Mahan v. Read

• Decision Date: 29 September 1954
• Docket Number: No. 103,103
• Citation: 240 N.C. 641,83 S.E.2d 706
• Parties: Mary MAHAN v. Charlie S. READ.
• Court: North Carolina Supreme Court

Page 706

83 S.E.2d 706

240 N.C. 641

Mary MAHAN v. Charlie S. READ.

No. 103

Supreme Court of North Carolina.

Sept. 29, 1954

Harry McMullan, Atty. Gen. and Worth H. Hester, Raleigh, member of staff, for plaintiff, appellee.

Davenport & Davenport, Nashville, and T. A. Burgess, Rocky Mount, for respondent, defendant, appellant.

BOBBITT, Justice.

A statute known as the Uniform Reciprocal Enforcement of Support Act was approved in September, 1950, by the National Conference of Commissioners on Uniform State Laws. This statute, referred to hereafter as the 1950 Uniform Act, was enacted, with some variations from state to state, by the legislatures of many states, including Arkansas, Acts of Arkansas 1951, Act 68, p. 140 et seq., and North Carolina, 1951 Session Laws of North Carolina, ch. 317, p. 256 et seq.

Variations in the North Carolina Act include the following:

(1) The 1950 Uniform Act divides the statute into three parts, bearing the captions, 'Part I.--General Provisions', 'Part II.--Criminal Enforcement', and 'Part III.--Civil Enforcement'. No divisions or captions appear in the North Carolina Act. Sections 52-27 through 52-30 of our statute correspond to sections 1-4 of the 1950 Uniform Act, which appear under the caption, 'Part I.--General Provisions'. Section 52-31 and 52-32 of our statute correspond to sections 5 and 6 of the 1950 Uniform Act, which appear under the caption, 'Part II.--Criminal Enforcement'. Sections 52-33 through 52-44 of our statute correspond to sections 7-19 (excluding section 8) of the 1950 Uniform Act, which appear under the caption, 'Part III.--Civil Enforcement'.

(2) Our statute specifically provides that when North Carolina is the 'Initiating State,' 'actions hereunder shall be commenced by the issuance of summons in the form required for actions for alimony without divorce', and when North Carolina is the 'Responding State,' 'the procedure under this Act shall be the same as in actions for alimony without divorce as provided by G.S. 50-16.'

(3) Our statute omits entirely section 8 of the 1950 Uniform Act, which is worded as follows: 'Remedies of a State or Political Subdivision Thereof Furnishing Support.--Whenever the state or a political subdivision thereof has furnished support to an obligee it shall have the same right to invoke the provisions hereof as the obligee to whom the support was furnished for the purpose of securing reimbursement of expenditures so made.'

Difficulties were encountered and defects discovered when the provisions of the 1950 Uniform Act were related to actual case situations. So, the 1950 Uniform Act was extensively amended by action of the National Conference of Commissioners on Uniform State Laws in September, 1952; and the statute as amended will be referred to as the 1952 Uniform Act. Thereafter, the legislatures of many states enacted the 1952 Uniform Act. Arkansas repealed the 1950 Uniform Act, which it had enacted in 1951; and in lieu thereof enacted the 1952 Uniform Act. Acts of Arkansas, 1953, Act 170, p. 573 et seq.; Arkansas Statutes 1947, Annotated, Vol. 3, 1953 Cumulative Pocket Supplement, sec. 34-2401 et seq. Thus, many states, including North Carolina, have on their statute books the 1950 Uniform Act, with variations, while others, including Arkansas, have on their statute books the 1952 Uniform Act, with variations.

Uniform Laws, Annotated, Vol. 9A, 1953 Cumulative Annual Pocket Part, p. 49 et seq., contains tables showing the states which have a statute substantially in accord with the 1950 Uniform Act and other states which have a statute substantially in accord with the 1952 Uniform Act.

In 1948, the New York Joint Legislative Committee on Interstate Cooperation drafted what is called the Uniform Support of Dependents Act, which was enacted in New York, McK.Unconsol.Laws, § 2111 et seq., and other states, including Kentucky. A comparison of this statute with the 1950 and 1952 Uniform Acts discloses an identity of underlying purpose and sufficient similarity to permit reciprocity between states having any one of these statutes.

Respondent, upon appeal, questions the constitutionality of the North Carolina Act, ch. 317, Session Laws of 1951. But the questions now raised were not presented to or passed upon by the court below. Moreover, disposition of this appeal does not necessitate a consideration of the constitutionality of the statute. State v. Lueders, 214 N.C. 558, 200 S.E. 22. However, it is noteworthy that the Court of Appeals of Kentucky has upheld as constitutional its Uniform Support of Dependents Act, K.R.S. 407.010 et seq., Duncan v. Smith, Ky., 262 S.W.2d 373. And the Court of Appeals of Maryland, in Commonwealth of Pennsylvania v. Warren, Md., 105 A.2d 488, wherein Pennsylvania was the 'Initiating State' and Maryland was the 'Responding State,' both of these states having the 1952 Uniform Act, 62 P.S.Pa. § 2043.1 et seq., Code Md.1951, Art.89C, § 1 et seq., held that the constitutional guarantee of a trial by jury extended only to the type of case in which the right of trial by jury existed at the time the Constitution was adopted.

W. J. Brockelbank, Professor of Law at the University of Idaho and a member of the Idaho Bar, served as chairman of the committee that drafted the 1950 Uniform Act. In an article appearing in the Arkansas Law Review, Vol. 5, No. 4, Fall 1951, from which the Supreme Court of Arkansas quotes in Dean v. Dodge, 220 Ark. 853, 250 S.W.2d 731, Professor Brockelbank states succinctly both the purpose and the procedure embodied in the 1950 Uniform Act in the following paragraph:

'The idea of a two-state procedure originated with the New York Act. This idea was adopted by the Uniform Law Commissioners in the Uniform Reciprocal Enforcement of Support Act, and the difference between the two acts on this matter is chiefly one of form. Reduced to its simplest terms the two-state proceeding is as follows: It opens with an action which normally will be commenced in the state where the family has been deserted (the initiating state). A simplified petition is filed. The judge looks it over to decide whether the facts show the probable existence of a duty of support, and if they do he sends the petition and a copy of the act to a court of the responding state to which the husband has fled or in which he has property. That court will then take the steps necessary to obtain jurisdiction of the husband or his property, will hold a hearing and if the court finds that a duty of support exists, may order the defendant to furnish support and will transmit a copy of its order to the court in the initiating state. To enforce compliance with its orders the court may subject the defendant to such terms and conditions as it may deem proper, may require him to furnish bond or make periodic payments or, in case of refusal, may punish him for contempt. It has the duty to transmit to the initiating court any payments it receives and upon request to furnish a certified statement of those payments. The initiating court must receive and disburse these payments.'

The court below was in error in reaching the conclusion that the respondent's 'responsibility to support said children has already been found to exist by a court of competent jurisdiction of the County of Pulaski in the State of Arkansas. ' Under the North Carolina and Arkansas statutes, the function of the court of the 'Initiating State' is to certify to the sufficiency of the petition, i. e., that it sets forth facts 'from which it may be determined that the respondent owes a duty of support. ' (Italics added.) In this case, the Chancellor's certificate is in the quoted language. Indeed, the petition is that the court of the 'Initiating State' certify copies of the petition and order, with copy of the Arkansas statute, to the court in the 'Responding State' so that the court of the 'Responding State' may obtain jurisdiction of the respondent or his property.

It is quite clear that the Arkansas court, when the Chancellor signed the certificate and ordered that the petition and other documents be transmitted to the Superior Court of Edgecombe County, had no jurisdiction to make any determination affecting the substantive rights of the parties nor did it purport to do so. In effect, by approval of the petition and the certification of the documents the Arkansas court enabled petitioner to submit herself, without the necessity of personal presence or employment of counsel, to the jurisdiction of the Superior Court of Edgecombe County, North Carolina. Upon the receipt and filing of the transmitted documents, the Superior Court of Edgecombe County obtained jurisdiction of respondent through service of a summons and notice. Respondent, through counsel, filed an answer to the petition.

While it is unnecessary to set forth in detail the provisions of the North Carolina Act, we note the following:

'The remedies herein provided are in addition to and not in substitution for any other remedies.'

"Obligor' means any person owing a duty of support.'

"Obligee' means any person to whom a duty of support is owed.'

When the cause came on for hearing at January Term 1954, of Edgecombe County, before the Presiding Judge of the Second...