Fleming v. Fleming, 8028DC383

• Decision Date: 04 November 1980
• Docket Number: No. 8028DC383,8028DC383
• Citation: 271 S.E.2d 584,49 N.C.App. 345
• Court: North Carolina Court of Appeals
• Parties: Teresa FLEMING v. Jackie W. FLEMING.

Page 584

271 S.E.2d 584

49 N.C.App. 345

Teresa FLEMING v. Jackie W. FLEMING.

No. 8028DC383.

Court of Appeals of North Carolina.

Nov. 4, 1980.

Brock, Begley & Drye by Michael W. Drye, Asheville, for plaintiff appellant-appellee.

Redden, Redden & Redden by Randolph C. Romeo, Hendersonville, for defendant appellant-appellee.

CLARK, Judge.

Defendant bases his appeal on two questions. The first is whether Judge Styles erred in concluding at the confirmation hearing that the Arizona court had personal jurisdiction over the defendant. The second is whether that conclusion foreclosed the defendant from presenting at the enforcement hearing "matters that would be available to him as defenses in an action to enforce a foreign money judgment (i. e., the lack of personal jurisdiction of the court rendering the original judgment)" as provided in G.S. 52A-30(c). We resolve both questions against the defendant.

Judge Styles' conclusion that the Arizona court had personal jurisdiction over the defendant did not prejudice the defendant in the confirmation hearing. In a similar case, Pinner v. Pinner, 33 N.C.App. 204, 234 S.E.2d 633 (1977), we held that registration and enforcement were entirely separate procedures under URESA, G.S. Ch. 52A. We further held that personal jurisdiction is unnecessary for mere registration of a foreign support order under URESA, G.S. 52A-29, and that language in a confirmation order purporting to find personal jurisdiction was superfluous and did not bind the defendant therein in the subsequent enforcement proceedings. Pinner v. Pinner, 33 N.C.App. at 207, 234 S.E.2d at 636. Defendant was not prejudiced by Judge Styles' superfluous jurisdictional findings because they were unnecessary to the issue before the court and were therefore of no effect upon the rights of the parties in the subsequent enforcement hearing.

Judge Styles' conclusion that the Arizona court had personal jurisdiction over the defendant did not prejudice the defendant in the enforcement proceedings. As previously indicated, the defendant was free to defend at the enforcement hearing on the basis of Arizona's lack of jurisdiction over his person. Pinner v. Pinner, supra. Defendant has failed to include in the record anything of the proceedings at the enforcement hearing. We are, therefore, unable to examine the record and determine whether the defendant properly raised the issue of personal jurisdiction at the enforcement hearing.

"In challenging a foreign judgment a defendant has the right to interpose proper defenses. He may defeat recovery by showing want of jurisdiction either as to the subject matter or as to the person of defendant. Hat Co., Inc. v. Chizik, 223 N.C. 371, 26 S.E.2d 871; Casey v. Barker, 219 N.C. 465, 14 S.E.2d 429; Dansby v. Insurance Co., supra. However, jurisdiction will be presumed until the contrary is shown. Levin v. Gladstein, supra."

Thomas v. Frosty Morn Meats, 266 N.C. 523, 526, 146 S.E.2d 397, 400 (1966). No error will be found where jurisdiction was presumed and the record is devoid of any effort to show lack of jurisdiction.

Plaintiff appeals that portion of the Order of 17 December 1979, denying her arrearages under the Arizona decree and order to modify the decree. Plaintiff's appeal must be considered in three parts. First, we must determine whether the Arizona decrees are entitled to full faith and credit in determining arrearages. Second, we must consider whether the Arizona judgment of 30 May 1978 was res judicata as to arrearages up to that date. Third, we must determine whether plaintiff is entitled to arrearages for the period of 30 May 1978 to 17 December 1979.

The full faith and credit clause in the United States Constitution, Article IV, Sec. 1, requires that the judgment of the court of one state must be given the same effect in a sister state that it has in the state where it was rendered. Spence v. Durham, 283 N.C. 671, 683, 198 S.E.2d 537, 545 (1973), cert. denied, sub nom. Spence v. Spence, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974). A decree for the future payment of alimony or child support is, as to installments past due and unpaid, within the protection of the full faith and credit clause of the Constitution unless by the law of the state in which the decree was rendered its enforcement is so completely within the discretion of the courts in that state that they may annul or modify the decree as to overdue and unsatisfied installments. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed.2d 905 (1910); Lockman v. Lockman, 220 N.C. 95, 16 S.E.2d 670 (1941). It is clear from the case law of the State of Arizona that installments of alimony and support payments become vested when they become due and the courts of that state have no power to modify the decree as to such past due installments. Adair v. Superior Court of Maricopa County, 44 Ariz. 139, 33 P.2d 995, 94 A.L.R. 328 (1934). It must also be noted that URESA provides that a properly registered foreign support order "shall be treated in the same manner as a support order issued by a court of this State." G.S. 52A-30(a). Judge Fowler then was bound by the Arizona decrees in determining the arrearages owing to plaintiff under the duly registered Arizona decrees.

The judgment of 30 May 1978 is a final judgment entitled to full faith and credit, Spence v. Durham, supra, and is conclusive on the amount owed by defendant under the two decrees between the time of their entry in Arizona and the time of entry of the Arizona judgment for arrearages...