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Joan Ann Southern v. William Monroe Southern

Filed: October 2, 1979.

JOAN ANN SOUTHERN
v.
WILLIAM MONROE SOUTHERN



Appeal by defendant from Freeman, Judge. Order entered 18 October 1978 in District Court, Forsyth County. Heard in the Court of Appeals 27 August 1979.

Parker, Judge. Chief Judge Morris and Judge Martin (Harry C.) concur.

Parker

In his first assignment of error, defendant contends that the court improperly denied his motion to dismiss under G.S. 1A-1, Rule 12(b)(6). He relies principally on the claim that plaintiff's failure to verify her complaint deprived the court of subject matter jurisdiction. Although the Order and Judgment of the trial court recites that plaintiff did verify the complaint prior to judgment, there is no evidence of such a verification in the record.

Prior to 1967, G.S. § 50-16 provided in pertinent part:

"In actions [for alimony without divorce] brought under this section, the wife shall not be required to file the affidavit provided in § 50-8, but shall verify her complaint as prescribed in the case of ordinary civil actions."

By virtue of this statute a court was without subject matter jurisdiction to entertain an action for alimony in which the complaint was not verified. Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596 (1946). However, former G.S. 50-16 was repealed by 1967 Sessions Laws, ch. 1152, s. 1. Verification of a complaint in an action for alimony without divorce is no longer required. 2 Lee N.C. Family Law § 143 (1976 Supp.). Therefore, defendant's first assignment of error is without merit.

Defendant next assigns error to the trial court's grant of summary judgment to plaintiff as to arrearages due under the English decree. The issue presented is whether the district court in Forsyth County properly gave effect to the judgment of a foreign country entered against a North Carolina resident based on service in North Carolina by uncertified and unregistered mail. Although the Full Faith and Credit Clause of the U.S. Constitution does not apply to decrees of foreign nations, certain foreign decrees may be given effect in our courts under the principle of the comity of nations:

"Comity", in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation

allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens . . . .

Hilton v. Guyot, 159 U.S. 113, 163-164, 16 S. Ct. 139, 143, 40 L. Ed. 95, 108 (1895).

However, our courts may enforce a judgment in personam only where it was rendered by a foreign court having jurisdiction of the cause and of the parties. Hilton, supra. The Matrimonial Causes Act of England, 1973, §§ 22 and 23, grants subject matter jurisdiction to the English courts to resolve issues of ancillary financial relief in divorce actions. Under Rule 14(1) of the Matrimonial Causes Rules, service of process in such actions may be made by personal service or by mail. Although the English judgment rendered against defendant may be enforceable in the English courts under English standards of jurisdiction, the courts of this state may not enforce it unless there is a showing that the exercise of jurisdiction over defendant by the English court satisfied our concepts of due process. Bank of Montreal v. Kough, 430 F. Supp. 1243 (N.D. Cal. 1977); Cherun v. Frishman, 236 F. Supp. 292 (DDC 1964); Ross v. Ostrander, 192 Misc. 140, 79 N.Y.S. 2d 706 (1948). See also Wurfel, "Recognition of Foreign Judgments," 50 N.C.L. Rev. 21, 69 (1971); von Mehren, "Enforcement of Foreign Judgments in the U.S.," 17 Virginia Journal of International Law 401 (1977).

Under the law of our state, judgment for alimony and child support are in personam. Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977); Fleek v. Fleek, 270 N.C. 736, 155 S.E.2d 290 (1967). The due process standard governing the exercise of in personam jurisdiction was established by the U.S. Supreme Court in International Shoe ...


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