EVE GYGER, Plaintiff v. QUINTIN CLEMENT, Defendant
No. 31PA19
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 14 August 2020
On discretionary review pursuant to
George Daly and Anna Daly for plaintiff-appellant.
D. Martin Warf for defendant-appellee.
In this case we decide whether an affidavit under
Between 1997 and 1999, plaintiff-mother Eve Gyger and defendant-father Quintin Clement were involved in a romantic relationship in North Carolina. In 2000, the parties had two children who were born in Geneva, Switzerland. In October 2007, plaintiff initiated an action in the Court of First Instance, Third Chamber, Republic and Canton of Geneva against defendant to establish paternity and child support. Defendant did not appear, and the Swiss court entered judgment against defendant on both counts.
In May 2014, the Swiss Central Authority for International Maintenance Matters applied to register and enforce the Swiss support order with the North Carolina Department of Health and Human Services, Office of Child Support and Enforcement. The Guilford County Clerk of Court registered the Swiss support order for enforcement on 13 June 2016. Defendant was served with a Notice of Registration of Foreign Support Order on 20 June 2016. On 1 July 2016, defendant filed a Request for Hearing to, among other things, vacate the registration of the foreign support order. After a hearing in District Court, Guilford County, the trial court vacated the registration of the foreign support order under
On 26 July 2017 plaintiff filed a Motion for Relief from the trial court‘s order under
The Court of Appeals affirmed the trial court‘s ruling denying plaintiff‘s Rule 60(b) motions for relief from the order vacating the registration of her foreign support order. Gyger v. Clement, 263 N.C. App. 118, 130, 823 S.E.2d 400, 409 (2018). The court based its decision on this Court‘s ruling in Alford v. McCormac, 90 N.C. 151, 152-53 (1884), that an essential element of an affidavit is an oath administered by an officer authorized by law to administer it. Gyger, 263 N.C. App. at 125, 823 S.E.2d at 406. The Court of Appeals thereby interpreted
Plaintiff petitioned this Court for discretionary review, and this Court allowed review as to the issue of whether
We hold that the trial court erred by not admitting into evidence plaintiff‘s affidavit under
Chapter 52C of the North Carolina General Statutes, the “Uniform Interstate Family Support Act,” applies to situations involving child support with parties residing outside of this State. Within Chapter 52C the General Assembly chose to provide “Special Rules of Evidence and Procedure” to accommodate those special circumstances which arise when parties reside outside of North Carolina.
[a]n affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this State.
Defendant argues that this provision continues to require affidavits filed under it to be notarized. As with any question of statutory interpretation, the intent of the legislature controls. Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001). “The best indicia of that intent are the language of the statute[,] . . . the spirit of the act[,] and what the act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm‘rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980).
Subsection 52C-3-315(b)‘s plain terms do not require notarization. The provision instead simply requires an “affidavit” to be “given under penalty of perjury.” Our case law, however, generally expects affidavits to be notarized if they are to be admissible. See, e.g., Alford v. McCormac, 90 N.C. at 152-53.
Nevertheless, the General Assembly has the power to make exceptions to general rules for special circumstances as it sees fit. It did so with the provision relevant to this case. In 2015 the legislature expanded subsection 52C-3-315(b) from applying only to parties in other states to applying to parties outside of this State. Compare
[s]ubsections (b) through (f) provide special rules of evidence designed to take into account the virtually unique nature of interstate proceedings under this act. These subsections provide exceptions to the otherwise guiding principle of UIFSA . . . . Because the out-of-state party, and that party‘s witnesses, necessarily do not ordinarily appear in person at the hearing, deviation from the ordinary rules of evidence is justified in order to assure that the tribunal will have available to it the maximum amount of information on which to base its decision.
When the legislature expanded the statute to apply to international residents, it recognized the difficulties that parties may face when dealing with child support claims in this State. Other nations have legal practices and traditions significantly different from those of our own, and thus in certain locations obtaining notarization of affidavits
Not surprisingly, then, subsection (b) is not the only place where the General Assembly made appropriate accommodations to address the special circumstances arising in child support cases involving out-of-state parties. Subsection 52C-3-315(f), for example, permits depositions of out-of-state parties and witnesses to simply be taken “under penalty of perjury” by telephone or other electronic means.
Though the preceding analysis of legislative intent is sufficient to discern that the subsection at issue does not require notarization, additional evidence bolsters this conclusion. Since the statute substantially mirrors the 2008 Model UIFSA2, see Uniform Interstate Family Support Act § 316 (2008), we may reference the commentary to the Model UIFSA for further evidence of statutory meaning. Though an oath was once required by the model statute, that requirement was removed in 2001. Unif. Interstate Fam. Support Act § 316 (2001). The comment to the 2001 Model UIFSA explains that the change “replaces the necessity of swearing to a document ‘under oath’ with the simpler requirement that the document be provided ‘under penalty of perjury’ . . . .” Id. at § 316 cmt. Thus, the uniform law provision on which subsection 52C-3-315(b) is based does not require an oath if the affidavit is submitted under penalty of perjury.
The legislature has the ability to explicitly require an oath if it deems it necessary, and it has done so in other provisions within Chapter 52C. For example,
Allowing affidavits into evidence in accordance with a proper interpretation of the statute here is not likely to harm trial court processes. An affidavit serves to convey information from the signing party in a form that attests to the statement‘s credibility. In 2004, Black‘s Law Dictionary defined an affidavit as “a voluntary declaration of fact written down and sworn to by the declarant before an officer authorized to administer oaths.” Affidavit, Black‘s Law Dictionary (8th ed. 2004). Eventually, though, the definition was changed to “a voluntary declaration of fact written down and sworn by a declarant, usu[ally] before an officer authorized to administer oaths.” Affidavit, Black‘s Law Dictionary (10th ed. 2014) (emphasis added). This change contemplates that affidavits may be valid and acceptable in some circumstances even when not sworn to in the presence of an authorized officer.
One such circumstance is when an affidavit is submitted under penalty of perjury. Affidavits without notarization may still be substantially credible. When a statement is given under penalty of perjury, it alerts the witness of the duty to tell the truth and the possible punishment that could result if she does not. “The form of the administration of the oath is immaterial, provided that it involves the mind of the witness, the bringing to bear [of the] apprehension of punishment [for untruthful testimony].” United States v. Looper, 419 F.2d 1405, 1406 (4th Cir. 1969).
Accordingly, in federal court proceedings too, written declarations made under penalty of perjury are permissible in lieu of a sworn affidavit subscribed to before a notary public. See
Because petitioner submitted her affidavit under penalty of perjury, she was made
Asserting to the contrary, defendant and the Court of Appeals relied on cases which did not involve special rules of evidence due to special circumstances. None involved international parties or triggered the statutory provision applicable in this case. See Alford, 90 N.C. at 152-53 (holding that an affidavit verifying a complaint is not complete until it is certified by the officer before whom the oath was taken); Ogburn v. Sterchi Bros. Stores, 218 N.C. 507, 508, 11 S.E.2d 460, 461 (1940) (holding that a statement followed by an unsigned, unsealed, and unauthenticated statement was not an affidavit when seeking authorization to sue as a pauper); In re Adoption of Baby Boy, 233 N.C. App. 493, 500-02, 757 S.E.2d 343, 347-48 (2014) (holding that a critical part of an acknowledgement under oath was that the word “swear” was administered to the witness in the presence of a notary when relinquishing parental rights). Rather, each case involved affidavits used in more standard proceedings that do not implicate a special statutory procedure adopted by the General Assembly to address situations when parties reside out-of-state or out-of-country.
In recognition of the unique nature of these types of proceedings the General Assembly enacted an exception to the usual notarization requirement, and for that reason subsection 52C-3-315(b) does not require that an affidavit given under penalty of perjury be notarized to be admissible. Plaintiff‘s affidavit is admissible because it was executed under penalty of perjury as allowed by subsection 52C-3-315(b). We therefore reverse the decision of the Court of Appeals and remand the case to that court with instructions to remand to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.