Patrick v. Patrick

95 S.E.2d 585 (1956)

245 N.C. 195

Susie PATRICK v. James PATRICK.

No. 309.

Supreme Court of North Carolina.

December 12, 1956.

*587 LaRoque & Allen, Lamar Jones, Kinston, for respondent, appellant.

Albert W. Cowper, Kinston, for defendant, appellee.

HIGGINS, Justice.

The findings of fact by Judge Bone are abundantly supported by the evidence before him. A number of neighbors testified the defendant, James Patrick, frequently visited his wife in Kinston between 1923 and 1929. These visits lasted from a week to 10 days. The plaintiff's sister testified: "I am 81 years oldSusie Patrick was my sister and I visited her * * * as long as she lived except during the periods when Susie was living in Philadelphia. * * * To my knowledge Susie Patrick and her husband, James Patrick, were never separated but lived together as husband and wife from the time of their marriage until Susie Patrick's death in 1956." She further testified she had never heard of any divorce until after Susie's death.

Another witness testified that from 1924 to 1928 she lived directly across the street from James and Susie Patrick; that in the Spring of 1925 James Patrick came to Kinston on visits and lived in the home with his wife. He made numerous visits between 1925 and 1929. Susie Patrick received letters from him. The witness knew nothing of a divorce until Susie Patrick's death. Other witnesses gave evidence of like import.

The administrator offered evidence of three persons who said they knew James and Susie Patrick. They separated in 1923 and lived separate and apart until 1929 or 1930. They knew of the divorce proceeding. One of the witnesses testified she mailed a copy of the newspaper notice of the divorce proceeding to James Patrick.

The defendant stated under oath he knew nothing of the divorce proceeding until March 9, 1956.

This appeal presents these questions of law:

1. Did the Superior Court of Lenoir County, on motion in the cause, have authority to set aside the divorce decree entered at its April Term, 1929?

2. Was the motion to set the decree aside timely made?

3. Do the facts found support Judge Bone's order setting aside the divorce decree?

Both Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227, and Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617, recognize the right of an injured party to seek relief by motion in the cause where service is by publication and lack of due notice deprives the party of an opportunity to be heard. In the Henderson case, the Court said [232 N.C. 1, 59 S.E.2d 234]: "Moreover, if a judgment be obtained by means of a fraud practiced upon the court, the question may be raised by motion in the cause." In the Carpenter case, this Court said [244 N.C. 286, 93 S.E.2d 625]: "Where fraud on the court deprives the defendant of due process, that is, due notice and opportunity to defend, and hence of jurisdiction of the person of the defendant, the court, upon sufficient findings, will set aside the decree. * * * Upon motion in the cause, and upon sufficient findings of fact made by the court incident to its determination thereof, the divorce decree may be set aside." McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138; Bass v. Moore, 229 N.C. 211, 49 S.E.2d 391; Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315.

*588 The Superior Court has power, upon motion in the cause, to make inquiry, to find facts, and to determine whether proper notice was given affording an opportunity to be heard. If, therefore, in the original divorce proceeding the plaintiff caused the court to assume jurisdiction over the defendant when notice of the pendency of the action was fraudulently concealed from him, the court had power to set the decree aside, even though the letter of the law had been complied with by publication of notice in a newspaper. The purpose of service of process is to give notice and an opportunity to be heard. The letter of the law may have been followed with respect to the affidavit for publication and the notice itself, yet the composite of Judge Bone's findings shows a calculated effort on the part of the plaintiff to keep actual notice from James Patrick. When the method of service is not intended to give notice, but to conceal it, jurisdiction of the defendant is not acquired. In the McLean case this Court said: "The defendant presents the view that not only was the service in this case invalid because not reasonably calculated to give notice, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865, but that the plaintiff's attempt to secure a divorce by the means employed was a fraud upon the court. The rule is that if a fraud is perpetrated on the court whereby jurisdiction is apparently acquired when jurisdiction is in fact lacking, the judgment rendered thereon is a nullity and may be vacated on motion in the cause."

The court found the defendant knew nothing of the divorce decree until March 9, 1956, when it was presented to the clerk in support of a motion to oust him as administrator of his wife's estate on the ground he was not her husband. Twentyfive days after notice the defendant moved to set aside the divorce decree. He had the right thus to proceed, even though the adverse party was dead. "`By the weight of authority, for the purpose of establishing property rights, the court may vacate a decree, even after complainants' death, where it was obtained by fraud, and imposition on the part of the complainant, or without due service of process.'" Fowler v. Fowler, supra [190 N.C. 536, 130 S.E. 319]; Poole v. Poole, 210 N.C. 536, 187 S.E. 777. In answer to question No. 2, we hold the motion in the cause was properly and timely made.

The court's finding of fact No. 6, in the light of the other findings, simply means the plaintiff filed an affidavit in due form, obtained an order of publication and published the notice of her divorce action in a local newspaper, and that she obtained an uncontested decree of divorce. It must be conceded at that time the law did not provide for service outside the State and did not require mailing of a notice to the defendant's last known address. From the findings it must be concluded, however, the plaintiff had no cause for divorce on the grounds alleged (five years continuous separation). The husband was away at work, communicating with his wife, sending her money, visiting her frequently for a week or 10 days at a time. This course of conduct continued from the time he went to Philadelphia in 1923 until she joined him there in 1930. Thereafter they lived together in Philadelphia and Kinston until her death separated them in 1956. During that entire time she kept him in ignorance of the divorce. In fact, her conduct after she obtained the decree shows she did not consider herself bound by it. The divorce decree seems not to have influenced their lives in the slightest degree.

The facts found warranted the court in setting aside the divorce decree on the ground the court was fraudulently induced to assume jurisdiction over the person of the defendant when jurisdiction was not obtained by the method of service employed. Lack of notice denied the defendant *589 the opportunity to appear and to defend. The order appealed from is

Affirmed.

PARKER, J., concurs in result.

JOHNSON, J., not sitting.