Gyger v. Clement
| Decision Date | 18 December 2018 |
| Docket Number | No. COA18-244,COA18-244 |
| Citation | 263 N.C.App. 118,823 S.E.2d 400 |
| Court | North Carolina Court of Appeals |
| Parties | Eve GYGER, Plaintiff, v. Quintin CLEMENT, Defendant. |
George Daly, Charlotte, for plaintiff-appellant.
Coltrane & Overfield, PLLC, Greensboro, by Wendy M. Enochs, for defendant-appellee.
Plaintiff-Mother Eve Gyger appeals from the trial court's order denying her Rule 60 motions for relief from an order vacating the registration of her foreign support order. For the reasons explained below, we affirm the trial court's ruling.
Between 1997 and 1999, Plaintiff-Mother and Defendant-Father were involved in a romantic relationship while living in North Carolina. The parties had two children born in May 2000 in Geneva, Switzerland. On 24 October 2007, Plaintiff-Mother, through the children's guardian, initiated an action in the Court of First Instance, Third Chamber, Republic and Canton of Geneva against Defendant-Father to establish paternity and child support. Defendant-Father did not appear in person or through counsel. On 14 December 2009, the Swiss court entered judgment against Defendant-Father on both counts.
The application also included copies of court documents written in French, the official language of the Swiss court, as well as English translations certified by a Swiss court translator.
The Guilford County Clerk of Court registered the Swiss support order for enforcement on 13 June 2016. Defendant-Father was served with a Notice of Registration of Foreign Support Order on 20 June 2016, and on 1 July 2016, Defendant-Father timely filed a Request for Hearing to "vacate the registration, to contest the remedies being sought or the amount of the alleged arrears pursuant to N.C. Gen. Stat. § 52C-6-607." The IV-D Attorney1 for the Guilford County Child Support Enforcement Agency notified Plaintiff-Mother of the hearing with a notice for "Hearing to Register Foreign Support Order" mailed on 14 July 2016, care of the Swiss Central Authority for Maintenance Matters Section for Private International Law at its address in Bern, Switzerland.
On 2 September 2016, a hearing was conducted in Guilford County District Court before the Honorable Lawrence McSwain. The trial court vacated the registration of the foreign support order pursuant to N.C. Gen. Stat. §§ 52C-6-607(a)(1) and 52C-7-706(b)(3) and dismissed the action, finding that the court file lacked any evidence that Defendant-Father had been provided with proper notice of the proceedings in Switzerland and an opportunity to be heard, and further, that Defendant did not submit to the jurisdiction of Switzerland.
On 26 July 2017, Plaintiff-Mother filed a Motion for Relief from the trial court's order pursuant to N.C. Gen. Stat. § 1A-1, Rules 60(b)(1), (2), (4), and (6), and thereafter filed two amended motions.2 The trial court conducted a hearing on Plaintiff-Mother's 60(b) motions on 6 October 2017. Plaintiff-Mother did not appear at the hearing, but attempted through counsel to introduce two affidavits and the transcript of a deposition of Defendant-Father. The trial court admitted the deposition and transcript into evidence, but excluded the affidavits. The trial court excluded the first affidavit, an "Affidavit of Eve Gyger" purportedly signed by Plaintiff-Mother, because it was not notarized, and Plaintiff-Mother was not present to be examined. The second affidavit, an "Affidavit of Translation" containing English translations by a French translator professing to demonstrate that certain translations of the Swiss court's file were erroneous, was not admitted because the translator was not present in court and a third-party translation may not be substituted for the original translation provided by the Swiss court. In addition, Leilani Morange, Plaintiff-Mother's caseworker with the Guilford County Child Support Enforcement Agency, testified that it was her office's procedure to send all correspondence to plaintiffs in interstate and international child support enforcement cases to the agency that initiated the action on behalf of the plaintiff.
By orders entered 30 November 2017 and 2 January 2018, the trial court denied Plaintiff-Mother's motions for relief from judgment under Rules 60(b)(1), (2), (4), and (6). Plaintiff-Mother timely appealed.
In order to simplify and streamline the procedures by which, inter alia , a child support order rendered in another jurisdiction could be enforced, the General Assembly adopted the Uniform Interstate Family Support Act. See 42 U.S.C. § 666 (2017) ; N.C. Gen. Stat. §§ 52C-1-100 to 52C-9-902 (2017). A support order is:
a judgment, decree, order, decision, or directive, whether temporary, final, or subject to modification, issued in a state or a foreign country for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual obligee in place of child support.
Id. § 52C-1-101(21). "A support order ... issued in another state or a foreign support order may be registered in this State for enforcement." Id. § 52C-6-601. A foreign support order is a support order of a foreign tribunal authorized to issue such orders. See id. § 52C-1-101(3b), (3c). A foreign country "means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and ... has been declared under the law of the United States to be a foreign reciprocating country." Id. § 52C-1-101(3a)(a). Federal law allows the United States Secretaries of State and Health and Human Services to declare any foreign country to be a foreign reciprocating country "if the foreign country has established, or undertakes to establish, procedures for the establishment and enforcement of duties of support owed to obligees who are residents of the United States," provided that such procedures conform with standards prescribed by law. 42 U.S.C. § 659a(a)(1) (2017).
On 31 August 2004, a child support reciprocity agreement between Switzerland and the United States was entered into and Switzerland was declared a foreign reciprocating country. See Agreement Between the Government of the United States of America and the Government of the Swiss Confederation for the Enforcement of Maintenance (Support) Obligations, Switz.-U.S, Aug. 31, 2004, T.I.A.S. No. 04-930.1, [https://perma.cc/C8TX-K8SU]. Regarding recognition and enforcement of maintenance decisions, the agreement states:
Id. art. 7. The agreement requires that the "Requesting Party," in this case Switzerland, transmit the application for enforcement with the requisite supporting documentation, including the decision of the local tribunal, to the North Carolina Child Support Enforcement Agency as the responsible public body of the Department of Health and Human Services, Office of Child Support Enforcement. See id. art. 4, cl. 3. However, for a foreign decision or order to be recognized and enforced, the application shall include "evidence that the respondent has appeared in the proceedings or has been given notice and an opportunity to appear." Id. art. 4, cl. 5(b).
Once a requesting party registers a foreign support order for enforcement pursuant to N.C. Gen. Stat. § 52C-6-602, the non-registering party, the individual from whom support is being sought, must be notified of the registration of the support order and informed of the opportunity to contest the validity or enforcement of the order within twenty days after receiving notice. Id. § 52C-6-605. "A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving" at least one of several enumerated defenses, including that "[t]he issuing tribunal lacked personal jurisdiction over the contesting party." Id. § 52C-6-607(a)(1).
Described as "a grand reservoir of equitable power to do justice in a particular case," Sloan v. Sloan , 151 N.C. App. 399, 404, 566 S.E.2d 97, 101 (2002), Rule 60(b) provides that ...
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