1. Jurisdiction_personal_not waived by motion to reopen adoption file_no general
appearance
Respondent did not waive his personal jurisdiction objection to his daughter's adoption
by moving that the trial court reopen the adoption file and transfer the matter from the Clerk of
Superior Court. Respondent did nothing that could be considered a general appearance before
entry of the order now challenged; if the court lacked personal jurisdiction when it entered the
order, subsequent actions could not retroactively supply jurisdiction.
2. Adoption; Process and Service_motion to reopen adoption_prior abandonment
proceeding_service by publication
There was no abuse of discretion in the denial of a natural father's Rule 60 motions for
relief from the adoption of his daughter by the mother's new husband. The abandonment
proceeding which preceded the adoption (so that respondent was not a necessary party to the
adoption) was based on service by publication. The publication requirements were satisfied
because petitioner first attempted service by certified mail at the respondent's admitted address in
Virginia, with the letter addressed both to respondent and in care of the person with whom he
lived.
3. Jurisdiction_minimum contacts_divorce and child custody proceedings
There were sufficient minimum contacts for the court to obtain personal jurisdiction over
respondent in an abandonment proceeding, which preceded an adoption, where respondent lived
in North Carolina for only one month but had other contacts with the state through his divorce
proceeding and his daughter's custody matters.
Judge GEER concurring.
Jones, Martin, Parris & Tessener Law Offices, P.L.L.C., by
Sean A.B. Cole, for petitioner-appellant.
Glenn, Mills & Fisher, P.A., by Carlos E. Mahoney, for
respondent-appellant.
BRYANT, Judge.
Henry Woodrow Barnes, Jr. (petitioner) and James Ronald Wells
(respondent) both appeal an order filed 26 March 2003 denying
respondent's motion for relief from an order entered 25 October
1979 that allowed petitioner to adopt respondent's natural
daughter. Respondent and Donna Jarrett (Jarrett) were married in
Blair, Virginia on 26 March 1970. On 11 October 1970, Dawn Marie
was born to the marriage. Following Dawn Marie's birth, the family
moved to Fort Bragg, North Carolina while respondent was engaged in
military service. Sometime in 1971, the family moved back to
Virginia.
In either late 1974 or early 1975, respondent and Jarrett
separated. Following their separation, Jarrett moved back to North
Carolina and began living with petitioner.
On 13 October 1975, Jarrett obtained a divorce from respondent
in Mecklenburg County, North Carolina. Custody of Dawn Marie was
placed with Jarrett. Respondent did not appear at the divorce
proceeding. On 24 January 1976, Jarrett married petitioner in
York, South Carolina, and the family moved to Chapel Hill, North
Carolina.
Sometime in late 1977, respondent came to North Carolina,
picked-up Dawn Marie, and returned with the child to Danville,
Virginia. On 7 December 1977, respondent filed a petition for
custody of Dawn Marie in Danville, Virginia. On 8 December 1977,
Jarrett contested the petition by filing a similar petition for
custody in Danville, Virginia. A custody hearing was held on 8
December 1977, and respondent was awarded temporary custody. A
permanent custody hearing was scheduled for 31 January 1978. Shortly after the 8 December 1977 hearing, respondent returned Dawn
Marie to the physical custody of Jarrett and petitioner in North
Carolina. On 16 December 1977, respondent dismissed his petition
for custody.
On 26 September 1978, petitioner filed a petition for the
adoption of Dawn Marie in Chatham County, North Carolina. Jarrett
signed a consent for adoption, and also filed a petition alleging
respondent's abandonment of Dawn Marie. During this time,
respondent was living with his grandmother in Danville, Virginia.
The clerk of superior court of Chatham County attempted to
serve notice on respondent, via certified mail with return receipt
requested, advising that a court date had been set to determine
whether abandonment had occurred. Petitioner also attempted to
serve notice of the adoption proceeding on respondent via certified
mail with return receipt requested. The certified mail was not
successfully delivered; thereafter, petitioner provided service by
publication in the Danville newspaper. Notice was published for
four days in April 1979. On 14 May 1979, Jarrett and petitioner's
attorney filed an affidavit attesting that respondent's
“whereabouts, dwelling house is unknown and there has been diligent
but unsuccessful attempt to serve the party under paragraph c of
Rule 4(j)(9).”
On 14 May 1979, a hearing was held before the clerk of
superior court, at which Jarrett, petitioner, and their attorney
were present. Respondent was not present and did not have an
attorney present on his behalf. On the same date, the clerk issued
an order of abandonment decreeing that respondent had abandonedDawn Marie and that a guardian ad litem should be appointed to
represent her interests.
On 25 October 1979, the trial court entered an order allowing
petitioner to adopt Dawn Marie. Respondent neither was a party to
the adoption proceeding nor did he enter an appearance before the
court.
On 28 May 2002, Dawn Marie died in an automobile accident.
Following her death, respondent claims he discovered she had been
adopted by petitioner in North Carolina. On 19 September 2002,
respondent filed a motion for relief from the final order of
adoption pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) and
(b)(6). Respondent's motion alleged that the final order for
adoption was void because petitioner failed to properly serve
respondent with notice of the proceedings, and the clerk of
superior court lacked personal jurisdiction over respondent. On 28
October 2002, upon motion of respondent, these matters were
transferred to the superior court division for hearing.
These matters came for hearing on 2 December 2002. On 26
March 2003, the trial court issued an order denying respondent's
Rule 60(b)(4) and (b)(6) motion. Both petitioner and respondent
assigned as error portions of the 26 March 2003 order.
Petitioner argues the trial court erred in failing to conclude that
respondent submitted to the trial court's jurisdiction by moving
the trial court to open the adoption file and transfer the matter
from the clerk of superior court. We disagree.
In In re Blalock, 233 N.C. 493, 64 S.E.2d 848 (1951), our
Supreme Court examined whether a party waived his objection to
improper service of process by filing a motion to dismiss based on
personal and subject matter jurisdiction. The Blalock Court
determined that by seeking dismissal based on lack of subject
matter jurisdiction, the respondent made a general appearance,
thereby waiving all objections to personal jurisdiction. Blalock,
233 N.C. at 504, 64 S.E.2d at 856. We agree with the trial court's
conclusion that Blalock is inapplicable to the instant case. The
actions deemed to be a general appearance in Blalock occurred prior
to the entry of a final judgment. Here, respondent did nothing
that could be considered a general appearance prior to the entry of
the order now challenged.
Petitioner cites several cases in support of his argument thatrespondent waived his objections to personal jurisdiction.
However, we find these cases are also inapplicable because
respondent never made a general appearance before entry of the
final order. Bullard v. Bader, 117 N.C. App. 299, 301-02, 450
S.E.2d 757, 759 (1994) (defendant made a general appearance before
entry of judgment by submitting financial documents for
consideration at his child support hearing); Bumgardner v.
Bumgardner, 113 N.C. App. 314, 319, 438 S.E.2d 471, 474 (1994)
(defendant made a general appearance before entry of judgment by
appearing in court with counsel and participating in the hearing
for absolute divorce); Humphrey v. Sinnot, 84 N.C. App. 263, 265-
66, 352 S.E.2d 443, 445 (1987) (defendant made a general appearance
by moving for change of venue before asserting lack of jurisdiction
defenses); Williams v. Williams, 46 N.C. App. 787, 788-89, 266
S.E.2d 25, 27-28 (1980) (defendant made a general appearance before
entry of judgment by his legal counsel's participation in an in-
chambers conference with judge and opposing attorney on custody
issue); Swenson v. Thibaut, 39 N.C. App. 77, 89-92, 250 S.E.2d 279,
287-89 (1978) (defendants made a general appearance by moving to
disqualify plaintiff's counsel before filing lack of jurisdiction
defenses). If the trial court lacked personal jurisdiction over
respondent when it entered the order, actions subsequent to that
order could not retroactively supply jurisdiction. Based on
applicable case law, the trial court did not err in concluding that
respondent did not waive his objection to personal jurisdiction.
Accordingly, petitioner's assignment of error is overruled.
(e) If the parent, parents, or guardian
of the person deny that an abandonment has
taken place, this issue of fact shall be
determined as provided in G.S. 1-273, and if
abandonment is determined, then the consent of
the parent, parents, or guardian of the person
shall not be required.
N.C.G.S. § 48-5 (Supp. 1977) (repealed 1 July 1996).
According to the clear language of N.C. Gen. Stat. § 48-5,
respondent would not be a necessary party to the adoption
proceeding if the prior abandonment determination was properly
entered. Respondent argues that service by publication, as was
used in this case, was improper, and the court lacked jurisdiction
over respondent to enter the abandonment order.
Before a party can resort to service by means of publication,
other forms of service must first be attempted. N.C. Gen. Stat. §
1A-1, Rule 4(j)(9)(c) (1979). In 1979, this State's rules
concerning service were as follows:
a. Personal service may be made on any party
outside this State by anyone authorized
in section (a) of this rule and in the
manner prescribed in this section (j) for
service on such party within this State.
Before judgment by default may be had on
such service, there shall be filed with
the court an affidavit of service showing
the circumstances warranting the use ofpersonal service outside this State and
proof of such service in accordance with
the requirements of G.S. 1-75.10(1).
b. Any party subject to service of process
under this subsection (9) may be served
by mailing a copy of the summons and
complaint, registered or certified mail,
return receipt requested, addressed to
the party to be served. Service shall be
complete on the day the summons and
complaint are delivered to the address,
but the court in which the action is
pending shall upon motion of the party
served, allow such additional time as may
be necessary to afford the defendant
reasonable opportunity to defend the
action. Before judgment by default may
be had on such service, the serving party
shall file an affidavit with the court
showing the circumstances warranting the
use of service by registered or certified
mail and averring (i) that a copy of the
summons and complaint was deposited in
the post office for mailing by registered
or certified mail, return receipt
requested, (ii) that it was in fact
received as evidenced by the attached
registered or certified receipt or other
evidence satisfactory to the court of
delivery to the addressee and (iii) that
the genuine receipt or other evidence of
delivery is attached.
c. A party subject to service of process
under this subsection (9) may be served
by publication whenever the party's
address, whereabouts, dwelling house or
usual place of abode is unknown and
cannot with due diligence be ascertained,
or there has been a diligent but
unsuccessful attempt to serve the party
under either Paragraph A or under
Paragraph B or under Paragraphs A and B
of this subsection (9).
N.C.G.S. § 1A-1, Rule 4(j)(9)(a), (b), (c) (Supp. 1979).
The trial court in the instant case stated in its judgment:
While the appellate courts of our state have
consistently rejected using a checklist to
determine whether due diligence was
accomplished by a party before that partyresorts to service of process by publication,
in the instant case, due diligence was
accomplished. Petitioner presented
photocopies of the returned certified mail
envelope originally used to attempt service on
Respondent in Danville, Virginia. In spite of
his admitted residence at the address in
Danville where Petitioner sought to serve him,
Respondent did not claim the certified letter.
As the trial court noted, this Court has refused to “make a
restrictive mandatory checklist for what constitutes due diligence
for purposes of permitting Rule 4(j)(9)(c) publication. Rather, a
case by case analysis is more appropriate.” Emanuel v. Fellows, 47
N.C. App. 340, 347, 267 S.E.2d 368, 372 (1980). In Emanuel, the
plaintiff took several steps to determine the defendant's location
but could not find him. The defendant on appeal argued that the
plaintiff should have interviewed the defendant's old neighbors,
checked with government agencies, relatives, and the county clerk's
office before proceeding with service by publication. Emanuel, 47
N.C. App. 340 at 347, 267 S.E.2d at 372. The Court, however, held
the plaintiff had acted with due diligence when he contacted
directory assistance and the defendant's insurer in an unsuccessful
attempt to determine the defendant's address. Id.
In the instant case, petitioner attempted service by certified
mail at respondent's admitted address, which letter was addressed
not only to respondent but also in care of his grandmother.
Respondent relies on Sink v. Easter, 284 N.C. 555, 202 S.E.2d
138 (1974), as support for his assertion that service by
publication was improper. However, there are critical distinctions
between Sink and the instant case. In Sink, the plaintiff had
notice that the defendant was living outside the United States, andwas told by a person at the defendant's High Point residence that
he was unsure when the defendant would be returning to the United
States. The Court noted that “it thus appears that Plaintiff could
have and therefore should have affected personal service of process
by leaving copies of the Summons and Court Order at Defendant's
High Point residence with a person of suitable age and discretion
living there.” Sink, 284 N.C. 555 at 558, 202 S.E.2d at 141.
Unlike the defendant in Sink, however, respondent admitted living
at the same address where petitioner attempted service. Moreover,
petitioner attempted to serve either respondent or the person with
whom he lived. The trial court found:
12. Attorney Levi attempted to serve
Respondent by certified mail at the address
where he was living in Danville, Virginia, in
March, 1979. Respondent did not claim the
certified mail sent to him, although it
remained at the post office for several weeks.
. . . .
15. Petitioner and Donna Petty were each
aware that Respondent was a resident of the
Danville, Virginia address in question where
they were attempting service; and that
Respondent was not claiming his mail. Donna
Petty had contacted Respondent and gave him
actual notice of the proceedings, both before
and after they occurred. Petitioner knew that
Respondent was in the area where the notice of
publication would run.
We conclude that the trial court correctly determined that due
diligence was shown such that the service by publication
requirements of Rule 4(j)(9)(a) to (c) were satisfied.
[3] In the instant case, we find the trial court was also
presented with competent evidence to support a finding that the
clerk of superior court had personal jurisdiction over respondentat the time of the entry of the abandonment order. The existence
of personal jurisdiction is a question of fact for the trial court.
Hiwassee Stables v. Cunningham, 135 N.C. App. 24, 27, 519 S.E.2d
317, 320 (1999). Our standard of review of an order “determining
personal jurisdiction is whether the findings of fact by the trial
court are supported by competent evidence in the record; if so,
this Court must affirm the order of the trial court.” Wyatt v.
Walt Disney World Co., 151 N.C. App. 158, 163, 565 S.E.2d 705, 708
(2002).
When personal jurisdiction exists pursuant to our long arm
statute, the question collapses into the inquiry of whether the
respondent “has the minimum contacts necessary to meet the
requirements of due process.” Filmar Racing, Inc. v. Stewart, 141
N.C. App. 668, 671, 541 S.E.2d 733, 736 (2001). The requirements
of due process are met when a respondent's contacts with the forum
State are such that the maintenance of the suit would not offend
“traditional notions of fair play and substantial justice.”
International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed.
2d 95, 102 (1945). Factors to consider include the: “(1) quantity
of contacts, (2) nature and quality of the contacts, (3) . . .
source and connection of the cause of action to the contacts, (4)
. . . interest of the forum state and (5) convenience to the
parties.” Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 114,
516 S.E.2d 647, 650 (1999). “The test for minimum contacts is not
mechanical, but instead requires individual consideration of the
facts in each case.” Id. All factors “must be weighed in light of
fundamental fairness and the circumstances of each case.” CorbinRusswin, Inc. v. Alexander's Hardware, Inc., 147 N.C. App. 722,
725, 556 S.E.2d 592, 595 (2001).
In the instant case, although respondent lived in the State
for only one month, he had other contacts with the State.
Specifically, respondent and Jarrett's divorce proceeding was held
in Mecklenburg County, North Carolina. As part of the divorce
proceeding, Jarrett was awarded custody of Dawn Marie. Dawn Marie
resided in North Carolina. In addition, respondent removed Dawn
Marie from the custody of Jarrett, took Dawn Marie to Virginia,
where he petitioned the State of Virginia for custody, dropped his
petition for custody, and later returned Dawn Marie to Jarrett in
North Carolina.
Respondent's contacts with North Carolina are sufficient to
support the trial court's finding of personal jurisdiction.
Therefore, the clerk of superior court had personal jurisdiction
over respondent at the time the abandonment order was entered,
thereby rendering the order valid. Once the valid abandonment
order was entered, respondent was no longer a necessary party to
the adoption proceeding. The adoption of Dawn Marie by petitioner
remains valid. Respondent's assignment of error is overruled.
GEER, Judge concurring.
I concur fully with the majority opinion, but write separately
because I also believe that respondent is barred from challenging
the 25 October 1979 adoption order. Respondent contends, the trial
court assumed, and petitioner does not dispute that the statute in
existence in 1979 controls: "No adoption may be questioned by
reason of any procedural or other defect by anyone not injured by
such defect, nor may any adoption proceeding be attacked either
directly or collaterally by any person other than a biological
parent or guardian of the person of the child." N.C. Gen. Stat. §
48-28(a) (repealed effective 1 July 1996).
In 1996, the General Assembly amended North Carolina's
adoption laws, including N.C. Gen. Stat. § 48-28(a). The session
law provided that "[t]his act becomes effective July 1, 1996. Any
petition for adoption filed prior to and still pending on the
effective date of this act shall be completed in accordance with
the law in effect immediately prior to the effective date of this
act." 1995 N.C. Sess. Laws 457 § 12 (emphasis added). While the
petition for adoption at issue in this case was filed prior to the
effective date of the amendments, it was not still pending as of
the effective date. As a result, I believe the controlling law is
the statute that went into effect on 1 July 1996: N.C. Gen. Stat.
§ 48-2-607 (2003). Under N.C. Gen. Stat. § 48-2-607, a party to the adoption
proceedings who does not appeal the order "shall be fully bound by
the order." N.C. Gen. Stat. § 48-2-607(a). With respect to people
who were not parties to the adoption proceedings, the statute
provides: "No adoption may be attacked either directly or
collaterally because of any procedural or other defect by anyone
who was not a party to the adoption." Id. Parents or guardians
are, however, given a limited additional right to challenge an
adoption decree. N.C. Gen. Stat. § 48-2-607(c) provides in
pertinent part:
(c) A parent or guardian whose consent or
relinquishment was obtained by fraud or duress
may, within six months of the time the fraud
or duress is or ought reasonably to have been
discovered, move to have the decree of
adoption set aside and the consent declared
void. A parent or guardian whose consent was
necessary under this Chapter but was not
obtained may, within six months of the time
the omission is or ought reasonably to have
been discovered, move to have the decree of
adoption set aside.
N.C. Gen. Stat. § 48-2-607(c).
In short, because the adoption order was entered in 1979,
respondent could no longer move to set aside that order. This case
demonstrates why there is a need for finality in adoptions. An
order of adoption should not be subject to unraveling a quarter of
a century after it was entered.
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