Whitehead v. Whitehead

• Decision Date: 12 January 1972
• Docket Number: No. 717DC647,717DC647
• Citation: 185 S.E.2d 706,13 N.C.App. 393
• Parties: Janet B. WHITEHEAD v. Charles D. WHITEHEAD.
• Court: North Carolina Court of Appeals

Page 706

185 S.E.2d 706

13 N.C.App. 393

Janet B. WHITEHEAD v.Charles D. WHITEHEAD.

No. 717DC647.

Court of Appeals of North Carolina.

Jan. 12, 1972.

Battle, Winslow, Scott & Wiley by Charles F. Lee and Samuel S. Woodley, Rocky Mount, for plaintiffappellee.

Bridgers & Horton by H. Vinson Bridgers and T. Perry Jenkins, Tarboro, for defendantappellant.

HEDRICK, Judge.

The defendant first contends that since his children had never been residents of the State of North Carolina the clerk of the superior court lacked jurisdiction to enter the order dated 11 June 1969 regarding their support.We do not agree.

G.S. § 1--247(now G.S. § 1A--1,Rule 68.1(a)) in pertinent part provided:

'A judgment by confession may be entered for alimony or for support of minor children, and when the same shall have been entered as provided by this article, such judgment shall be binding upon the defendant, and the failure of the defendant to make any payments, as required by such judgment, shall, upon proper cause shown to the court, subject him to such penalties as may be adjudged by the court. . . .'

Nonresidents have the right to bring an action in our courts as one of the privileges guaranteed to citizens of the several states by the Constitution of the United States, Article IV, Section 2.Howle v. Twin States Express, Inc., 237 N.C. 667, 75 S.E.2d 732(1953);Merchants & Planters Nat. Bank v. Appleyard, 238 N.C. 145, 77 S.E.2d 783(1953);Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371(1958).

In Thomas v. Thomas, Supra, Denny, J., later C.J., quoted with approval from Goddman v. Goodman, 15 N.J.Misc. 716, 194 A. 866, as follows:

"So far as jurisdiction over the defendant is concerned, the cause of action differs in no respect from a creditor's cause of action for collection of an ordinary debt. . . .

'The common-law obligation of a man to support his wife follows him wherever he goes, and if he comes to New Jersey he is liable also for the support of his children under our statutory provisions.If this court secures jurisdiction over his person, or seizes his property located in this state, it may enforce both of these obligations against his person or his property as the case may be, whether wife or children be domiciled in New Jersey or elsewhere. . . ."

We think it is clear that having obtained In personam jurisdiction of the defendant, the clerk had jurisdiction to enter an order providing for the support of the defendant's children even though the children were nonresidents of the State.

The defendant next contends that the 'confession of judgment signed by the defendant, Charles D. Whitehead, was fatally defective in that the defendant failed to state the amount for which the judgment may be entered', and that the order of the assistant clerk of the superior court entered pursuant thereto is void.In Pulley v. Pulley, 255 N.C. 423, 121 S.E.2d 876(1961), the North Carolina Supreme Court held that where a husband ratifies, accepts, or acquiesces in a decree of alimony by confession, he is estopped, in absence of a showing of fraud, mistake or oppression, to challenge the validity of the judgment on the grounds of informalities or irregularities in either the confession of judgment or the decree itself.

In the present casethe defendant does not contend that there was any fraud, mistake or oppression regarding the entry of the judgment dated 11 June 1969; moreover, there is evidence in the record that he ratified, accepted and acquiesced in the judgment by making payments into the office of the clerk pursuant thereto.

The record reveals that on 1 and 2 September 1970the defendant moved in the District Court of Edgecombe County to have the order of the Clerk of Superior Court of Edgecombe County, dated 11 June 1969, vacated and set aside on the grounds that the clerk lacked jurisdiction to enter the order and...