Counseling on paternity matters involves three subjects: Estoppel, tissue-testing, and trial procedures. The intent of this paper is to summarize the law in North Carolina as to paternity, not to review the requirements of service regulations (i.e., AR 608-99, etc.).
ESTOPPEL.Litigation as to paternity may be barred by a prior judicial determination establishing a soldier as the father of a child. The most common example of this is the adjudication of paternity that is present in most divorce decrees. An essential element of the complaint for absolute divorce in North Carolina (see G.S. 50-8) is a statement of the names and ages of the minor children born of the marriage. The judgment of divorce also contains a statement to this effect, and this is also true in many other states. The purpose of this requirement is to bar subsequent litigation of paternity matters that should have been settled in connection with the divorce pleadings. Accordingly, the court will ordinarily deny any attempt by the former husband to open up the issue of paternity as to the children shown to be his on the face of the divorce judgment.
The servicemember may also be estopped from litigating paternity if he has signed a paternity affidavit, an acknowledgement of paternity, a complaint for divorce (alleging that he is the father of a certain child born of the marriage), an answer admitting that he is the father of a certain child born of the marriage, or other such documents. Sometimes an order for custody or for child support will effectively bar the soldier from reopening the issue of paternity, especially if that matter could have been litigated in connection with the custody or support issue. For a more detailed explanation of estoppel and preclusion, see Sullivan, "Proving Paternity by Presumption and Preclusion," 132 Mil.L.Rev. 99 (1991).
When the mother is faced with a denial of paternity or an attempt to open up this issue, her best tactic in this situation is to challenge immediately the right of the man to raise the issue of paternity at this stage of the proceedings. In civil cases, this is by way of an affirmative defense or a "plea in bar" alleging collateral estoppel or res judicata.
From the standpoint of the member in this situation, the only course of action is to try to attack the validity of the matter asserted as estoppel. Perhaps the soldier was not served (personally or by publication) with the complaint for support or the petition for divorce. Possibly he was not given sufficient time to answer before a judgment was taken by plaintiff. Maybe he has a defense under the Soldiers' and Sailors' Civil Relief Act. In rare cases, the plaintiff obtains an order or judgment adjudicating the issue of paternity by fraud, coercion, undue influence, or collusion.
A change of heart by the soldier is seldom a defense. All too often, however, the proffered defense by the soldier amounts to: "She told me the kid was mine and I believed her; now that I have to pay child support, I don't believe her." Or, in the actual words of one commander replying to a complaint involving paternity and nonsupport, "We have reason now to question the legality of this child."
TISSUE TESTS. Under Chapters 8 and 49 of the North Carolina General Statutes, upon motion in a matter involving the paternity of a child, the court may order the mother, child and alleged father to submit to tissue-typing tests, formerly known as blood tests. The moving party is ordinarily required to pay the cost in advance. While blood samples used to be collected for this testing, it is common now to use skin cells from inside the mouth, collected with a cotton swab. For detailed information on DNA testing, check out the Department of State's website, www.travel.state.gov/dna.html.
The table below lists some diagnostic laboratories that perform issue test analysis in paternity cases. The tests produce an accuracy factor of about 99 percent (some claim as accurate as 99.9%), which (when translated into non-scientific terms) means that 99 out of a hundred falsely accused men will be excluded from paternity.
|1440 York Court Extension
Burlington, NC 27215
Phone: (800) 742-3944
|Fees as of 10/15/01: Please contact LabCorp for current rates: $210 per person when mother, child and alleged father are tested (includes specimen collection)
$315 per person when only child and alleged father are tested (includes specimen collection)
$200 per person in addition to
$210 per person for STAT case results (5 calendar days)
|LabCorp's Identity Department utilizes over 900 specimen collection facilities throughout the United States. Upon account set-up, LabCorp will identify the facility nearest to your location and make all specimen collection arrangements.|
|Genetic Design, Inc.||http://www.informagen.com/Resource_Informagen/Full/241.html|
|7017 Albert Pick Road
Greensboro, NC 27409-9654
|Phone: (336) 668-3210
Fax: (336) 665-3966
|Fees upon request||Genetic Design Inc. provides paternity testing services in the United States.|
|P. O. Box 3015
Chapel Hill, NC 27515-3015
|Phone: (800) 277-4363|
|Fees upon request||GeneCare offers 7-10 days turnaround time, expert witness testimony, strict chain of custody procedures for court evidence, and international service.|
|12277 134th Court N.E.
Redmond, WA 98052
|Phone: (800) 523-3080|
|Fees as of 10/15/01: Please contact Genelex for current rates:$475 for standard legal test||Genelex offers 10-day turnaround and STAT results in one day. Has implemented state-of-the-art technology in high throughput and robotic sample handling allowing for across-the-board improvement in services.|
|DNA Diagnostics Center||
|205 Corporate Court
Fairfield, OH 45014
Phone: (800) 613-5768Fax: (513) 881-7803
|Fees as of 10/17/01: Please contact DNA Diagnostics Center for current rates:
$420 for Standard (1 child, 1 alleged father with/without mother tested)
$475 for urgent 5 working day service
$695 Concorde 3 working day service
$1,390 Unique 1 working day service
|DNA Diagnostics Center has a standard 9- business day turnaround time, but can handle urgent testing needs as well. They state that they will arrange for partial payments/payment plans, but payment must be received in full before test results will be released. Prenatal DNA paternity testing may also be performed.|
The cost of testing depends on the tests performed and whether the case is one handled under the IV-D Program or not. A quick call to the above phone numbers will allow the legal assistance attorney to give some guidelines to the client on costs.
Accurate identification is necessary for all individuals taking the tests. The mother and child are often tested at a difference place and/or time than the alleged father. When the test results are returned, the usual situation is that the man is either excluded (zero percent probability of paternity) or he is "strongly included," meaning that the probability of paternity is in excess of 97 percent. When the probability of paternity is 97% or greater, there is a presumption of paternity for the alleged father; when the probability of paternity of less than 85%, there is a presumption of non-paternity under NCGS 8-50.1 (B1). With such results available, it is now much easier to counsel the mother or the alleged father as to matters involving paternity, child support, inheritance rights, medical history, and the like.
It is important to remember, however, that the tissue tests do not "prove" paternity -- they merely indicate whether a man is "included" in the group of men with such genetic characteristics so as to qualify them by blood type to be the father of the child. Pure "proof" of paternity is, in reality, in the eyes of God, at least with the tests that we have available at present. It is still possible to contest and "beat the case" in paternity matters with a probability of paternity in excess of 99 percent.
CIVIL NONSUPPORT ACTIONS. A civil action for paternity, like a bastardy action, is brought under NCGS Chapter 49. All of the usual techniques of discovery are available to both sides in a civil action. A certified copy of the birth certificate of the child must be attached to the Complaint. The defendant has a right to trial by jury in civil district court if timely requested. The jury of twelve must decide unanimously that the case is proven against the defendant by clear, cogent and convincing evidence. Civil paternity trials are expensive and time-consuming to prosecute or defend. Reasonable attorney's fees may be awarded to the mother if she prevails and is able to show that she is without the means to defray the legal expenses of the action, in the discretion of the court.
Techniques of trial will vary from case to case. In addition to tissue-testing results, the alleged father may attempt to prove lack of access or that the mother was living in open and notorious cohabitation with another man, so as to show that the defendant is unlikely to be the father of the child. The mother, on the other hand, may try to use the facial features and physical appearance of the child (especially if the child is not an infant), and his or her resemblance to the alleged father, in conjunction with tissue-testing results to establish paternity at trial.
Trial of a paternity and nonsupport case can be lengthy, complex and expensive. Many mothers rely on the child support enforcement agency to handle such a case, rather than relying on private counsel.
When counseling the alleged father, be sure to advise him of the importance of acknowledging paternity, paying support, and communicating with the mother and/or child if he wishes to prevent the adoption of the child. Under G.S. 48-3-603 and 48-2-206, consent of the putative father is required if he has:
· acknowledged his paternity of the child, and
· has provided (consistent with his financial means) reasonable and consistent payments-
for the support of the mother during or after the pregnancy,
or the support of the child,
or both (including medical expenses, living expenses or other tangible means of support), and
· has regularly visited or communicated (or attempted to visit or communicate) with the mother during or after the term of pregnancy, or with the child, or with both of them.
If your client doesn't want the adoption to take place, he will need to be diligent in regard to these actions. It is VERY IMPORTANT that you read, digest and understand the most recent Supreme Court case in this area, In re Adoption of Byrd, 2001 LEXIS 934.
You also need to be able to counsel the alleged father as to service of process and jurisdiction regarding paternity and support. For a valid judgment of paternity, in personam jurisdiction over the defendant must be obtained. An in rem jurisdiction judgment is not entitled to full faith and credit. For a good starting point, read Brondum v. Cox, 292 N.C. 192, 239 S.E.2d 687 (1977).
The first outline below [APPENDIX 1] can help the legal assistance attorney (in some detail) with the problems and pitfalls present in establishing parentage. The second outline [APPENDIX 2] is an overview of the area of service of process and exercising jurisdiction in paternity cases. Both were provided by Gerry Robbins of the NC Attorney General's Office.
APPENDIX 1: PATERNITY ESTABLISHMENT AND DEFENSES
I. ESTABLISHMENT OF PATERNITY
A. N.C.G.S. § 110-132(a): Acknowledgment of paternity. In lieu of filing an action to have paternity established, the mother can sign a sworn statement that the putative father is the natural father and the putative father can sign a sworn statement that he is the natural father of the couple's minor child. When these documents are filed with and approved by a district court judge, paternity is established.
B. N.C.G.S. § 49-14: Civil Action To Establish Paternity
1. When the father of a child born out of wedlock does not voluntarily acknowledges paternity under N.C.G.S. § 110-132, a civil action to establish paternity can be initiated under 49-14 to have paternity established.
2. The action can be brought "at any time prior to the child's eighteenth birthday."
3. Proof of paternity is by clear, cogent and convincing evidence.
4. If the child is over 3 years of age, a tissue test must be done or else evidence must be presented that the putative father declined the opportunity for testing.
5. If the tissue-test results show a probability of paternity of less than 85%, then the defendant is presumed not to be the father. If the results are 97% of greater, there is a presumption of paternity. See N.C.G.S. 8-50.1 (b1) for details on presumptions and tissue-testing.
6. No action can be started nor judgment entered after the death of the putative father.
C. N.C.G.S. 49-10 and 49-12: Legitimization
1. Paternity is established when the putative father of a child born out of wedlock legitimates the child pursuant to the provisions of N.C.G.S. 49-10.
a. The putative father has to file a verified written petition with the Clerk of Superior Court.
b. The mother (if living) and the child are necessary parties.
c. The petition must contain the full name of father, mother and child.
Note: see In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985). Note, however, that where the mother is married to another man, the putative father must also join the mother's spouse as a necessary party and a guardian ad litem must be appointed to represent the child if the child is a minor. N.C.G.S. § 49-12.1
2. Paternity is established when the reputed father and mother shall intermarry. N.C.G.S. § 49-12. Stated differently, if he and the mother "regard," "deem," "consider" or "hold in thought" (either before or after marriage) that they are the child's parents, then the child is legitimate. Carter v. Carter, 232 N.C. 641, 61 S.E.2d 711 (1950); Chambers v. Chambers, 43 N.C. App. 361, 258 S.E.2d 822 (1979).
D. Compliance with N.C.G.S. 130A-101(f): Birth Registration
1. When a child is born to an unmarried woman, the father's name cannot be entered onto the birth certificate without "written consent of the father and mother under oath." State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, cert. denied, 407 S.E.2d 848 (1991). If the father, however states under oath that he is the father and has his name placed on the birth certificate, he will be estopped from denying paternity because of his admission under oath. Chambers v. Chambers, 43 N.C. App. 361, 258 S.E. 2d 822 (1979).
2. The defendant will still be estopped from denying paternity even if the affidavit signed was false. Id.
E. N.C.G.S. § 49-2: Nonsupport of Illegitimate Child
1. In a criminal action to seek support of an illegitimate child, paternity must first be established. State v. Coffey, 4 N.C. App. 133, 164 S.E. 2d 39 (1968). [Discussing elements of the offense]
2. Once established it does not need to be relitigated in subsequent prosecutions. Tidwell v. Booker, 390 N.C. 98, 225 S.E.2d 816 (1976).
3. A general verdict of guilty of willful nonsupport is sufficient as a finding of paternity. State v. Golden, 40 N.C. App. 37, 251 S.E.2d 875 (1979)
4. A general verdict of not guilty does not, however, adjudicate the issue of paternity. State v. Robinson, 236 N.C. 408, 72 S.E. 2d (1952).
II. DENIALS AND DEFENSES IN PATERNITY ACTIONS AND DENIALS
A. N.C.G.S. § 8-50.1: Tissue tests
1. The best defense that a putative father has in a paternity action is an exclusion on a tissue test. A mere statement that "I am not the father" is insufficient. N.C.G.S. § 8-50.1 grants the parties to a paternity action the right to a tissue test. State v. Fowler, 277 N.C. 305, 177 S.E. 385 (1970) ("There can be no doubt that a defendant's right to a tissue test to determine parentage is a substantial right and that, upon defendant's motion, the court must order the test when it is possible to do so").
2. Indigent defendants are entitled to a free tissue test.
3. The test cannot "prove" paternity. If defendant is included, it is up to the trier of fact to determine the weight given tissue tests. Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986).
4. The test is conclusive in excluding the putative father.
5. Where evidence showed that defendant was sterile at the time of conception of the child, the inclusionary probability had to be reduce to 0%. Cole v. Cole. 74 N.C. App. 247, 328 S.E.2d 446, aff'd, 314 N.C. 660, 335 S.E.2d 897 (1985).
B. Rebutting the Presumption of Legitimacy
1. If a child is born to a married woman's the husband's name must be placed upon the birth certificate. N.C.G.S. § 130A-101(e). Exception: If paternity "has been otherwise determined by a court of competent jurisdiction . . . the name of the father as determined by the court shall be entered." N.C.G.S. § 130A-101(e).
2. A husband who is not the biological father is generally called, the "legal father" because of N.C.G.S. § 130A-101(e).
3. A husband can rebut the presumption of legitimacy in several ways:
a. Where he has access to the wife-
(1) Tissue test exclusion. Wright v. Wright, 281 N.C. 159, 172, 188 S.E.2d 317 (1972). The court held that a tissue test excluding a presumed father from the class of persons capable of being the natural father is sufficient to rebut the presumed legitimacy of a child conceived during wedlock.
(2) No capacity to procreate. The defendant was sterile at the time of conception. Cole v. Cole, 74 N.C. App. 247, 328 S.E.2d 446, aff'd 314 N.C. 660, 335 S.E.2d 897 (1985).
(3) Possible racial or other distinct physical differences: Wright v. Wright, supra.
(4) Testimony by either husband or wife that they did not engage in sexual relations during the conception time period. N.C.G.S. § 8-572. [Warning: Get a tissue test; if the defendant had access, it will be presumed that he exercised his access. Wake County ex rel. Bailey v. Matthews, 36 N.C. App. 316, 224 S.E.2d 191 (1978)]; Exception: Wife and paramour (putative father) lived in "open and notorious adultery." This term means that the parties engaging in adultery resided together publicly as if marital relationship existed between them, and this as well as the fact that they are not husband and wife are both known in the community of their residence. Id. at 194.
b. Where Non-Access Exists
(1) Tissue test exclusion
(2) No capacity to procreate
(3) Racial or other distinct physical differences
(4) "Across the seven seas doctrine." At the time conception took place, the defendant (usually a service-member) was in another state, including overseas, on a ship or in any other location which would have prevented him from engaging in sexual relations with his spouse. N.C.G.S. § 8?57.2 would permit his testimony on this issue.
III. COLLATERAL ESTOPPEL AND RES JUDICATA IN PATERNITY CASES
A. The principles of res judicata and collateral estoppel precludes the relitigation of a claim or issue after a final determination on the merits by a court of competent jurisdiction. It applies to parties and persons in privity with parties.
B. Application in Paternity Cases.
1. When the mother and father execute the documents necessary to have paternity established under N.C.G.S. 110-132(a) and they are approved by the court, the issue of paternity is res judicata in any subsequent proceedings to enforce the support. Person County ex rel. Lassiter v. Holloway, 74 N.C. App. 734, 329 S.E.2d 713 (1985); Beaufort County v. Hopkins, 62 N.C. App. 321, 302 S.E.2d, 662 (1983).
2. Additionally, "when a judgment is rendered by a court having jurisdiction to do so finding paternity to exist, the relitigation of that issue by the parties to the original judgment is precluded." Williams v. Holland, 39 N.C. App. 141 (1978)
3. Once paternity has been established, res judicata precludes a trial court from ordering a tissue test. Holloway, supra.
4. If granted, tissue test orders will be vacated on appeal because the trial judge lacked authority to enter the order because that issue had been previously determined. McNeil v. Stevens, 101 N.C. App. 719, 400 S.E.2d 776 (1991).
5. If defendant is found not to be the father in an action brought by the mother, can he be assured that the matter is over? No--because there are two other "persons" that can bring an action.
a) Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976). The North Carolina Supreme Court held that defendant's prior criminal conviction under G.S. § 49-2 does not preclude him from relitigating the issue of paternity in a subsequent civil action brought by the mother to establish paternity and obtain support under G.S. §§ 49-14, 49-15 because the mother and child were not in privity with the State. In the state prosection, she was a mere witness and did not control the prior criminal prosection.
b) Settle v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983). There is no privity between the state and the mother of an illegitimate child, or between an illegitimate child and the county IV-D agency for purposes of re judicata/collateral estop in connection with two actions against the same putative father seeking to establish paternity.
C. Actions to establish paternity can be brought by the mother, the father, the child or the personal representative of the mother or the child, and the Director of Social Services or such person "as by law performs the duties of such official" N.C.G.S. 49-16.
IV. OTHER LIKELY DEFENSES
A. Statute of limitations (e.g., the child is 18 or older at the time the action is brought.) G.S. 49-14(a)
B. The Court lacks subject matter jurisdiction to determine paternity (e.g., plaintiff failed to attach certified copy of birth certificate.)
C. The Court lacks personal jurisdiction over the defendant.
D. Parental rights have been terminated, either by termination of parental rights action or entry of final order of adoption.
APPENDIX 2: PERSONAL JURISDICTION AND SERVICE OF PROCESS
IN PATERNITY ACTIONS
I. PERSONAL JURISDICTION
A. Brondum v. Cox, 292 N.C. 192, 239 S.E.2d 687 (1977).
1. Judgment of paternity can be rendered only by a court having in personam jurisdiction over the defendant.
2. Judgment of paternity entered incidental to in rem divorce proceeding is not entitled to full faith and credit
B. G.S. 1-75.4: Grounds for personal jurisdiction. (See attached)
1. Commonly referred to as "long-arm" statute.
2. Procedural, not substantive law
3. Liberally construed to give North Carolina courts full jurisdictional powers under federal due process requirements.
a. Two part due process test:
i. Do N.C. statutes permit exercise of in personam jurisdiction?
ii. Does exercise of in personam jurisdiction violate due process requirements?
b. Due process requires that Defendant have certain "minimum contacts" with North Carolina such that maintenance of paternity suit in North Carolina does not offend "traditional notions of fair play and substantial justice."
C. Specific Provisions of Jurisdiction Statute. (G.S. 1-75.4.)
1. Local Presence or Status. G.S. 1-75.4(1).
a. Natural person present in North Carolina.
The North Carolina Supreme Court ruled in Lockert v. Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987) that service of process upon a defendant within the state was sufficient to confer jurisdiction upon its courts. The Lockert decision holds that the minimum contacts tests of due process set forth in International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed.95 (1945) and later cases is inapplicable where the defendant is served in the forum state. The Court based its decision upon Pennoyer v. Neff, 95 U.S. 714 (1878).
* * ** * ** * ** * ** * ** * ** * ** * ** * ** * ** * *
The Breedlove holding has been applied in the following domestic relations cases:
-- Jenkins v. Jenkins, 89 N.C. App. 705, 367 S.E.2d 4 (1988) (Child support case)
-- Brookshire v. Brookshire, 89 N.C. App. 48, 365 S.E.2d 307 (1988)(Alimony, child support and custody)
-- Morris v. Morris, 91 N.C. App. 432 (1988 custody case; service upon non-resident defendant at place of business in North Carolina sufficient to confer jurisdiction)
Our appellate courts have reiterated that the mere ownership of property in North Carolina without something more is insufficient to establish jurisdiction over Defendant. In Carroll v. Carroll, 88 N.C. App. 453, 363 S.E. 2d 872 (1988), the Court of Appeals held that plaintiff's claim for equitable distribution of marital property must be dismissed for lack of jurisdiction over the defendant where the parties married in Washington, lived there for the duration of the marriage, and accumulated real and personal property there. Wife, after separation, left and moved to North Carolina, bringing with her property Defendant may have an interest in because of the equitable distribution statutes. Such facts without evidence that the defendant either brought the property to North Carolina or consented to the property being here, would not meet minimum contacts test. The Court, however, directs our attention to Holt v. Holt, 41 N.C. App. 344 255 S.E.2d 407 (1979) in which it held that a non-resident defendant's purchase of real property in North Carolina twenty-five days after being ordered to make payments to plaintiff-wife and divorce decree settling interest of parties in real and personal property located in North Carolina established sufficient minimum contacts.
b. Defendant is a natural person domiciled in North Carolina.
Sherwood v. Sherwood 29 N.C. App. 112, 223 S.E.2d 509 (1976). Defendant is domiciled or an inhabitant of the forum if he resides there actually and permanently.
c. Defendant is engaged in substantial activity within North Carolina.
Georgia R.R. Bank & Trust v. Eways, 46 N.C. App. 466, 265 S.E.2d 637 (1980). Mere ownership of property in forum state insufficient to establish "minimum contacts" for due process requirements.
2. Local Act or Omission. G.S. 1-75.4(3). Any action claiming injury to person or property arising out of act or omission of Defendant in North Carolina.
Sherwood v. Sherwood, supra. Action for alimony on ground of abandonment was "injury to person or property."
Brown v. Brown, 47 N.C. App. 323, 267 SE2d 345 (1980). Defendant's acts of living with and abandoning Plaintiff-wife in North Carolina met "minimum contacts" test in action for alimony, custody and support.
Miller v. Kite, 69 N.C. App. 679, 318 SE2d 102 (1984), 313 N.C. 474, 329 SE2d 663 (1985). According to Court of Appeals, minimum contacts satisfied by: Defendant's child living in North Carolina for 9 years with Defendant's consent; Defendant's sending support payments and visiting child in North Carolina; and Defendant's child attending public school in North Carolina. Supreme Court reversed stating such contacts were insufficient.
3. Local Services, Goods or Contracts G.S. 1-75.4(5)c.
Any action arising out of Defendant's promise made to Plaintiff or to third party for Plaintiff's benefit to deliver or receive within North Carolina goods, documents of title, or other things of value.
Pope v. Pope, 38 N.C. App. 328, 248 S.E.2d (1978). Money payments of support are a "thing of value".
Moore v. Wilson, 62 N.C. App. 746, 303 SE2d 564 (1983). Defendant's fathering of child and execution of acknowledgement of paternity and voluntary support agreement are sufficient to establish minimum contacts with North Carolina.
4. Special Jurisdiction Statutes. G.S. 1-75.1(2)
G.S. 49-17. Jurisdiction over nonresident or nonpresent persons (See attached).
a. Acts of sexual intercourse within North Carolina constitutes sufficient minimum contact to subject participants to jurisdiction of North Carolina courts for actions for paternity and support of child conceived as a result of such act.
b. Construed in additional to and not in lieu of other cases in G.S. 1-75.4.
c. Special Jurisdiction Statutes.
G.S. § 49-17 has been declared not to violate due process clause of the Fourteenth Amendment of the United States Constitution. In Cochran v. Wallace, N.C. App. , 381 S.E.2d 853 (1989), the Court of Appeals held that G.S. § 49-17, which subjects person who participates in an act of sexual intercourse within state to jurisdiction of state courts in paternity action did not violate due process. The Court reasoned that the statute satisfied the first prong of the two-prong test enunciated by our Supreme Court in Dillion v. Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977). [See Page 1 of this outline] The Court states that G.S. § 49-17 is a special jurisdiction statute creating jurisdiction "under very limited circumstances."
It is important to note that the Court of Appeals only found that this statute satisfies the first prong of the Dillion test. The Court concludes that "the intent of the statue is not to abrogate the second prong of the Dillion test. Rather, the statute simply creates special jurisdiction in situations arising out of these facts." Id. at 856. "The trial court must still inquire as to whether Defendant had certain minimum contacts with North Carolina such that 'traditional notions of fair play and substantial justice' are not offended." Id.
Also note that the Court found support for its position from sound public policy. The Court states that "[o]ur decision is supported by the fact that our courts have a legitimate interest in protecting our citizens under circumstances such as these. Moreover, it can neither be said that it is unfair or unduly inconvenient to require Defendant to defend this action in our forum. All of the crucial witnesses and the material evidence are situated within North Carolina." Id.
D. JUDGMENT AGAINST NONAPPEARING DEFENDANT, PROOF OF JURISDICTION. G.S. 1-75.11
Requires proof by affidavit or other evidence of facts not shown by verified complaint needed to establish grounds for personal jurisdiction over Defendant.
II. SERVICE OF PROCESS
A. G.S. 1A-1, Rules of Civil Procedure, Rule 4(j) and (j1). Process - Manner of Service to Exercise Personal Jurisdiction.
1. Whereas jurisdiction statute G.S. 1-75.1 is liberally construed, rules for service of process are strictly construed.
2. Unless specific requirements of rules are followed, no valid service.
Edwards v. Edwards, 13 N.C. App. 166, 185 SE2d 20 (1971). Where Plaintiff failed to file required affidavits concerning service by publication, court lacked jurisdiction over Defendant.
Boyles v. Boyles, 308 N.C. 488, 302 SE2d 790 (1983). Florida default judgment for alimony arrearages not entitled to full faith and credit where attempted service did not satisfy reasonable notice standard under Florida law and Defendant received no actual notice.
B. Specific provisions of service of process statute. G.S.1A-1 Rule 4(j).
1. Natural Person Not Under a Disability
G.S. 1A-1, Rule 4(j)(1).
a. Deliver copy of summons and complaint to Defendant or leave Defendant's dwelling house or usual place of abode with some person of suitable age and discretion residing therein.
Service on Defendant located in another state can be made by one authorized to serve process under laws of that state, i.e., New York permits anyone over 18 years to serve. Comment, G.S. 1A-1, Rule 4(j)(1)a. (See also G.S. 1-75.10(1) for proof of such service.]
Van Buren v. Glasco, 27 N.C.App. 1, 217 S.E.2d 579 (1975), overruled on other grounds in Love v. Moore, 305 N.C.App. 575, 291 S.E.2d 141 (1982). Defendant may have more than one dwelling house or usual place of abode.
Bowers v. Billings, 80 N.C.App. 330, 342 S.E.2d 58 (1986). Defendant and parents shared same dwelling and place of abode where they lived in separate houses 60 to 100 yards apart on same farm owned by parents.
b. Deliver a copy of summons and complaint to an agent authorized by appointment or law to be served or accept service of process or by serving process upon such agent or the Defendant in a manner specified by statue.
c. Mail copy of summons and complaint, registered and certified mail, return receipt requested [preferably restricted delivery] addressed to the party to be served and delivering to the addresses.
Waller v. Butkovich, 584 F Supp 909 (M.D.N.C. 1984). Rules does not specify that copy must be mailed to home or office, only that copy be sent by registered or certified mail addressed to Defendant, and delivered to addressee only.
2. Natural Person under Disability. G.S. 1, Rule 4 (j)(2). Requires service of process under Rule 4(j), plus the following:
a. Minors - serve upon parent or guardian having custody or, if none, upon the minor and a guardian ad litem appointed under Rule 17.
b. Incompetents - serve upon guardian or, if none, upon the incompetent and guardian ad litem appointed under Rule 17.
3. Service by Publication on Party that cannot otherwise is served. G.S. 1-A-1, Rule 4(ji).
a. Format for notice set out in Rule.
b. Publish once a week for 3 successive weeks in a newspaper qualified for legal advertising.
c. Newspaper circulated in area where Defendant believed to be located, or if no reliable information as to Defendant's location, in county where action is pending.
d. If Defendant's post office address can be obtained with reasonable diligence, mail copy of notice to Defendant at or immediately prior to first publication.
In re Clark, 76 N.C. App. 83, 332 SE2d 196, appeal dismissed, 314 N.C. 665, 314 SE2d 322 (1985). Service by publication appropriate only where Defendant's whereabouts unknown. Due diligence requirement is clear.
4. Acceptance of Service by Defendant. G.S. 1A-1, Rule 4(j5). Provides that Defendant may personally, or through persons provided in Rule 4(j), accept service. Requires notation of acceptance of service, signature of person accepting service, and date accepted on original or copy of summons.
5. Service in Foreign Country. See G.S. 1A-1, Rule 4 (j3).
B. G.S. 1.75.10. Proof of Service of Summons, Defendant appearing in action. Sets forth requirements of proving service when challenged by Defendant.
1. Personal Service or Substituted Personal Service. G.S. 1-75.10(1). Requires that:
a. If served in this state by sheriff or lawful process server, need officer's certificate showing place, time and manner or service
b. If served by other person, need affidavit showing items set forth in G.S. 1-75.10(1)b. If served outside state, proof may be in accordance with that state's law.
2. Registered or certified mail. G.S. 1-75.10(4). Requires affidavit of serving party that:
a. A copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested, [restricted delivery]; and
b. It was in fact received as evidenced by the attached registry receipt or other evidence of delivery to the addressee; and
c. The genuine receipt or other evidence of delivery is attached.
Registered or Certified Mail
In Hunter v. Hunter, 69 N.C. App. 649 (1984), although Defendant actually received notice, the Court held that because the affidavit and accompanying delivery receipt only showed that the summons was forwarded to Defendant's place of business, there was no showing that Defendant herself received a copy of the summons and complaint. Thus the requirement of G.S. § 1-75.10 had not been met. The Court stated, "[r]ecognizing the somewhat technical nature of the holding, we call attention to the importance of following statutes authorizing substituted service of process with particularity." Id. at 663. See also, Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982)(The Court held that failure to serve process in the manner prescribed by statute makes the service invalid, even though a defendant has actual notice of the lawsuit. Holt v. Holt, 41 N.C.App. 344, 255 S.E.2d 407 (1979), in which it held that a non-resident defendant's purchase of real property in North Carolina twenty-five days after being ordered to make payments to Plaintiff wife and divorce decree settling interest of parties in real and personal property located in North Carolina established sufficient minimum contacts.
3. Service by Publication. G.S. 1-75.10(2) requires:
a. Affidavit of printer, publisher, foreman, or principal clerk of paper showing notice of publication and date of first and last publication; and
b. Affidavit of person mailing copy of summons and complaint or notice of publication to Defendant.
C. G.S. 1A-1, Rule 4(j2). Proof of Service Before a Judgment by Default may be had.
1. Personal Service - Proof of service must be in accordance with G.S. 1-71.10(1).
2. Registered or Certified Mail.
a. Requires that prior to default judgment against Defendant served by registered or certified mail, affidavit must be filed pursuant to G.S. 1-75.10(4).
b. Further provides that if person who signed receipt was not addressee, presumption raised that person who received mail and signed receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of process or was a person of suitable age or discretion residing in the addressee's dwelling house or usual place of abode. [Compare with G.S. 1A-1, Rule 4(j)(1) b & c.]
c. G.S. 1A-1, Rule 4(j4). Provides that Defendant cannot attack default judgment on grounds that he could have been served by personal service rather than registered or certified mail.
3. Service by Publication.
a. Requires affidavit by serving party showing circumstances warranting use of service by publication, information used to determine location of Defendant for service by publication, and proof of service under G.S. 1-75.10(2).
b. G.S. 1-A-1, Rule 4(j)(4). Provides that Defendant cannot attack default judgment on grounds that due diligence in locating Defendant not met if Defendant received actual notice.
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THE CO-COUNSEL BULLETIN IS A PROJECT OF THE NORTH CAROLINA STATE BAR'S STANDING COMMITTEE ON LEGAL ASSISTANCE FOR MILITARY PERSONNEL. FOR REVISIONS, COMMENTS OR CORRECTIONS, CONTACT COMMITTEE MEMBER MARK E. SULLIVAN, 600 WADE AVE., RALEIGH, N.C. 27605 [919-832-8507].