Denson v. Denson

122 S.E.2d 507 (1961) 255 N.C. 703

Edgar DENSON
v.
Edna DENSON.

No. 386.

Supreme Court of North Carolina.

November 22, 1961.

Phillips, Bower & Klass, Lexington, for appellant.

Hayes & Hayes, Winston-Salem, for appellee.

DENNY, Justice.

An examination of the complaint filed in this action reveals that it was not alleged therein that plaintiff was a resident of Davidson County, but instead, "That the plaintiff is now and has been for more than six months a resident of the State of North Carolina * * *."

Therefore, the appropriate issue in light of the pleadings should have read: Has the plaintiff been a resident of the State of North Carolina for more than six months next preceding the commencement of this action? No issue as to whether the plaintiff was or was not a resident of Davidson County was raised by the pleadings.

It clearly appears from the evidence adduced in the hearing below that the plaintiff, Edgar Denson, at the time he instituted this action in Davidson County, North Carolina, was a resident of Forsyth County, North Carolina, and had been a resident thereof for several years immediately prior thereto.

Furthermore, no evidence was introduced in the hearing below tending to show that the plaintiff or any other witness on his behalf, testified at the trial in January 1960 that the plaintiff was a resident of Davidson County.

G.S. § 50-6, in pertinent part, provides: "Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months." (Emphasis added.)

In Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227, 233, this Court said: "Under this statute (G.S. § 50-6), in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years; and (2) the plaintiff, husband or wife, shall have resided in the State of North Carolina for a period of one year (now six months)."

The jurisdictional requirement as to residence under G.S. § 50-6 is met by allegation and proof of residence within the State of North Carolina for a period of six months next preceding the commencement of the action.

In 27A C.J.S. Divorce § 83 page 284, it is said: "With respect to the place within the state for bringing action, an action for divorce is a transitory, and not a local, action and, therefore, in some jurisdictions it may be instituted in any county of the state, subject to the right of defendant to require the prosecution of the action in a county prescribed by statute," citing Smith v. Smith, 226 N.C. 506, 39 S.E.2d 391.

"As a general rule, statutory provisions with respect to the place for commencing divorce proceedings relate to venue only, * * *." 27A C.J.S. Divorce § 83, page 298.

In the case of Smith v. Smith, supra, the plaintiff, a resident of Hertford County, instituted a divorce action in Martin County. Summons was served on the defendant, a nonresident of North Carolina, by publication. In affirming the lower court's denial of the motion to set aside the judgment of divorce, this Court, speaking through Winborne, J., now C. J., said: "The provision of the statute, G.S. § 50-3, that in all proceedings for divorce the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides, is not jurisdictional, but relates to venue, and may be waived. If an action for divorce be instituted in any other county in the State, the action may be tried therein, unless the defendant before the time of answering expires demands in writing that the trial be had in the proper county. See Davis v. Davis, 179 N.C. 185, 102 S.E. 270." [226 N.C. 506, 39 S.E.2d 393.]

In Davis v. Davis, 179 N.C. 185, 102 S.E. 270, 271, the plaintiff brought an action for divorce in Beaufort County, although he resided elsewhere in North Carolina. The defendant was served with process by publication. This Court held: "The first objection of the defendant to the validity and regularity of the decree of divorce is based on section 1559 of Revisal (now G.S. § 50-3), which provides that, `In all proceedings for divorce the summons shall be returnable to the court of the county in which the applicant resides,' the defendant contending that this is jurisdictional.

"It is evident that the General Assembly did not so intend because it placed the section under the title of venue and not of jurisdiction, and nothing appears to show the purpose to take an action for divorce out of the general principle, which prevails, that any action brought in the wrong county may be removed instead of dismissing it, and that a failure to make the motion for removal is a waiver of the objection to the county in which it is brought."

Likewise, in McLean v. McLean, 233 N. C. 139, 63 S.E.2d 138, 143, we held: "The mere fact of instituting suit for divorce in a county other than that of plaintiff's residence would not be regarded as affecting the jurisdiction of the court over the action on proper service, but rather as affecting only the question of venue."

Defendant Edna Denson, movant here, was personally served with process in the divorce proceeding, and it does not appear from the record before us that she filed an answer to the complaint therein. Neither is it contended that any motion was made for change of venue before the time for answering expired.

The evidence offered in the hearing below in support of the movant's motion establishes unequivocally that the plaintiff had been a resident of North Carolina for more than six months next preceding the institution of his action. Therefore, conceding, as we must in light of the evidence, that the plaintiff had been a resident of North Carolina for the time required by statute prior to the institution of his action for divorce, it is immaterial whether he was a resident of Davidson, Forsyth, or some other county.

We hold that the evidence introduced in the hearing below and the facts found based thereon are insufficient to support a conclusion that the plaintiff perpetrated a fraud on the court with respect to his residence.

The court below committed error in entering the order setting aside the judgment in this action, and the same is

Reversed.