Brondum v. Cox , 30 N.C. App. 35 ( 1976 )

226 S.E.2d 193 (1976) 30 N.C. App. 35

Willa Ina BRONDUM
v.
Donald Alvin COX.

No. 7518DC939.

Court of Appeals of North Carolina.

July 7, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Parks H. Icenhour, Raleigh, for petitioner.

Jordan, Wright, Nichols, Caffrey & Hill by William W. Jordan, Greensboro, for defendant-appellant.

HEDRICK, Judge.

Defendant assigns as error the denial of his motions for a blood grouping test and for a jury trial.

"A proceeding under the Uniform Reciprocal Enforcement of Support Act is a civil proceeding ``as in actions for alimony without divorce.' G.S. § 52A-12." Cline v. Cline, 6 N.C.App. 523, 170 S.E.2d 645 (1969). The procedure to be followed in an action for alimony without divorce "shall be as in other civil actions". G.S. 50-16.8(a); Williams v. Williams, 13 N.C.App. 468, 186 S.E.2d 210 (1972); see also Davis v. Davis, 269 N.C. 120, 152 S.E.2d 306 (1967). In "other civil actions" genuine issues of fact must be tried by a jury unless the right to a jury trial is waived. Sykes v. Belk, 278 N.C. 106, 179 S.E.2d 439 (1971); G.S. 1A-1, Rule 38; N.C.Const., Art. I, s. 25.

A defendant is entitled to a blood grouping test upon timely motion "in which the question of paternity arises" whether criminal or civil, regardless of any presumption which might arise when the child is born in wedlock. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972); G.S. 8-50.1.

We hold a defendant is entitled in a proceeding under the Uniform Reciprocal Enforcement of Support Act to a blood grouping test pursuant to G.S. 8-50.1 where the issue of paternity is raised and, upon timely motion, is entitled to have the jury pass on the issue of paternity.

In the present case whether the court erred in denying the defendant's motion for a blood grouping test and a jury trial depends on whether the court erred in concluding:

"[T]he finding of the Hawaii court as to the paternity of Noelani May Cox is conclusive as to the defendant, is entitled to full faith and credit in North Carolina, and may not be litigated by the defendant in North Carolina."

The courts of one State have no duty to give full faith and credit to the in personam judgment of a foreign State except where the foreign State obtained jurisdiction both as to the person and as to the subject matter of the action before it. Hosiery Mills v. Burlington Industries, 285 N.C. 344, 204 S.E.2d 834 (1974); Fleek v. Fleek, 270 N.C. 736, 155 S.E.2d 290 (1967); Arakaki v. Arakaki, 54 Haw. 60, 502 P.2d 380 (1972); Peterson v. Peterson, 24 Haw. 239 (1918); Wurfel, Recognition of Foreign Judgments, 50 N.C.L.R. 21 (1971). The order of the Hawaii court that the defendant pay $100.00 per month for the support of "the minor child of the parties" therefore must be given full faith and credit only if that judgment is not a personal judgment.

Both Hawaii and North Carolina hold that judgments for alimony and support of children are personal judgments. Peterson v. Peterson, supra; Fleek v. Fleek, supra; Surratt v. Surratt, 263 N.C. 466, 139 S.E.2d 720 (1965); Lennon v. Lennon, 252 N.C. 659, 114 S.E.2d 571 (1960); Lee, 1 N.C. Family Law, § 99. The district court correctly concluded that the courts of Hawaii in the present case did not have personal jurisdiction over the defendant. Thus, that portion of the judgment of the court in Hawaii requiring the defendant to pay $100.00 per month for the support of "the minor child of the parties" is void, simply because the Hawaii court never obtained personal jurisdiction of the defendant; and such a judgment cannot be used as a basis of a claim or defense in this State. Hosiery Mills v. Burlington Industries, supra.

Obviously, the order of the court of Hawaii requiring the defendant to support Noelani May Cox was based on the material finding and conclusion that the defendant was her father. If the order of a foreign State requiring a father to support his child is a "personal judgment", we think that the material finding upon which such order is based is likewise "personal", and need not be given full faith and credit unless the court making such finding had personal jurisdiction of the defendant. See generally Hartford v. Superior Court, 47 Cal. 2d 447, 304 P.2d 1 (1956); Watkins v. Watkins, 194 Tenn. 621, 254 S.W.2d 735 (1953).

We hold the trial court erred in concluding:

"[T]he finding of the Hawaii court as to the paternity of Noelani May Cox is conclusive as to the defendant, is entitled to full faith and credit in North Carolina, and may not be litigated by the defendant in North Carolina."

The court likewise erred in denying defendant's timely motion for a blood grouping test and a jury trial to determine the issue of paternity.

Reversed.

ARNOLD, J., concurs.

MORRIS, J., dissents.