708, 711 (2002).
A. Timeliness of Motion
As a preliminary matter, Plaintiff contends that the trial court’s order must be
reversed because Defendant failed to file her motion within the time prescribed by
Rule 60(b).
Rule 60(b) provides six different reasons for which a trial court may grant relief
from a judgment, which are enumerated (1) through (6) in the Rule. The Rule
requires that any party seeking relief from a judgment file her motion “within a
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Opinion of the Court
reasonable time, and for reasons (1), (2) and (3) not more than one year after the
judgment[.]” N.C. Gen. Stat. § 1A-1, Rule 60(b) (2014).
Here, Defendant filed her motion some 17 months after the Divorce Judgment,
which would be too late if the relief sought was based on subsection (1), (2), or (3) of
Rule 60(b). The trial court, however, based its Rule 60(b) order on subsection (4) of
the Rule – which allows a trial court to give a party relief from a “void” judgment.
Plaintiff contends, though, that subsection (4) of Rule 60 is not the proper basis for
the trial court’s order because the Divorce Judgment was at most voidable, and not
void. Plaintiff contends that the proper basis for the order was, rather, subsection (3)
of Rule 60, which provides relief from judgments based on fraud or other misconduct
by a party. Accordingly, Plaintiff contends that the order must be reversed since
Defendant did not file her motion within one year of the Divorce Judgment as
required by the Rule. We disagree.
It is true that Defendant’s Rule 60(b) motion is based on her contention that
Plaintiff’s affidavit of service was “fraudulent,” which might suggest that the proper
basis of her motion was under subsection (3). However, we have expressly held that
there is a difference between a party misrepresenting to the trial court “of the length
of the parties’ separation in the divorce complaint and related inaccurate findings in
the judgment” and a party misrepresenting that his spouse was properly served with
process. Freeman, 155 N.C. App. at 606, 573 S.E.2d at 711. The former type of
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Opinion of the Court
misrepresentation renders the divorce judgment voidable, rather than void. Id. See
also Dunevant v. Dunevant, 142 N.C. App. 169, 174, 542 S.E.2d 242, 245 (2001)
(recognizing that a divorce decree “in all respects regular on [its face]” could not be
declared void, “especially [where] the court specifically found that ‘[d]efendant was
properly served’”); Stokely v. Stokely, 30 N.C. App. 351, 354, 227 S.E.2d 131, 133
(1976). On the other hand, a misrepresentation involving the actual service of process
goes to the trial court’s jurisdiction, and it is proper to attack any judgment rendered
in such case as a “void” judgment under subsection (4) of Rule 60(b). Freeman, 155
N.C. App. at 606, 573 S.E.2d at 711. Our Supreme Court has long recognized this
distinction. See Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593 (1932); Fowler v. Fowler,
190 N.C. 536, 130 S.E. 315 (1925).
Since subsection (4) of Rule 60(b) was the proper ground for Defendant’s motion
in this case, Defendant was not required to bring her motion within 12 months of the
entry of the Divorce Judgment. Rather, she merely had to bring her motion within a
“reasonable time.” Here, Defendant did file her motion within a reasonable time as
required by the Rule. Specifically, she filed her Rule 60(b)(4) motion shortly after
receiving actual knowledge from Plaintiff that he had obtained the Divorce
Judgment. See Freeman, 155 N.C. App. 603, 573 S.E.2d 708 (wife’s Rule 60(b)(4)
motion filed seventeen (17) years after her husband obtained a divorce judgment was
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Opinion of the Court
timely where she had only recently learned that her husband had forged her name
on an acceptance of service of process). Accordingly, this argument is without merit.
B. Service by Publication Was Defective
In this case, Plaintiff attempted service by publication. Service by publication
is in derogation of common law, and “statutes authorizing service of process by
publication are strictly construed . . . in determining whether service has been made
in conformity with the statute.” Dowd v. Johnson, ___ N.C. App. ___, ___, 760 S.E.2d
79, 83 (2014); Fountain v. Patrick, 44 N.C. App. 584, 586, 261 S.E.2d 514, 516 (1980).
In evaluating whether service by publication is proper, this Court must first
determine “whether the defendant was actually subject to service by publication –
meaning that plaintiff exercised due diligence as required by Rule 4(j1)” before
resorting to service by publication. Dowd, ___ N.C. App. at ___, 760 S.E.2d at 83. See
also N.C. Gen. Stat. § 1A-1, Rule 4(j1) (2014) (providing that a party may be served
by publication only if the party “cannot with due diligence be served by personal
delivery [or] registered or certified mail”). Due diligence requires a plaintiff to use
“all resources reasonably available to [him] in attempting to locate [a] defendant[].”
Jones v. Wallis, 211 N.C. App. 353, 357, 712 S.E.2d 180, 183 (2011). “[S]ervice of
process [of a divorce decree] by publication is void . . . if the information required for
personal service is within the plaintiff’s actual knowledge or with due diligence could
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be ascertained.” Thomas v. Thomas, 43 N.C. App. 638, 646, 260 S.E.2d 163, 169
(1979).
There is no “restrictive mandatory checklist for what constitutes due diligence
. . . [r]ather, a case by case analysis is more appropriate.” In re Clark, 76 N.C. App.
83, 87, 332 S.E.2d 196, 199 (1985). In the present case, the trial court made the
following detailed findings relevant to Plaintiff’s ability to ascertain the information
required for personal service:
[13.] Following the separation of the plaintiff and the
defendant they continued to communicate with each other
by telephone and text messages.
...
[14.] The defendant told the plaintiff in their
communications following their separation that she was in
New York City.
...
[26.] [N]o effort whatsoever was made to locate the
defendant in New York City.
...
[40.] The plaintiff . . . stated that he has heard from others
that the defendant was in New York City . . . .
These findings are supported by competent evidence in the record, including
screenshots of text messages exchanged by the parties and testimony of both Plaintiff
and Defendant in the trial court, and are thus conclusive on appeal. Thomas, 43 N.C.
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Opinion of the Court
App. at 646-47, 260 S.E.2d at 169. Although Plaintiff possessed contact information
for and remained in contact with Defendant throughout the filing and disposition of
the divorce proceedings, he failed to request her address for the purpose of serving
her with process.1
Based on the trial court’s findings, we agree that the trial court properly
concluded that Plaintiff failed to comply with the requirement of Rule 4(j1) to exercise
due diligence in attempting to locate Defendant. Specifically, he failed to make “[any]
effort whatsoever” to ascertain Defendant’s address in New York City. Plaintiff failed
to use Defendant’s contact information which he had in his possession. See Barclays
v. BECA, 116 N.C. App. 100, 103, 446 S.E.2d 886, 886 (1994) (“[A] reasonable and
diligent effort . . . [necessitates] employment of ‘reasonably ascertainable’
information.”) (emphasis added). Accordingly, service of process by publication was
improper.
Further, even assuming that Plaintiff did exercise due diligence, the findings
demonstrate that service by publication in Mecklenburg County was nevertheless
inadequate. Specifically, Rule 4(j1) requires that the publication be “circulated in an
1 See Modan v. Modan, 327 N.J. Super. 44, 742 A.2d 611 (2000). In Modan, the New Jersey
court considered the issue of whether a plaintiff satisfied due diligence requirements in serving his
wife in divorce proceedings when he knew that she had moved to Pakistan but was not aware of her
exact address. The court concluded that “plaintiff was aware of at least an e-mail address . . . where
defendant could be reached” and, citing the North Carolina Court of Appeals in Barclays v. BECA,
held that plaintiff’s actions did not satisfy due diligence because he failed to use “all reasonably
available resources to accomplish service.” Modan, 327 N.J. Super. at 49-50, 742 A.2d at 613-14 (citing
Barclays v. BECA, 116 N.C. App. 100, 446 S.E.2d 886 (1994).
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Opinion of the Court
area where the party to be served is believed by the serving party to be located, or if
there is no reliable information concerning the location of the party then in a
newspaper circulated in the county where the action is pending.” N.C. Gen. Stat. §
1A-1, Rule 4(j1) (2014). Here, the findings demonstrate that Plaintiff had reliable
information (from Defendant herself) that Defendant was living in New York City.
Therefore, the findings suggest that service by publication in Mecklenburg County –
where the action was pending – was ineffective. We note that Plaintiff cites Winter
v. Williams, 108 N.C. App. 739, 425 S.E.2d 458 (1993), in support of his argument
that service by publication was proper in Mecklenburg County. However, we find
Winter distinguishable. Specifically, in Winter, we held that service of process was
proper in Wake County (where the action was pending) where the plaintiff was only
aware of information that the defendant had moved “out west, possibly California.”
Id. at 745, 425 S.E.2d at 461. This Court concluded service was proper because
plaintiff had no “reliable information” as to the defendant’s whereabouts. Winter is
distinguishable from the present case because Plaintiff had reliable information from
Defendant and several other individuals that Defendant was in New York City, an
area significantly smaller and more precise than “out West,” or “possibly California.”
IV. Conclusion
We hold that the Divorce Judgment sought by Plaintiff in this case was
obtained without personal jurisdiction over Defendant and is, therefore, void.
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Opinion of the Court
Accordingly, it was proper for the trial court to set aside the Divorce Judgment based
on Rule 60(b)(4).
NO ERROR.
Judges HUNTER, JR. and DIETZ concur.
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