Rodriguez v. Rodriguez
| Decision Date | 03 May 1944 |
| Docket Number | 522. |
| Parties | RODRIGUEZ v. RODRIGUEZ. |
| Court | North Carolina Supreme Court |
The plaintiff brought an action against the defendant in the Superior Court of Mecklenburg County for absolute divorce, making the following affidavit:
'Arthur Hermenijildo Rodriguez, first being duly sworn, deposes and says:
'That in the above entitled action now pending in the Superior Court of Mecklenburg County, the Sheriff of said county and State has returned the summons issued to him in said action endorsed as follows: 'The defendant Isabel Rodriguez, cannot, after due diligence, be found in Mecklenburg County or in the State of North Carolina' that the plaintiff, after due diligence, has been unable to locate the defendant and that her whereabouts to this plaintiff herein is not known and that the plaintiff has a just cause of action against the defendant for an absolute divorce on the grounds of two successive years of separation.
'Wherefore the plaintiff prays that an order be made by the Court that service of summons be made on the defendant by publication in some newspaper published in Mecklenburg County, North Carolina.
'This the 8th day of February, 1943.
With the affidavit was filed the summons and the complaint. Thereupon the following order of publication was made by the Clerk of the Superior Court:
'It appearing from the affidavit of Arthur Hermenijildo Rodriguez in this action that Isabel Rodriguez, the defendant herein is not to be found in Mecklenburg County, and cannot, after due diligence, be found in the State, and
'It further appearing that a cause of action exists against the defendant for an absolute divorce on the grounds of two successive years of separation, as is now provided by law for such in the Consolidated Statutes of North Carolina; and that this is one of the causes in which service of summons may be made by publication, due to the fact that the defendant after due diligence, could not be found in the above county and State.
'It is, therefore, ordered that summons be served on said Isabel Rodriguez by publication, and to that end that notice of this action be published once a week for four (4) consecutive weeks, in a weekly newspaper published in Mecklenburg County, setting forth the title of the action, the purpose of the same, and requiring the defendant to appear at the office of the Clerk of the Superior Court for Mecklenburg County in the Courthouse in Charlotte, and answer or demur to the complaint, on the 24th day of March, 1943 or the relief stated and alleged therein will be granted the plaintiff.
'This 8th day of February, 1943.
'J. Lester Wolfe,
'Clerk Superior Court.'
In accordance therewith, notice was published the statutory length of time in a weekly paper of general circulation, published at Charlotte, N. C.
At the March 1943 Term of the Superior Court of Mecklenburg County, the cause was brought to a hearing before His Honor, Wilson Warlick, Judge, and a jury; and appropriate issues were submitted to the jury, all of which were answered in favor of the plaintiff. Thereupon, judgment was rendered, to wit, on the 5th day of April, 1943, granting an absolute divorce to the plaintiff from the defendant.
Thereafter, to wit, on September 18, 1943, the defendant, through her counsel, entered a special appearance and filed a motion to dismiss the action for that (1) the sheriff returned upon the summons issued to him only: 'After due and diligent search, Isabel Rodriguez not to be found in Mecklenburg County'; (2) that the plaintiff's affidavit to procure service by publication was defective in that it failed to state that diligent search had been made for the defendant and that after due diligence she was not to be found in the State of North Carolina, substituting therefor that the 'plaintiff, after due diligence, has been unable to locate the defendant and that her whereabouts to this plaintiff herein is not known,'--neither the return of the sheriff nor the affidavit stating that the defendant could not at the time, after due diligence, be found in the State of North Carolina, as required by statute.
Thereupon, on November 26, 1943, the plaintiff made a motion to amend the affidavit by inserting therein the following statement: 'That the defendant, after due diligence, cannot be located within the State of North Carolina'--supporting the motion with an affidavit that the defendant was at the time a resident of Hillsborough County, Florida, and was at said time within the State of Florida and not within the State of North Carolina. In this affidavit accompanying the motion, plaintiff stated that he was acting in good faith in signing the affidavit to obtain service by publication; that the application for publication had been prepared by his attorney, and that he had been remarried since the granting of the divorce. He further stated that the defendant never had been a resident of North Carolina, and so far as plaintiff knew, had never been in North Carolina prior to the trial of the divorce case, and it would have been absolutely impossible to obtain personal service of summons upon her in the divorce proceeding.
On the 7th day of December, 1943, Frank McCleneghan, Esq., the attorney representing the defendant, Asked to be permitted to withdraw as counsel, which was allowed; and Thaddeus A. Adams, substitute counsel for the defendant, continuing the special appearance, asked for a continuance of the motion originally made by defendant for dismissal of the action.
On December 8, 1943, the following judgment was rendered by His Honor, Frank M. Armstrong, Judge Presiding over the Regular Term, November 22, 1943, of Mecklenburg Superior Court, purporting to be based on consent of parties, over the protest of defendant, who had withdrawn her consent:
'The above-entitled cause coming on to be heard and being heard before His Honor, Frank M. Armstrong, Judge Presiding over the Regular November 22, 1943 Term of the Superior Court for Mecklenburg County, and being heard upon the Special Appearance and Motion therein filed by the defendant for dismissal of this action upon the ground that proper service was not had upon her, and that the action was tried at the March 29th, 1943 Term of the Superior Court for Mecklenburg County wherein the last notice of publication was had on the 4th day of March, 1943 and being heard also upon the motion of the plaintiff to be permitted to amend his affidavit of publication by adding thereto, 'that the defendant, after due diligence, cannot be found within the State of North Carolina,' and it appearing to the Court that the plaintiff is entitled to amend his said affidavit, and that thereupon the motion of the defendant should be denied:
'It is, upon motion of Carswell & Ervin, attorneys for the plaintiff, Ordered, Adjudged and Decreed that the plaintiff be, and he hereby is permitted to amend his affidavit of publication and the same is, by this Order, so amended so as to add thereto 'that the defendant, after due diligence, cannot be found within the State of North Carolina,' and the motion of the defendant to dismiss this action upon the ground hereinbefore set forth be and the same is hereby denied:
'And it appearing to the Court that there was born of the marriage of the plaintiff and the defendant a son, Arthur Loel Rodriguez, Jr., age 11 years, and that it has been agreed between the parties to this action that his custody shall be divided between the parties to this action during his minority in the following manner:
'The custody of said child shall remain with the father, the plaintiff in this action, until the 15th day of July, 1944, at which time the custody of said child shall be with the mother, the defendant in this action, until the 15th day of July, 1945 when the custody of said child shall be with the father for the next 12 months and thereafter the parties shall alternate in having custody of said child, each one for 12 months at a time; that the plaintiff shall provide transportation for said child to and from the residence of the defendant in order that he and she may be placed in custody of the child, as contemplated by this judgment; that during such time that the child is in the custody of the defendant, the plaintiff shall pay to her the sum of $30.00 each month to be used for the support, maintenance and education of said child; that during the time that the plaintiff has custody of said child under this judgment, he shall keep the child in the State of North Carolina, and that during such time as the defendant has custody of said child under the terms of this judgment, she shall keep the child in the State of Florida, the provisions of this sentence being subject to the further orders of this Court after due notice to the parties in this action:
'It Is Further Ordered that neither of the parties to this action shall bring any proceeding in any Court for the custody of said child, and that the Superior Court of Mecklenburg County shall retain and have sole jurisdiction with respect thereto.
'The defendant hereby accepts service of summons and complaint in this action as of February 11, 1943 and it is hereby...
To continue reading
Request your trial