Downey v. Downey

224 S.E.2d 255 (1976)

29 N.C. App. 375

Shirley Ann DOWNEY v. Walter Lee DOWNEY.

No. 7521DC981.

Court of Appeals of North Carolina.

May 5, 1976.

Certiorari Denied July 14, 1976.

Carol L. Teeter, Winston-Salem, for plaintiff-appellee.

*256 White & Crumpler by Fred G. Crumpler, Jr. and Michael J. Lewis, Winston-Salem, for defendant-appellant.

Certiorari Denied by Supreme Court July 14, 1976.

ARNOLD, Judge.

Defendant assigns error to the admission into evidence of the Tennessee decree. He maintains that under G.S. 1A-1, Rule 44(a), and 28 U.S.Code, § 1738, the "certificate" of the Tennessee judge was not admissible because it lacked a seal, did not state that such judge was custodian of the records, and was not authenticated.

Plaintiff calls attention to G.S. 1A-1, Rule 44(c), and contends that official records are also admissible in accordance with any other applicable statute or rules of evidence at common law. She cites Stansbury's N.C. Evidence (Brandis Rev.), § 177, and argues that the admission in defendant's answer that the Tennessee decree was entered amounted to a judicial admission as to this issue. We agree and find no error in the admission of the Tennessee decree into evidence.

Defendant next contends that the trial court committed error by giving full faith and credit to the Tennessee decree. He argues that under Tennessee statutory provision an order for support remains in the Tennessee court's control to be increased or decreased for cause shown by either party, and that such a decree is therefore not final and not entitled to full faith and credit.

We are persuaded that it was not error to give full faith and credit to the Tennessee decree. However, it is not necessary to discuss in this opinion the question of when full faith and credit should be given to a foreign decree. The General Assembly of North Carolina enacted G.S. 50-16.9(c), and that statute controls the circumstances of this case. It provides:

"When an order for alimony has been entered by a court of another jurisdiction, a court of this State may, upon gaining jurisdiction over the person of both parties in a civil action instituted for that purpose, and upon a showing of changed circumstances, enter a new order for alimony which modifies or supersedes such order for alimony to the extent that it could have been so modified in the jurisdiction where granted."

The decree entered by the Tennessee court awarded alimony and support to plaintiff. Personal jurisdiction over both parties was acquired by the District Court of Forsyth County in an action seeking relief under the Tennessee order, and the court found, based upon competent evidence, that there had been a change in circumstances, i. e., that the two minor children referred to in the Tennessee decree had reached their majority. The District Court of Forsyth County had authority to modify the Tennessee decree to the same extent as the Tennessee court in which it was entered, including the authority to enforce payment under the Tennessee decree.

In not making findings of fact to support its order of prospective alimony the defendant contends the trial court erred. We disagree. This action was brought by plaintiff to enforce the Tennessee decree, and G.S. 50-16.9(c) authorized a modification of the Tennessee decree "upon a showing of changed circumstances." A change in circumstances was shown and there was no error in the court's modifying the Tennessee order by reducing the "$700 per month as alimony and support" to $300 per month "alimony."

We find no error in the decision of the trial court, and the order is

Affirmed.

MORRIS and HEDRICK, JJ., concur.