Brondum v. Cox

232 S.E.2d 687 (1977) 292 N.C. 192

Willa Ina BRONDUM
v.
Donald Alvin COX.

No. 72.

Supreme Court of North Carolina.

March 7, 1977.

Rufus L. Edmisten, Atty. Gen., by Parks H. Icenhour, Asst. Atty. Gen., and David D. Ward, Associate Atty., Raleigh, for plaintiff appellant.

Jordan, Wright, Nichols, Caffrey & Hill, by William W. Jordan and Janet L. Covey, Greensboro, for defendant appellee.

LAKE, Justice.

The plaintiff instituted her action for divorce in the Family Court of Hawaii on 24 September 1973. She alleged in her complaint: "Either or each party has been domiciled or has been physically present in this State for a continuous period of at least one year and the Plaintiff has been domiciled or has been physically present in this Circuit for a continuous period of at least three months next preceding this application for divorce." The summons and complaint in that action were served upon the defendant in North Carolina by registered mail. The defendant so concedes. Thus, he had actual notice of the pendency of the proceeding in Hawaii and of the allegations of the complaint and the prayer for relief contained therein. He filed no responsive pleading and made no appearance in that action. The Hawaii court thereupon entered judgment in which it "adjudged and decreed that: (1) A decree of absolute divorce is hereby granted to Plaintiff * * *. (2) Plaintiff is awarded the care, custody and control of the minor child * * * of the parties * * *. (3) The name and birth date of the minor child of the parties are as follows: * * * Noelani May Cox * * September 11, 1973."

Prior to the institution of the divorce action, the defendant had left the State of Hawaii with no intent to return thereto and with the intent to make his home in North Carolina, which he did and has continued to do. He has not denied that the plaintiff wife was domiciled in the State of Hawaii at the time the divorce action was instituted by her.

In the Restatement of Judgments, § 33, Comment a, it is said:

"A State can exercise through its courts jurisdiction to dissolve the marriage of spouses of whom one is domiciled within the State and the other is domiciled outside the State, if the spouse who is not domiciled within the State has consented that the other spouse acquire a separate home, or by his or her misconduct has ceased to have the right to object to the acquisition of such separate home, or is personally subject to the jurisdiction of the State which grants the divorce; or if the State is the last State in which the spouses were domiciled together as man and wife."

In the Restatement of Conflict of Laws, 2d, § 72, it is stated:

"A state has power to exercise judicial jurisdiction to dissolve the marriage of spouses, neither of whom is domiciled in the state, if either spouse has such a relationship to the state as would make it reasonable for the state to dissolve the marriage."

Clearly, under the circumstances of this case, the State of Hawaii had jurisdiction to entertain the plaintiff's divorce action and to grant her the divorce prayed for. This part of the Hawaii judgment must, therefore, be given full faith and credit by the courts of North Carolina. Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942). Defendant does not, in the present proceeding, deny the validity of the Hawaii divorce as such.

Again, "A state has power to exercise judicial jurisdiction to determine the custody" of a child who is present in the state, Restatement of Conflict of Laws, 2d, § 79. Thus, the Hawaii court had jurisdiction to award the custody of Noelani May Cox to the plaintiff mother, but that is a different matter from a determination that the defendant is the father of the child and, therefore, has responsibility for her support.

As an incident to the divorce decree, the Hawaii court "adjudged" the plaintiff's daughter, Noelani May Cox, the child "of the parties"; that is, the child of the defendant as she was alleged to be in the complaint served upon the defendant in North Carolina by registered mail. The question is whether the Hawaii court had jurisdiction to render this part of its judgment. If so, it too must be given full faith and credit by the courts of North Carolina, otherwise not.

In the divorce action the Hawaii court did not have jurisdiction over the person of the defendant. At the time that action was instituted, the defendant was not domiciled in or physically present in the State of Hawaii. Hawaii Revised Statutes, § 580-3.5, provides:

"Personal judgment against absent defendant. In any proceeding in the family court, the court shall have the power to render a personal judgment against a party who is outside of this State and over whom jurisdiction is acquired by service of process [by registered mail] if the party was personally served with a copy of the summons or order to show cause and complaint or other pleading upon which the judgment is based and if the party was a domiciliary of this State (1) at the time that the cause of action which is the subject of the proceeding arose, or (2) at the time of the commencement of the proceeding, or (3) at the time of service." (Emphasis added.)

Since the defendant was not domiciled in Hawaii at either of the times so specified in the statute, a judgment in personam could not properly be entered against him by the Hawaii court in the plaintiff's action for divorce. Thus, if the adjudication that Noelani May Cox is the child of the defendant was a judgment in personam, that portion of the Hawaii judgment is void for want of jurisdiction and is not entitled to full faith and credit in the courts of this State. If, on the other hand, this adjudication was a judgment in rem, the Hawaii court did have jurisdiction to render it and it must be given full faith and credit in the courts of North Carolina.

This portion of the judgment rendered by the Hawaii court was an adjudication of the status of the child in relation to the defendant. Obviously, by virtue of the allegations of the complaint and the prayer for relief contained therein, the defendant had actual notice that the question of the child's status in relation to him was before the Hawaii court for determination and had ample opportunity to be heard in that court in opposition to the contention of the plaintiff with reference thereto. A judgment rendered by a court having jurisdiction to do so estops the parties to the action "as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward." Bruton v. Light Co., 217 N.C. 1, 6 S.E.2d 822 (1940). This well established rule has been applied in other jurisdictions to determinations of paternity in divorce proceedings in which the husband and alleged father did not appear or did not contest his paternity of the child. Garcia v. Garcia, 148 Cal. App. 2d 147, 306 P.2d 80 (1957); Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964); Farmer v. Farmer, 177 Kan. 657, 281 P.2d 1075 (1955); Byrd v. Travelers Insurance Co., 275 S.W.2d 861 (Tex.Civ.App.1955). In our opinion, this is a correct application of the rule. Thus, if the Hawaii court had jurisdiction to determine the status of the child in relation to the defendant, its determination thereof would be binding upon the defendant in the courts of this State, notwithstanding his failure to appear and to contest the issue of paternity.

Nothing else appearing, the liability of a man for the support of a child born to his wife and conceived during coverture may be determined in and as an incidental feature of an action brought by the wife for divorce in a court having jurisdiction to grant such divorce. However, the right to support is the right of the child, and the mother's action for a divorce can confer upon the court no greater jurisdiction to determine the status of the child in relation to the husband than would an action brought by the child to establish such status.

In Hartford v. Superior Court for the County of Los Angeles, 47 Cal. 2d 477, 304 P.2d 1 (1956), an illegitimate child domiciled in California sued for a declaration that the defendant, domiciled in New York, was his father, the mother of the child being dead. The summons and complaint in the California action were served upon the defendant by publication and by personal service in New York. The defendant moved to quash the service, which motion the trial court denied. On appeal the Supreme Court of California reversed, saying through Justice Traynor:

"Defendant contends that the relief sought is necessarily a personal judgment against him and that since he is not a California domiciliary * * * it would deny him due process of law to sustain the service of process made outside the state. * * *

[The California Code of Civil Procedure, § 417 provided that the court had power to render a personal judgment only if the defendant was personally served and was a resident of California at the time of the commencement of the action or at the time of service.]

"Plaintiff contends that since the purpose of the proceeding is only to establish the status of the parties as parent and child, it is a proceeding in rem and that therefore personal service within the state is not required * * *. We do not believe, however, that because the present proceeding is concerned solely with status it must necessarily be classified as a proceeding in rem, particularly if such a classification would result in making the judgment binding as to the status of the parties in subsequent litigation between them or others. The purpose of the particular action brought under Civil Code section 231 must be considered to determine how it should be characterized.

"That section provides for declarations of both the existence and nonexistence of the relation of parent and child by birth or adoption, and a distinction may reasonably be drawn between a proceeding to establish that the defendant is not the plaintiff's parent and one to establish that he is. By analogy to the rule applicable to ex parte divorces, it could reasonably be contended that the state may adjudicate the nonexistence of the parent-child relationship between its domiciliary and a person not subject to its jurisdiction if adequate notice is provided. [Citations omitted.] The severing of a relationship or an adjudication that it never existed for the purpose of establishing the parties' freedom from it in the future is not the same thing, however, as creating it or establishing its present existence. * * * Basically the difference is between the state's power to insulate its domiciliary from a relationship with one not within its jurisdiction and its lack of power to reach out and fasten a relationship upon a person over whom it has no jurisdiction. [Citations omitted.]

"Plaintiff correctly concedes that if the purpose of the present action were to enforce a duty of support or some other personal obligation growing out of the parent-child relationship, personal jurisdiction over defendant would be essential. [Citations omitted.] This requirement cannot be avoided by limiting the relief sought to a binding adjudication of the parties' status, since such an adjudication would prevent relitigation of the basic issue on which defendant's personal obligations to plaintiff must rest and to that extent would necessarily constitute a personal judgment against him. [Citations omitted.]

* * * * * *

"Since under the circumstances of this case, personal jurisdiction over defendant is essential for such action, the service upon him outside the state was ineffective."

In Watkins v. Watkins, 194 Tenn. 621, 254 S.W.2d 735 (1953), the court held that jurisdiction over the person of the defendant is essential to a judgment on a motion by the wife in a divorce action to determine the status of her children for the purpose of their future support in the event the husband should return to the jurisdiction of the court. In Neill v. Ridner, 153 Ind.App. 149, 286 N.E.2d 427 (1972), the court said that a paternity action is an action in personam. To the same effect see, In Re Hindi, 71 Ariz. 17, 222 P.2d 991 (1950) and State v. Murphy, 354 S.W.2d 42 (Mo.App., 1962). In a lengthy note entitled "Developments in the Law-State Court Jurisdiction," in 73 Harv.L.Rev. 909, at page 979, it is said:

Paternity. — For jurisdictional purposes the action of paternity has been uniformly treated very much like the ordinary tort action. * * * Although the paternity plaintiff has occasionally argued that jurisdiction should be assumed ex parte, that contention has been universally rejected even by courts which have found no difficulty in sustaining ex parte jurisdiction over divorce, on the ground that there exists a fundamental difference between actions such as divorce which merely sever a personal status — although they may continue preexisting obligations — and actions like paternity which impose new affirmative duties and obligations. * * * Because of the extremely harsh and unfair consequences of an erroneous judgment, jurisdiction in paternity cases should be allowed only upon compliance with the general criteria of fairness and convenience applicable to other types of personal actions considered above."

A judgment establishing the status of paternity necessarily fixes upon the adjudicated father a personal obligation for the support of the minor child. We, therefore, conclude that such judgment is one in personam and can be rendered only by a court having jurisdiction over the person of the defendant. It would, of course, be true that the order of the Hawaii court purporting to fix the amount which the defendant must pay for the support of his alleged minor child is a judgment in personam which the courts of this State are not required to give full faith and credit since the Hawaii court did not have jurisdiction over the person of the defendant. Since the Hawaii court's adjudication of paternity, if given full faith and credit, is a final determination of the defendant's personal liability, though the amount to be paid remains undetermined, we conclude that it also is an adjudication in personam.

It follows that the courts of this State are not required to give full faith and credit to the determination by the Family Court of Hawaii that the defendant is the father of Noelani May Cox. In the present action brought under the Uniform Reciprocal Enforcement of Support Act, G.S. Chapter 52A, the issue of paternity may be relitigated and, in that relitigation, the defendant is entitled to an order directing that the mother and child submit to a blood grouping test as provided in G.S. 8-50.1. If it be determined that the defendant is the father of the child, the duty of support is that provided in G.S. 52A-8.

We find no error in the judgment of the Court of Appeals reversing the denial by the District Court of the defendant's motion for a blood grouping test and his motion for a trial by jury.

AFFIRMED.