Lynch v. Lynch

• Decision Date: 02 February 1981
• Docket Number: No. 90,90
• Citation: 274 S.E.2d 212,302 N.C. 189
• Parties: Michael Roland LYNCH v. Jean T. LYNCH.
• Court: North Carolina Supreme Court

Page 212

274 S.E.2d 212

302 N.C. 189

Michael Roland LYNCH v. Jean T. LYNCH.

No. 90.

Supreme Court of North Carolina.

Feb. 2, 1981.

Hicks, Harris & Sterrett by Richard F. Harris, III, Charlotte, for defendant-appellant.

No counsel for plaintiff-appellee.

COPELAND, Justice.

By this appeal defendant asks us to determine which, if any, of the orders filed by the North Carolina and Illinois Courts are binding upon the parties. We agree with the Court of Appeals that the judgments of the North Carolina district court on 6 April 1978 and 1 June 1978, awarding custody to plaintiff, are not binding upon defendant. However, we reverse that portion of the Court of Appeals' decision which holds that the Illinois judgment of 17 July 1978 is not entitled to full faith and credit. We find that the Illinois judgment was a permanent, final determination of custody by a court with proper jurisdiction, and therefore the trial court erred in failing to give full faith and credit to that judgment.

The trial court properly granted defendant's motion to dismiss plaintiff's action for divorce from bed and board on the ground that plaintiff failed to meet the six month North Carolina residency requirement set forth in G.S. 50-8 before filing a complaint for divorce. Plaintiff himself testified before the district court that he moved to North Carolina on 20 March 1978. He filed his complaint seeking divorce from bed and board on 6 April 1978, only a few weeks after establishing residency in North Carolina. Hence, the district court lacked subject matter jurisdiction over the divorce action. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975); Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961). G.S. 1A-1, Rule 12(h)(3) provides that subject matter jurisdiction may be challenged at any point in a proceeding, therefore defendant's 30 November 1978 motion to dismiss the divorce action was timely made and correctly granted.

The portion of plaintiff's complaint seeking custody of his minor son constitutes a separate action, severable from the divorce proceeding. Consequently, the dismissal of the divorce action for lack of subject matter jurisdiction does not result in a dismissal of the custody action. Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977); Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Bunn v. Bunn, 258 N.C. 445, 128 S.E.2d 792 (1963). See G.S. 50-13.5(c) (1976) (prior to amendment effective 1 July 1979, 1979 N.C.Sess.Laws, c. 110, s. 12). We agree with the Court of Appeals' finding that the district court was authorized to assert subject matter jurisdiction over the custody portion of the case. At the time plaintiff's complaint was filed, G.S. 50-13.5(c)(2) provided:

"(2) The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child when: a. The minor child resides, has his domicile, or is physically present in this State..."

It is a generally accepted principle that the courts of the state in which a minor child is physically present have jurisdiction consistent with due process to adjudicate a custody dispute involving that child. The authority to assert jurisdiction stems from the state's responsibility as parens patriae to provide for the general welfare of any child within its borders. Murphy v. Murphy, 404 N.E.2d 69 (Mass.1980); Trampert v. Trampert, 55 App.Div.2d 838, 390 N.Y.S.2d 325 (1976); Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974); Holmes v. Sanders, 246 N.C. 200, 97 S.E.2d 683 (1957); Adams v. Bowens, 230 S.E.2d 481 (W.Va.1976). G.S. 50-13.5(c)(2) was amended by the 1979 Session Laws, effective 1 July 1979, to read that the courts of this state shall have jurisdiction to adjudicate a custody proceeding under the provisions of G.S. 50A-3. G.S. 50A-3, also effective 1 July 1979, states that a North Carolina court has jurisdiction to determine matters of child custody based upon the physical presence of the child within the state only if the child has been abandoned, if no other state would have jurisdiction, or if it is necessary in an emergency situation to protect the health of the child. Since this statute was not made retroactive, it has no bearing upon this case, and defendant's claim that the court erred in asserting jurisdiction over the custody determination is without merit. See 1979 N.C.Sess.Laws, c. 110, s. 1, effective 1 July 1979.

However, we do find merit in defendant's contention that the district court lacked personal jurisdiction over her at the time it entered its orders of 6 April 1978 and 1 June 1978, and hold in accord with the decision of the Court of Appeals that these orders are not binding upon her. Plaintiff alleged that defendant was properly served with summons on 11 April 1978 by means of certified mail, return receipt requested, and therefore the district court had personal jurisdiction over her. G.S. 50-13.5(d), in effect at the time plaintiff filed his complaint and until 1 July 1979, stated that:

"(1) Service of process in civil actions or habeas corpus proceedings for the custody of minor children shall be as in other civil actions or habeas corpus proceedings. Motions for custody or support of a minor child in a pending action may be made on five days' notice to the other parties and compliance with G.S. 50-13.5(e).

(2) If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided."

Service of process in other civil proceedings is governed by the provisions of G.S. 1A-1, Rule 4, which provides in section (j)(9) that any person who is not an inhabitant of the state or found within the state may be served with process by:

"... b. Registered or certified mail. Any party subject to service of process under this subsection (9) may be served by mailing a copy of the summons and complaint, registered or certified mail, return receipt requested, addressed to the party to be served. Service shall be complete on the day the summons and complaint are delivered to the address.... Before judgment by default may be had on such service, the serving party shall file an affidavit with the court showing the circumstances warranting the use of service by registered or certified mail averring (i) that a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested, (ii) that it was in fact received as evidenced by the attached registered or certified receipt or other evidence satisfactory to the court of delivery to the addressee and (iii) that the genuine receipt or other evidence of delivery is attached. This affidavit shall be prima facie evidence that service was made on the date disclosed therein in accordance with the requirements of this paragraph, and shall also constitute the method of proof of service of process when the party appears in the action and challenges such service upon him. This affidavit together with the return receipt signed by the person who received the mail raises a rebuttable presumption that the person who received the mail and signed the receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of process or was a person of suitable age and discretion residing in the defendant's dwelling house or usual place of abode."

The record shows that at the time of the 1 June 1978 order awarding permanent custody to plaintiff, the only document before the court which tended to prove service of process on defendant was a return receipt for certified mail, allegedly signed by defendant, dated 11 April 1978 and addressed to her residence at 8435 South Merrimack Street, Burbank, Chicago, Illinois. This receipt shows that something was delivered to defendant on that date, but does not indicate what was delivered. The affidavit stating the circumstances warranting the use of service by certified mail, required under Rule 4(j)(9)b, was not filed until 19 January 1979. Plaintiff never filed an affidavit stating that copies of the summons, complaint, and order were deposited in the post office for delivery by registered or certified mail, also a requirement under Rule 4(j)(9)b. If a statute specifies that certain requirements must be complied with in the process of serving summons, failure to follow these requirements results in a failure of service. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977). Since plaintiff failed to file the affidavits required by Rule 4(j)(9)b, the return receipt of certified mail was insufficient to prove service of process, and plaintiff was never properly served in this action. Unless waived by the party to be served, service of summons in compliance with Rule 4 is required before a court may assert personal jurisdiction over that party or enter a default judgment against him. Guthrie v. Ray, supra; North State Finance Co. v. Leonard, 263 N.C. 167, 139 S.E.2d 356 (1964); Kleinfeldt v. Shoney's of Charlotte, Inc., 257 N.C. 791, 127 S.E.2d 573 (1962). Since defendant was never properly served with process under Rule 4 and had not waived the right to be served at that time, the 1 June 1978 order awarding permanent custody to plaintiff was a nullity as to her. Under G.S. 50-13.5(d) (2), in effect at the time of the present custody action, a temporary custody order was binding only if service of process was carried out in accordance with Rule 4. Such service of process was never rendered, therefore the temporary custody order of 6 April 1978 was also not binding on defendant.

Although service of process was defective in this case, we agree with the Court of Appeals' holding that by her motions filed 30 November 1978, defendant made a general appearance in the custody proceeding, and thereby waived her right...