Surratt v. Surratt

139 S.E.2d 720 (1965)

263 N.C. 466

Mary Edith Wright SURRATT v. Glenn Marvin SURRATT.

No. 530.

Supreme Court of North Carolina.

January 15, 1965.

*722 Ottway Burton, Asheboro, for plaintiff appellee.

Miller & Beck, Jerry M. Shuping, Asheboro, for defendant appellant.

DENNY, Chief Justice.

The sole question before us on this appeal is whether or not a wife may institute an action for the custody, support and maintenance of the minor children born of the marriage, and for alimony without divorce, and procure an in personam judgment against her defendant husband by service of process on her nonresident husband outside the State, pursuant to the provisions of G.S. § 1-104. The answer must be in the negative.

In 17 Am.Jur., Divorce and Separation, § 592, page 678, et seq., it is said: "While, under statute, a personal judgment for alimony and costs may properly be entered against a resident defendant who has been served by publication, it is well settled, in accord with the general rules applicable in other cases, that a decree for alimony and costs against a nonresident defendant cannot be based upon constructive service except as against property which may be found within the jurisdiction of the court, specifically proceeded against in the divorce proceeding, and described in the petition for divorce. In other words, constructive service in itself, whether made by publication or by actual service of process upon the defendant without the state is insufficient to give jurisdiction to render a judgment for alimony against a nonresident which will be binding upon him except as to his property within the jurisdiction. Consequently, even where a statute authorizes a court to award alimony as incidental to suits for divorce, although in terms applying to all cases where alimony is decreed, it must be considered as in harmony with the general rule that a personal decree can only be supported by personal service within the jurisdictional limits."

Likewise, in 17A Am.Jur., Divorce and Separation, § 973, page 157, it is stated: "The power to order a person to pay alimony or child support in a divorce action requires jurisdiction in personam over him. * * *"

Also, in 42 Am.Jur., Process, § 50, page 41, it is said: "Whatever effect constructive service of process or personal service outside the territorial jurisdiction of the court may have to give a court jurisdiction in personam over its own residents, it is now well and conclusively established that jurisdiction over the person of a nonresident of the state, sufficient to authorize the court to render personal judgment against such nonresident, can be acquired only by personal service of process within the territorial jurisdiction of the court by whose order or judgment his personal liability is to be ascertained and fixed, unless he waives service of process by his voluntary appearance or consents to or accepts some form of service other than personal service. A personal judgment without such personal service upon a nonresident defendant who does not appear or otherwise waive such service is void as obtained without due process of law."

The appellee contends that the defendant is not and never has been a nonresident of the State of North Carolina. Even so, while she alleged in her complaint that the defendant was a resident of Randolph County, North Carolina, when the defendant could not be found in the State of North Carolina, and therefore no personal service could be obtained on him within the State, the plaintiff, in order to get personal service on the defendant outside the State, filed an affidavit on 7 October 1963 to the effect that after due diligence personal service cannot be obtained on the defendant within the State; that the residence of the defendant, according to the *723 best information of the applicant, was 2126 N.W. 7th Street, Gainesville, Florida. Personal service outside the State was thereafter obtained on the defendant in Alachua County, Florida, in which Gainesville is located. Moreover, there was nothing in plaintiff's affidavit to the effect that the defendant was a citizen and resident of North Carolina and "has departed therefrom or keeps himself concealed therein with intent to defraud his creditors or to avoid the service of summons," as set forth in G.S. § 1-98.2, subsection (6).

Furthermore, personal service outside the State was not obtained until nearly three months after the defendant herein had instituted an action for absolute divorce from the plaintiff herein in Leon County, Florida, in which action the plaintiff filed answer, employed counsel to represent her, and was present and participated in the trial thereof, in which action she was granted an absolute divorce from the defendant herein, given custody of her children and support for them, and has been the recipient of the benefits of such judgment since it was rendered.

We hold, under the facts revealed by the record, the defendant was a nonresident 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. Trinity Church v. Miller, 260 N.C. 331, 132 S.E.2d 688; Burton v. Dixon, 259 N.C. 473, 131 S.E.2d 27; Stevens v. Cecil, 214 N.C. 217, 199 S.E. 161; Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565.

The judgment of the court below is

Reversed.