THOMAS E. LATIMER, Plaintiff, v. DOROTHY B. LATIMER, Defendant
No. COA99-183
The trial court properly set aside a judgment of divorce entered on 8 December where
plaintiff filed the action on 3 November; the acceptance of service carried the date 4 November,
creating a prima facie case that defendant accepted service on that date; and defendant presented
unequivocal and convincing evidence that she did not sign the acceptance until 15 November
and back dated it at the request of plaintiff. The court acted prior to the expiration of 30 days
from service and was without jurisdiction to adjudicate the absolute divorce on 8 December.
Appeal by plaintiff from order filed 30 September 1998 by
Judge William G. Jones in Mecklenburg County District Court. Heard
in the Court of Appeals 16 November 1999.
Edward P. Hausle, P.A., by Edward P. Hausle, for plaintiff-
appellant.
Glover & Petersen, P.A., by James R. Glover; and Murphy
Chapman & Miller, PA, by Ronald L. Chapman, for defendant-
appellee.
GREENE, Judge.
Thomas H. Latimer (Plaintiff) appeals the entry of an order
granting Dorothy B. Latimer (Defendant)'s Rule 60(b) motion to set
aside a judgment of absolute divorce filed on 8 December 1997.
The relevant facts show Plaintiff filed an action for absolute
divorce on 3 November 1997, seeking a divorce from Defendant wife.
On 4 November 1997, Plaintiff delivered to Defendant a copy of the
complaint, a summons, and a separate document entitled "Acceptance
of Service." The "Acceptance of Service" reads as follows:
"I have received copies of the Summons and
Complaint in the [3 November 1997 divorce
action].
This ____ day of November, 1997.
_____________________
Dorothy B. Latimer
Defendant"
On 15 November 1997, Defendant delivered the summons and the
"Acceptance of Service" to Plaintiff at his home, signed it in his
presence, and inserted the date of 4 November 1997. In an
affidavit submitted to the trial court, Defendant stated Plaintiff
"told me to date the document as of the original date he had given
[the documents] to me."
On 8 December 1997, the trial court entered a judgment of
absolute divorce, severing the bonds of matrimony existing between
Plaintiff and Defendant. On 12 December 1997, Defendant filed a
Rule 60 motion to set aside the divorce judgment on the grounds,
among others, that it was entered prior to the expiration of 30
days after service and, therefore, was void. On 30 September 1998,
the trial court entered its order setting aside the 8 December 1997
divorce on the grounds it "was entered prior to the time permitted
by law and the judgment is[, therefore,] void." In support of its
order, the trial court found Defendant "entered the notation of
acceptance of service and signed the document on [15 November
1997]." The court concluded "[s]ervice upon the Defendant was
obtained on the date of her signing the '[A]cceptance of
[S]ervice,' [15 November 1997]."
________________________________
The dispositive issue is whether a defendant may offer
evidence to rebut the date of acceptance of summons shown on an
"Acceptance of Service."
Rule 4 of the North Carolina Rules of Civil Procedureprovides, in pertinent part:
(j5)
Personal jurisdiction by acceptance
of service. -- Any party personally, or
through the persons provided in Rule 4(j),
may
accept service of process by notation of
acceptance of service together with the
signature of the party accepting service and
the date thereof on an original or copy of a
summons, and such acceptance shall have the
same force and effect as would exist had the
process been served by delivery of copy and
summons and complaint to the person signing
said acceptance.
N.C.G.S. § 1A-1, Rule 4(j5) (Supp. 1998) (emphasis added).
In this case, there is no dispute Defendant accepted service
of the summons and divorce complaint. She noted her acceptance
with her signature on the "Acceptance of Service." The dispute,
instead, concerns the date on which she accepted service. The
"Acceptance of Service" indicates she signed it on 4 November 1997.
She contends she actually signed the "Acceptance of Service" on 15
November 1997 and back dated it to 4 November, upon the request of
Plaintiff.
A return of process, including an acceptance of service, "is
strong or at least prima facie evidence of the facts stated
therein," however, "it is not conclusive and may be rebutted or
impeached" by clear, unequivocal, and convincing evidence. 72
C.J.S.
Process §§ 85, 88 (1987);
see also Morton v. Insurance Co.,
250 N.C. 722, 725, 110 S.E.2d 330, 332 (1959) (date summons bears
is prima facie evidence of date of its issuance). "[T]he return
may be attacked by the oral testimony of the defendant." 72 C.J.S.
Process § 87.
In this case, 4 November 1997 is the date shown on the
"Acceptance of Service," and, thus, a prima facie case isestablished that Defendant accepted service of the summons and
complaint on that date. Defendant, however, presented unequivocal
and convincing evidence she did not sign the "Acceptance of
Service" until 15 November, and it was back dated at the request of
her husband, the Plaintiff.
(See footnote 1)
The trial court entered findings
consistent with this evidence and we are bound by those findings.
Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 615, 219 S.E.2d
787, 790 (1975). These findings support the conclusion that
service occurred on 15 November 1997. N.C.G.S. § 1A-1, Rule 4 (j5)
(acceptance of service occurs on date "Acceptance of Service"
signed).
Because the service of the summons and complaint did not occur
until 15 November 1997, the trial court was without jurisdiction to
adjudicate the absolute divorce on 8 December 1997. N.C.G.S. §
1A-1, Rule 12(a)(1) (1990) (defendant has 30 days after service of
complaint to file answer);
see Marketing Systems v. Realty Co., 277
N.C. 230, 234, 176 S.E.2d 775, 777 (1970) (trial court has no
jurisdiction over defendant if not "brought into court in some waysanctioned by law"). Because the trial court did not have
jurisdiction to adjudicate the absolute divorce on 8 December 1997,
the judgment of absolute divorce was void and subject to being set
aside pursuant to Rule 60(b)(4).
Id. at 233, 176 S.E.2d at 777
(judgment entered without jurisdiction is void);
see Hyder v.
Dergance, 76 N.C. App. 317, 320, 332 S.E.2d 713, 715 (1985)
(judgment is void if entered before expiration of time for filing
of responsive pleading); N.C.G.S. § 1A-1, Rule 60(b)(4) (1990)
(trial court may set aside void judgment). The order of the trial
court setting aside the judgment of absolute divorce is affirmed.
We have reviewed Plaintiff's other assignments of error and
determine them to be unpersuasive.
Affirmed.
Judges WALKER and TIMMONS-GOODSON concur.
Footnote: 1