Carpenter v. Carpenter

• Decision Date: 26 June 1956
• Docket Number: No. 668,668
• Citation: 244 N.C. 286,93 S.E.2d 617
• Court: North Carolina Supreme Court
• Parties: Stanley M. CARPENTER v. Mary Kelly Shaver CARPENTER.

Page 617

93 S.E.2d 617

244 N.C. 286

Stanley M. CARPENTER v. Mary Kelly Shaver CARPENTER.

No. 668

Supreme Court of North Carolina.

June 26, 1956

Haywood & Denny, Durham, for defendant, appellant.

Reade, Fuller, Newsom & Graham and Oscar G. Barker, Durham, for plaintiff, appellee.

BOBBITT, Justice.

It is noted that defendant's appeal was docketed before the effective date of Rule 4(a). 242 N.C. 766 (Appendix). Docketed as No. 671, Fall Term, 1955, it was carried over and docketed as No. 668, Spring Term, 1956.

Defendant's motion, as related to paragraphs 6 and 8, was properly denied. These allegations contain no specific reference to the divorce action or decree.

It is important to gain a true perspective of the precise question for decision. To do so, we must bear in mind the matters stated below.

The action is for annulment of the marriage. To obtain this relief, plaintiff attacks the divorce decree. This action concerns its validity as between plaintiff and defendant, that is, whether it constitutes a bar to plaintiff's action. If plaintiff should prevail, the judgment would decree that the marriage, not the divorce decree, was void. As between themselves, the parties to the divorce action would not be directly affected by such judgment. Indeed, Shaver, defendant in the divorce action, is not a party herein.

The allegations challenged by defendant's motion attack the divorce decree solely on the ground that it is based on false swearing in pleading and in testimony relating to whether the Shavers had separated and thereafter lived separate and apart continuously for two years or more next preceding 10 May, 1946, the date the divorce action was commenced. The allegations imply that, upon the face of the judgment roll, the divorce proceedings, including the decree, were in all respects regular, disclosing that the court had jurisdiction both of the parties and of the subject matter. At least, nothing to the contrary is alleged; and no point is involved here as to defects, jurisdictional or otherwise, appearing on the face of the judgment roll. Nor is it now alleged that the plaintiff in the divorce action was not in fact a bona fide resident of North Carolina for the time required to confer jurisdiction on the court.

There is no question but that the divorce decree is valid if in fact the Shavers separated on 1 January, 1944, and lived separate and apart continuously thereafter. Such separation constituted a recognized ground for absolute divorce. G.S. § 50-6.

The precise question is this: Can plaintiff attack collaterally the divorce proceedings and the decree, for the purpose of nullifying such decree insofar as it affects his marriage, by offering evidence tending to show that, contrary to what appears on the face of the judgment roll, the Shavers had not been separated for the requisite statutory period and that therefore the decree is void as to him because based on perjury in respect of the ground for divorce? If so, the allegations must stand; otherwise they must be stricken. G.S. § 1-153; Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660.

Admittedly, if plaintiff can attack the divorce decree at all he must do so (collaterally) in an independent action; for, as held this day, he is a stranger to the divorce action and cannot intervene therein and attack the divorce decree by motion in the cause. Shaver v. Shaver, N.C., 93 S.E.2d 614. But it should be borne in mind that the only question before us is whether plaintiff can collaterally attack the divorce decree on the ground alleged, not whether plaintiff can cttack collaterally the divorce decree on the ground alleged, not whether plaintiff can attack collaterally the divorce decree on other grounds. Incidentally, cases such as McCoy v. Justice, 199 N.C. 602, 155 S.E. 452, and Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1, in which 'extrinsic' fraud and 'intrinsic' fraud are distinguished, relate to the proper procedure in each instance by a party to the original action.

The question before us is one of first impression in this jurisdiction. However, for the purpose of drawing the question into clearer focus, consideration of certain of our decisions seems appropriate.

Prior to Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, North Carolina did not recognize the jurisdiction of the courts of a foreign state, albeit the state of the plaintiff's domicile, to render a divorce decree valid and enforceable in North Carolina, against a resident of this State who did not appear in the action and was only constructively served with notice of its pendency. Numerous decisions to this effect are cited in the opinions in State v. Williams, 220 N.C. 445, 17 S.E.2d 769. They are based on the early North Carolina decision in Irby v. Wilson, 21 N.C. 568, and the later United States decision in Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867. It was so decided in Pridgen v. Pridgen, 203 N.C. 533, 166 S.E. 591, an action by a second husband for annulment of his purported marriage to the defendant based on her alleged incapacity to contract a valid marriage, she having a living husband. She relied upon a divorce decree obtained in Georgia by her first husband when she resided in North Carolina. The jurisdiction of the Georgia court was predicated solely on service of summons by publication. Hence, it appeared on the face of the judgment roll that the Georgia court had not acquired jurisdiction of the defendant. The Pridgen case is direct authority for the proposition that in such annulment action the purported divorce may be attacked collaterally when it appears on the face of the record that the court granting such decree had no jurisdiction of the person of the defendant. Although not an annulment action, it was held in the basic case of Irby v. Wilson, supra, that a Tennessee divorce decree, entered under similar circumstances, was subject to collateral attack, it appearing on the face of the record that 'it was not an adjudication between any parties,' since the Tennessee court had no jurisdiction of the person of the person of the defendant.

Unquestionably, when it appears on the face of the record that a court has no jurisdiction, either of the person or of the subject matter, any judgment it attempts to render is a nullity and so may be attacked by any person adversely affected thereby, at any time, collaterally or otherwise. Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315.

In Rodriguez v. Rodriguez, 224 N. C. 275, 29 S.E.2d 901, Guerin v. Guerin, 208 N.C. 457, 181 S.E. 274, Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283, Fowler v. Fowler, supra, and cases cited, it appeared on the face of the record that the court had not obtained jurisdiction of the person of the defendant. In the Rodriguez and Fowler cases, the attempted service by publication was held fatally defective because the affidavit did not comply with the requirements of G.S. § 1-98. When the summons is by publication, no jurisdiction is acquired over the person of the defengant unless it is made to appear by affidavit that everything necessary to dispense with personal service has been done. Board of Commissioners of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d 144.

Moreover, when service of summons by publication is based on a false and fraudulent affidavit, the court acquires no jurisdiction of the person of the defendant; and, upon motion in the cause by the party upon whom no process has been served, the court will set aside the judgment. Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; Fowler v. Fowler, supra. The same rule applies when the judgment is apparently regular, the judgment roll showing service or appearance when in fact there was none. City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311. And when the judgment roll, save the judgment itself, was lost, the record failed to disclose service; and a party to the judgment was permitted to attack it collaterally by showing that no summons was ever served on her. Downing v. White, 211 N.C. 40, 188 S.E. 815. Too, letters of administration were revoked, upon motion of a person adversely affected thereby, upon proof of facts establishing that the power to grant such letters was not within the jurisdiction of the clerk who issued them. Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R.284.

In such cases, the motion raises questions of fact; and the court has the power and the duty to hear evidence and find the facts, subject to review, determinative of its jurisdiction. Dellinger v. Clark, 234 N.C. 419, 67 S.E.2d 448; Miller v. Roberts, 212 N.C. 126, 193 S.E. 286; Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569.

Likewise, a decree of absolute divorce will be declared void if the court was without power or jurisdiction to render it because of the insufficiency of the facts found by the jury, when this appears on the face of the record. Such decree may be attacked directly by motion in the cause, Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7, or collaterally, Saunderson v. Saunderson, 195 N.C. 169, 141 S.E. 572.

Here the jurisdiction of the Superior Court of Durham County of the person of the plaintiff and of the defendant of the divorce action is not in controversy. And, if the plaintiff had a cause of action for absolute divorce, that court had jurisdiction to try it. It is not alleged that the issues answered by the jury were insufficient to support the decree. Rather, it is urged that in North Carolina the causes for divorce and the prerequisites for jurisdiction are statutory, Ellis v. Ellis, supra; that the filing of the affidavit required by G.S. § 50-8 is a prerequisite to jurisdiction; and that, if an essential averment therein is sufficient on its face but false in fact, even though it relates solely to the alleged cause for divorce, such falsity destroys the foundation on which the jurisdiction of the court depends...