209 N.C. App. 616
N.C. Ct. App.2011Background
- Plaintiff Anthony Hammond filed for child custody, child support, and equitable distribution in North Carolina after relocating from Japan; Defendant Naoko Hammond is a Japanese national who remained in Japan with the children after visiting NC; the couple had three minor children and resided in NC before leaving for Japan in May 2008; Plaintiff attempted service of process abroad via the Hague Convention through the Japanese MFA, with service eventually completed on Defendant's mother in Japan at an address shared with Defendant; Defendant moved to dismiss for lack of personal and subject matter jurisdiction, arguing improper service and lack of home-state for custody purposes; the trial court found service proper under Hague and NC rules, and North Carolina was the children’s home state, denying both Rule 12(b)(1) and Rule 12(b)(2) motions and the motion to stay appellate proceedings.]
- Procedural Posture: Plaintiff sought initial custody determination; the trial court denied Defendant’s motion to dismiss; Defendant appealed the denial of both personal and subject matter jurisdiction challenges; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of process complied with Hague Convention and NC rules governing service abroad | Hammond argues service complied via Hague procedure and Central Authority proof | Hammond failed to serve under tokubetsu sôtatsu or NC rules; service to mother at work address was improper | Service valid; personal jurisdiction proper |
| Whether NC has home state jurisdiction for initial child-custody determination under UCCJEA | NC was the home state within six months before filing; children resided in NC for over two years prior to departure | Children did not reside in NC for six consecutive months immediately before filing; Japan was home state | NC qualifies as home state under UCCJEA; court has subject matter jurisdiction |
Key Cases Cited
- Jester v. Steam Packet Co., 131 N.C. 54 (1902) (due process and notice sufficiency for service)
- Schlunk v. Volkswagenwerk, 486 U.S. 694 (1988) (Hague Service Convention governs service abroad; forum law governs when occasion to transmit arises)
- Hart v. Hart, 74 N.C.App. 1 (1985) (home-state analysis under prior UCCJA; NC had been home state despite absence)
- Chick v. Chick, 164 N.C.App. 444 (2004) (temporary absence under totality of circumstances test for home state)
- Schrock v. Schrock, 89 N.C.App. 308 (1988) (absence duration prior to custody action can be temporary with long prior NC residency)
- Pheasant v. McKibben, 100 N.C.App. 379 (1990) (absence length preceding custody action deemed temporary given prior NC residence)
- Huggins v. Hallmark Enterprises, Inc., 84 N.C.App. 15 (1987) (distinguishes dormant summons vs. proper service in foreign context)
- Tataragasi v. Tataragasi, 124 N.C.App. 255 (1996) (recognizes Rule 4(j3) liberal approach to service abroad)