Shaver v. Shaver

• Decision Date: 09 April 1958
• Docket Number: No. 667,667
• Citation: 102 S.E.2d 791,248 N.C. 113
• Court: North Carolina Supreme Court
• Parties: Mary K. SHAVER v. Floyd N. SHAVER.

Page 791

102 S.E.2d 791

248 N.C. 113

Mary K. SHAVER v. Floyd N. SHAVER.

No. 667

Supreme Court of North Carolina.

April 9, 1958

Haywood & Denny, Durham, for plaintiff, appellant.

E. C. Bryson, Durham, amicus curiae.

JOHNSON, Justice.

This is a proceeding initiated by the presiding Judge on his own motion for the purpose of opening a judgment of absolute divorce rendered at the May Term, 1946, of the Superior Court of Durham County in the case entitled 'Mary K. Shaver v. Floyd N. Shaver.' The cause was heard below on special appearance of the plaintiff, Mary K. Shaver (Carpenter), and motion to quash the attempted service of notice by publication on her.

This is the fourth appeal to this Court involving efforts to vacate the judgment of divorce.

In Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617, Stanley M. Carpenter, the second husband of Mary K. Shaver (Carpenter), instituted an action to have his marriage annulled on the ground that the divorce obtained by his wife was a nullity because of fraud and collusion practiced on the trial court by the parties to the divorce action. The plaintiff Carpenter alleged that the wife having sworn falsely in her pleadings and at the trial that she and her former husband had lived separate and apart for two years before the commencement of the divorce action, the court failed to acquire jurisdiction of the cause (G.S. § 50-6), and that therefore the decree of divorce was void and of no effect. The Carpenter attack failed, however, because the alleged defects nowhere appeared on the face of the record; whereas all the necessary jurisdictional facts did appear of record, thus requiring evidence aliunde to establish Carpenter's allegations. This being so, the judgment at most was voidable and not void. Accordingly, it was not subject to collateral attack by Carpenter in his independent action. Thus the Carpenter collateral attack failed.

Next, we had for consideration an appeal wherein Carpenter had moved directly in the Shaver v. Shaver cause to vacate the judgment on the same grounds alleged in his independent action. Both Shavers appeared specially and moved to dismiss on the ground that they had not been served properly with notice of the motion. The lower court overruled the motion. This Court noted that Carpenter, not being party or privy to the divorce action, was not a competent person to challenge the decree. The ruling below was reversed by this Court under ex mero motu application of the well established rule that strangers to the record ordinarily have no standing on which to base an application to vacate a judgment. Shaver v. Shaver, 244 N.C. 309, 93 S.E.2d 614.

Carpenter's third effort to vacate the judgment was by a second motion in the Shaver v. Shaver cause, made while the proceedings involving his first motion were on appeal to this Court. After the appeal was taken, Carpenter through counsel moved in the cause that the trial court proceed upon its own motion to inquire into the validity of the judgment and declare it null and void. Again, attorneys for the Shavers appeared specially and moved to dismiss the Carpenter motion on the ground that the purported service of notice on them by publication, both of them being nonresidents of North Carolina, was invalid and that the court had not acquired juridiction over them, and hence that the court was without power to open the judgment. The motions to dismiss were overruled. Both defendants excepted and appealed to the Supreme Court. Notwithstanding the appeal, which rendered the court functus officio to deal further with the merits of the cause pending appeal, the presiding Judge entered an order citing the plaintiff, Mary K. Shaver (now known as Mary K. Carpenter and as Mrs. Stanley M. Carpenter), and the defendant, Floyd N. Shaver, to appear and show cause why the original judgment of divorce should not be declared null and void and vacated for alleged fraud and collusion practiced on the court by the Shavers. The court directed that notice of the show cause order be served on the original parties by publication. Again, they specially appeared by counsel and moved to quash the order and proceedings for want of jurisdiction of both parties and subject matter. the motions to dismiss were not ruled upon. The court proceeded to hear the matter, principally on ex parte affidavits presented to the court in Chambers by counsel previously appearing for Stanley M. Carpenter, then recognized by the court as appearing amici curiae. On the evidence presented, the trial court found facts and entered judgment declaring the divorce judgment void ab initio and decreeing that it be vacated. On appeal to this Court, the judgment below was reversed. We did not reach the merits of the case. The reversal was rested on procedural grounds--that the trial court was functus officio to deal with the merits of the case pending appeal to this Court. Shaver v. Shaver, 244 N.C. 311, 93 S.E.2d 615.

We come now to consider the fourth proceeding instituted for the purpose of vacating the judgment--the proceeding from which the instant appeal comes.

On 13 June, 1957, Judge Williams, then presiding over a criminal term of Superior Court, entered an order opening the original divorce case. The order, entered ex mero motu by Judge Williams, contains these recitals: (1) that a number of affidavits had been presented to the court by the district solicitor, alleging in gist that the plaintiff and the defendant did not live separate and apart during the two-year period before the commencement of the action as alleged in the complaint, but on the contrary, that the parties in fact lived together as man and wife during extended periods of time, both during 1944 and 1945; (2) that if the matters alleged in the affidavits are true, the allegations of the complaint in the divorce action and the admissions in the answer are false and were used by the parties for the purpose of perpetrating fraud and collusion on the court, in representing that they had lived separate and apart for the requisite two-year period, when in fact they had not, and that therefore the court never acquired jurisdiction of the divorce action, and the judgment entered therein is void and should be set aside; (3) that at the March, 1957, Term of Superior Court the grand jury returned a true bill charging the plaintiff, Mary K. Shaver (Carpenter), with the crime of bigamous cohabitation following her purported marriage to Stanley M. Carpenter after the entry of the foregoing judgment of divorce; (4) that the court is 'of the opinion that the questions raised as to the validity of the judgment of divorce * * *, and as to whether a fraud has been perpetrated upon the court, should be resolved and set at rest * * *,' but that the plaintiff and the defendant should be heard, or given an opportunity to appear before entering a final order as to the validity of the judgment. And thereupon it was ordered and decreed by the court that the plaintiff and the defendant appear before Judge Williams at the courthouse in Durham on 27 June, 1957, at 2:30 o'clock p. m., 'or as soon thereafter as the matters can be heard, and show cause' why the judgment of divorce entered 27 May, 1946, should not be 'vacated, set aside and declared null and void for failure of the court to acquire jurisdiction of the subject matter of the action.' The order directed that a copy be served on the plaintiff and on the defendant.

The clerk's fiat directing the Sheriff of Durham County to serve the order on the plaintiff and defendant was returned with the notation that neither party, after diligent search, could be found in Durham County. Deputy Sheriff Mangum by separate affidavit stated that in his investigation and inquiry in trying to serve the order he learned that both parties resided outside of the State, the plaintiff, Mary K. Shaver, at 1269 Federal Drive, Montgomery, Alabama; and the defendant in Leesburg, Lake County, Florida.

On 28 June, 1957, during a term of criminal court, Judge Williams entered an order continuing the hearing until 5 September, 1957, and ordering that the plaintiff and the defendant be served by publication as provided by G.S. § 1-99.2. On the same date, Judge Williams entered another order, finding that the assistance of counsel 'in the further investigation and presentation of this matter' is necessary, and directing that E. C. Bryson, Esq., of the Durham Bar, be 'appointed friend of the court to assist the court in the further investigation and presentation of this cause.'

On 2 July, 1957, E. C. Bryson as friend of the court filed an affidavit pursuant to G.S. § 1-98.4, alleging the facts in respect to the opening of the judgment by the entry of the order to show cause, and averring that, after due diligence, personal service of the order could not be had upon either the plaintiff or the defendant in the State of North Carolina. Based on this affidavit, the clerk entered an order directing that notice of the order to show cause be served on the plaintiff and the defendant by publication in the Durham Morning Herald, as provided by G.S. § 1-99.2. Notice, directed to the plaintiff and to the defendant, in compliance with the provisions of the statute, was prepared and signed by the clerk, notifying them of the entry of the show cause order, and requiring them to appear before the Judge of the Superior Court on 5 September, 1957, and show cause why the judgment of divorce entered 27 May, 1946, should not be vacated and set aside. Printer's affidavit, in compliance with G.S. § 1-102, was filed showing that the notice was published in the Durham Morning Herald for four successive weeks, beginning 4 July, 1957. The record also shows that copies of the order to show cause and all relevant orders, affidavits, and documents were mailed to the out-of-state addresses of the parties, and also to the firm of Haywood and Denny, attorneys, of Durham, who had appeared for ...