Appeal by plaintiff from order entered 13 November 2001 by
Judge Ernest J. Harviel in Alamance County District Court. Heard
in the Court of Appeals 29 October 2002.
Randall & Hill, by John C. Randall, for plaintiff-appellant.
David R. Huffman for defendant-appellee.
MARTIN, Judge.
Bernice Freeman and defendant Dorothy Freeman were married 4
July 1980. On 10 July 1985, Bernice Freeman instituted this action
for divorce, and on 28 August 1985, a judgment of absolute divorce
was entered. Bernice Freeman died on 20 April 1998. On 4 April
2000, defendant filed a motion in the cause in this action to set
aside the judgment of absolute divorce, and served the motion on
the administrator of Bernice Freeman's estate, who was subsequently
substituted as party plaintiff. By order dated 13 November 2001,
the trial court concluded the judgment of absolute divorce was void
and granted defendant's motion to set it aside. Plaintiff
administrator appeals.
Evidence presented at the hearing tended to show that the
original plaintiff, Bernice Freeman, married defendant, DorothyFreeman, on 4 July 1980, in Durham County. At the time of their
marriage, Mr. Freeman had three children, Darryl Freeman, Glenda
Freeman (now) Wilson, and Todd Freeman, and defendant had two
children, Floyd and Christopher May. In June 1985, defendant
separated from Bernice Freeman and moved, with her sons, out of the
marital residence in Durham County to a mobile home in Orange
County for the summer of 1985. Defendant testified that during
their separation, Bernice Freeman visited her frequently and they
had sexual relations and took trips to the beach together. Less
than nine months after the summer of 1985, defendant gave birth to
their son, Matthew Bernice Freeman.
In July 1985, Bernice Freeman's attorney prepared a complaint
for absolute divorce alleging the parties had separated on 5 May
1984. The complaint was verified by Bernice Freeman on 9 July 1985
and filed with the Alamance County Clerk of Court, and summons
issued, on 10 July at 10:26 a.m. An acceptance of service was
filed at 10:28 a.m. bearing the date in the attorney's handwriting
and the purported signature of defendant. Bernice Freeman's
attorney, Robert Steele, testified that although he had no memory
of the Freeman divorce, it was the practice of his office at that
time to allow the plaintiff in a “friendly” divorce case to take
the summons to the defendant for acceptance of service. Defendant
never filed an answer to the complaint and did not appear at the
divorce hearing. A judgment of absolute divorce based on one
year's separation was entered on 28 August 1985.
Defendant subsequently moved back into Bernice Freeman's homein Durham County and Bernice Freeman and defendant resumed and
continued life as a married couple until Bernice Freeman's death in
1998. In 1986, Bernice Freeman purchased real property in Orange
County which was titled in his name and defendant's as tenants by
the entireties. The parties built a residence on the property in
1990, executing a deed of trust. In 1997, they filed paperwork for
social security benefits as husband and wife. Upon decedent's
death, an unsigned will was found that had been drafted in or about
May 1989 and referred to defendant as decedent's wife.
The present motion was apparently occasioned by defendant's
sale of the Orange County residence and the discovery thereafter of
the 1985 divorce decree. Both the personal representative of
Bernice Freeman's estate and the grantee of the property filed suit
against defendant regarding the property sale.
____________________________
The issue is whether the trial court erred in determining that
the 1985 divorce judgment is void for lack of service of process.
Plaintiff challenges the trial court's order with two arguments
that require discussion: (1) that the motion to set aside the
divorce was not timely, and (2) that there was insufficient
evidence to support the trial court's determination that defendant
was not served with the summons and complaint. After careful
consideration of the record, we reject both arguments.
G.S. § 1A-1, Rule 60(b) provides in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, etc. On
motion and upon such terms as are just, the
court may relieve a party . . . from a finaljudgment, order, or proceeding for the
following reasons: . . .
(3) Fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party; (4) The
judgment is void; . . ., or
(6) Any other reason justifying relief from
the operation of the judgment.
The motion shall be made within a reasonable
time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order,
or proceeding was entered or taken. . . .
This rule does not limit the power of a court
to entertain an independent action to relieve
a party from a judgment, order, or proceeding,
or to set aside a judgment for fraud upon the
court.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2002) (emphasis added).
Plaintiff contends that, because defendant's motion was grounded
upon allegations and evidence of Bernice Freeman's intrinsic fraud
in lying to the court in 1985 concerning the length of the parties'
separation prior to his filing the divorce action, defendant was
required by Rule 60(b)(3) to file the motion no later than a year
after the judgment was entered.
Although defendant's motion included allegations regarding
misrepresentation of the length of the parties' separation in the
divorce complaint and related inaccurate findings in the judgment,
the motion also contained allegations that defendant had never been
served with process. The trial court based its order setting aside
the divorce judgment on the determination that the judgment was a
“nullity.” Rule 60(b)(4) provides relief from judgments that are
void, and the statute indicates that a motion under this provision
must be made “within a reasonable time.” Case law indicates thatbecause a void judgment is a legal nullity, it may be attacked at
any time.
See Van Engen v. Que Scientific, Inc., ___ N.C. App.
___, 567 S.E.2d 179 (2002). We hold that the motion under Rule
60(b)(4) was timely.
Plaintiff's more substantive argument addresses the
sufficiency of the evidence to support the trial court's order.
The key issue in this case is whether defendant was properly served
with the summons and divorce complaint. “[A] court may only obtain
personal jurisdiction over a defendant by the issuance of summons
and service of process by one of the statutorily specified
methods.”
Fender v. Deaton, 130 N.C. App. 657, 659, 503 S.E.2d
707, 708 (1998),
disc. review denied, 350 N.C. 94, 527 S.E.2d 666
(1999). The law is well settled that without such jurisdiction, a
judgment against defendant is void.
See Thomas v. Thomas, 43 N.C.
App. 638, 645, 260 S.E.2d 163, 168 (1979) (citing
Sink v. Easter,
284 N.C. 555, 202 S.E.2d 138 (1974)). The record is clear that
Bernice Freeman, and the present plaintiff, relied solely upon
service pursuant to G.S. § 1A-1, Rule 4(j5) to establish personal
jurisdiction. The rule provides:
(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. Gen. Stat. § 1A-1, Rule 4(j5) (2002). Where acceptance ofservice is used, there is a rebuttable presumption that service was
proper if the return of process bears the defendant's signature and
is dated.
See Latimer v. Latimer, 136 N.C. App. 227, 522 S.E.2d
801 (1999). In order to overcome this presumption, a defendant
must produce clear, unequivocal, and convincing evidence of the
alleged defect.
See id. If supported by such evidence, the
findings of the trial court are binding on this Court, although the
conclusions of law may be reviewed
de novo.
See id. at 230, 522
S.E.2d at 803.
In
Latimer, a case involving a motion to set aside a divorce
judgment where the acceptance of service was backdated, the Court
stated that “'[t]he return may be attacked by the oral testimony of
the defendant.'”
Id. at 229, 522 S.E.2d at 802 (citation omitted).
In the instant case, defendant produced not only her own testimony,
but also evidence of several circumstances inconsistent with her
having signed the return of service. Defendant testified that she
had never been to the Alamance County courthouse, where the return
of service must have been signed within the two-minute window
between the filing of the complaint and the filing of the return of
service. Although plaintiff presented a handwriting analysis
expert who stated his opinion “based on a reasonable degree of
scientific certainty,” that the signature on the acceptance of
service was defendant's, defendant also presented testimony by
another handwriting expert, who stated that he could not with any
degree of scientific certainty say that the questioned signature
was defendant's. In fact, defendant's expert also testified thatthe contested signature had some characteristics in common with
Bernice Freeman's signature on the verification accompanying the
divorce complaint. Defendant testified that Bernice Freeman had
signed her name to documents on other occasions.
In addition, defendant also submitted evidence of other
circumstances supporting her claim that she had not been served
with the divorce complaint nor known about the divorce. She and
others testified that she and decedent continued to live as a
married couple after the divorce was entered. They purchased
property together, lived together, raised a son together, and
decedent applied for social security disability benefits listing
defendant as his wife. Though plaintiff produced evidence from
which contrary findings could have been made, defendant offered
explanations to meet such evidence. The weight, credibility, and
convincing force of such evidence is for the trial court, who is in
the best position to observe the witnesses and make such
determinations.
Upchurch v. Upchurch, 128 N.C. App. 461, 495
S.E.2d 738,
disc. review denied, 348 N.C. 291, 501 S.E.2d 925
(1998).
The trial court specifically found defendant's evidence to
be “clear, unequivocal and convincing” that defendant had not been
served with process.
Once a party to a divorce dies, the divorce judgment cannot be
later attacked unless it is void.
See Dunevant v. Dunevant, 142
N.C. App. 169, 175, 542 S.E.2d 242, 246 (2001) (“the trial court
may not set aside a valid divorce decree and thereby revive the
marital status of a party who is deceased”). “'A divorce grantedwithout proper service of process upon the defendant is void when
[s]he does not appear in the action or does not otherwise waive
service of process.'”
Thomas, 43 N.C. App. at 645, 260 S.E.2d at
168 (citation omitted). In this case, the judgment of divorce was
void due to lack of service on defendant. Accordingly, the
judgment could be attacked and set aside following Bernice
Freeman's death. The order from which plaintiff appeals is
affirmed.
Affirmed.
Judges GREENE and BRYANT concur.
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