155 S.E.2d 290 | N.C. | 1967
Elizabeth Wright FLEEK
v.
John Sherwood FLEEK.
Supreme Court of North Carolina.
*291 Powe, Porter & Alphin, by E. K. Powe and Willis P. Whichard, Durham, for plaintiff appellant.
Purrington, Joslin, Culbertson & Sedberry, by William Joslin, Raleigh, for defendant appellee.
HIGGINS, Justice.
The plaintiff has insisted the service of process outside the State of North Carolina, under G.S. § 1-98.2(3), gave the Court authority to enter judgment against the defendant, for the support of the children, although he is either in Switzerland or Italy. The statute provides:
"Service of process by publication or service of process outside the State may be had in the following kinds of actions and special proceedings:
(3) Those for annulment of marriage, divorce, adoption or custody of a minor child, or for any other relief involving the domestic status of the person to be served; * * *"
The plaintiff was a resident of North Carolina. The parties were married in this State and had lived here as husband and wife. Undoubtedly the Court had jurisdiction of the plaintiff and of the marriage *292 status, and authority to grant the divorce. The children were before the Court in the actual custody of the plaintiff and the Court unquestionably had authority to award custody to her. The defendant's domestic status as a party to the marriage (a proceeding quasi in rem) was before the Court for adjudication. In a proper case, the Court may acquire jurisdiction of a non-resident defendant's rights to property in this State by attachment or by garnishment, but the Court is without power to enter a judgment in personam unless and until the defendant is before the Court in person, that is, by personal service of process, or by a general appearance before the Court. The terms of the statute relating to the "domestic status of the person to be served" do not give the Court authority to render a personal judgment. A judgment in personam on such service would violate due process which requires actual notice and an opportunity to be heard.
Service of process by publication is in derogation of common law rights and the statute providing for such service must be strictly construed. Harrison v. Hanvey, 265 N.C. 243, 143 S.E.2d 593; Jones v. Jones, 243 N.C. 557, 91 S.E.2d 562; Board of Com'rs of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d 144. In Surratt v. Surratt, 263 N.C. 466, 139 S.E.2d 720, this Court stated:
"We hold, under the facts revealed by the record, the defendant was a non-resident of North Carolina at the time service of process was made upon him outside the State and that the judgment entered against the defendant at the December Session 1963 of the Superior Court of Randolph County was not a judgment in personam, and that the orders adjudging the defendant in contempt for failing to comply therewith were improvidently entered and are hereby reversed and set aside."
In the case of Lennon v. Lennon, 252 N.C. 659, 114 S.E.2d 571, this Court stated that the full faith and credit clause of the Federal Constitution does not entitle a judgment in personam to extra-territorial effect when such judgment is rendered without jurisdiction over the person sought to be bound. In adopting the language in the case of May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221, this Court stated:
"It is now too well settled to be open to further dispute that the `full faith and credit' clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound."
Lee, in his work, North Carolina Family Law, Sec. 99, states:
"* * * while a divorce decree may be entitled to full faith and credit in all states so far it affects a dissolution of the marriage, yet it may be invalid with respect to economic or property incidents of the marriage.
A valid divorce which has been obtained in the state of domicile of only one of the parties through the use of constructive or substituted service of process, is not entitled to full faith and credit with respect to an adjudication or destruction of personal and property rights incidental to the marriage relation. The court must gain jurisdiction in personam over the defendant, as by a general appearance or personal service within the divorcing state, in order to adjudicate separable personal rights and duties." (Citing numerous cases in footnote.)
A pertinent statement of the rule concerning jurisdiction over an absent father-husband is contained in 24 Am.Jur.2d, Divorce and Separation, Sec. 828, as follows:
"While a court may gain jurisdiction to grant a divorce on constructive service, it cannot gain jurisdiction upon such a service which will support a judgment binding the party served personally, at least not if he is a non-resident."
*293 In 24 Am.Jur.2d, Divorce and Separation, Sec. 542, after stating that a court may enter a valid judgment of divorce without ever acquiring jurisdiction over the person of the defendant, it is then stated:
"Such jurisdiction, however, although sufficient to support a decree changing the marital status, will not necessarily sustain a judgment for alimony and costs. A decree for the payment of money as alimony or for the payment of costs is void in the absence of actual jurisdiction over the person or property of the one against whom it is awarded."
For the reasons assigned and upon the basis of the authorities cited and many others of like import, the judgment of the Superior Court of Durham County is
Affirmed.
