Brondum v. Cox

• Decision Date: 07 March 1977
• Docket Number: No. 72,72
• Citation: 232 S.E.2d 687,292 N.C. 192
• Parties: Willa Ina BRONDUM v. Donald Alvin COX.
• Court: North Carolina Supreme Court

Page 687

232 S.E.2d 687

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 condeces. 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, if 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 ordor 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...