Estoppel--judicial estoppel-_inconsistent legal contentions on child support
The doctrine of judicial estoppel precluded defendant father from challenging the service
of process of the civil summons and complaint in the mother's action for divorce from bed and
board and child support, and thus, the trial court's denial of defendant's motion to dismiss the
child support complaint based on insufficient service of process is affirmed because: (1) the
equitable doctrine of judicial estoppel prevents the use of intentional self-contradiction as a
means of obtaining unfair advantage in a forum provided for suitors seeking justice; (2)
defendant's legal contention in the State of Washington that the March 1994 child support order
entered in Guilford County was conclusive on the issue of support, and his legal argument in
North Carolina that the case should be dismissed and the child support order vacated based on
improper service, are inconsistent legal contentions; and (3) defendant did not seek a ruling from
the court until after his children had reached the age of majority, and a ruling in defendant's
favor would prejudice plaintiff as she would be precluded from seeking arrears or child support
as the children had reached the age of majority.
Guilford County Attorney's Office, by Deputy County Attorney
Michael K. Newby, for plaintiff-appellee.
Tate Law Offices, by C. Richard Tate, Jr., for defendant-
appellant.
HUNTER, Judge.
Mark Astor Price (“defendant”) challenges the trial court's
denial of his motion to dismiss plaintiff's complaint seeking,
inter alia, child support. Defendant contends the trial court
lacked personal jurisdiction to enter the child support order
because the civil summons and complaint were not properly served.
Therefore, defendant contends the trial court's 11 December 2002order determining defendant owed $187,680.30 in child support
arrears and ordering defendant to pay the arrears in monthly
installments of $1,904.00 should be vacated. After careful
consideration, we conclude defendant was barred by the doctrine of
judicial estoppel from challenging the sufficiency of service of
process.
Darlene Price (“plaintiff”) and defendant were married on 15
February 1981, and had two children born in 1982 and 1984. The
parties separated in July 1993, and plaintiff filed for a divorce
from bed and board in October 1993. She also sought custody of the
children, child support, alimony, and possession of the marital
home and other marital property. A civil summons was issued on 5
October 1993, but the return of service, dated 9 November 1993,
indicates a sheriff's deputy was unable to serve defendant. A
notation on the return of service, dated 10 November 1993, states
“plaintiff advised def[endan]t now living on Hwy 26 Orangeburg,
South Carolina.” According to an affidavit of service, an
Orangeburg, South Carolina deputy sheriff served defendant on 17
November 1993 by delivering a copy of the civil summons to
defendant's fiancé, “a person of discretion residing at the
defendant's residence[] and leaving with her one copy of same at
301 Truckstop . . . .”
After a February 1994 hearing, the trial court entered an
order on 29 March 1994 indicating defendant had been properly
served as evidenced by a sheriff's affidavit of service from the
Orangeburg, South Carolina Sheriff's Department. In this order,the trial court granted plaintiff a divorce from bed and board, and
inter alia, ordered defendant to pay $1,904.46 per month in child
support. After defendant failed to pay child support the following
month, an order to show cause was issued requiring defendant to
appear in court on 1 July 1994. According to the return of
service, the order to show cause was served on 9 May 1994 by
leaving a copy of the order at a residence located at 2713
Lafayette Street in Guilford County, which was purportedly
defendant's usual place of abode. The order was left with
defendant's friend living at the residence. After defendant failed
to appear at the show cause hearing, an order for arrest was
issued. The return of service on the order for arrest, dated 21
September 1994, indicates defendant was not served because he did
not live at the 2713 Lafayette Street address.
On 4 May 1995, a motion and notice of hearing for modification
of child support order was filed by the assistant county attorney.
According to the motion, defendant's residence was in Fossil,
Oregon, and defendant was served via U.S. mail. After defendant
failed to appear at another show cause hearing, an order for arrest
was issued, which indicated defendant's address was at his place of
business in Archdale, North Carolina. The order for arrest was not
served, and the 2 August 1995 return of service indicated defendant
had not worked at the address for over a year. Thereafter, on 3
October 1995, the trial court authorized the withholding of
defendant's wages in the order modifying child support. The next year, plaintiff's attorney filed a motion for
contempt on 1 May 1996, as defendant had failed to make any child
support payments. A copy of the motion and notice for hearing was
sent to defendant at his residence in Seattle, Washington, via
certified mail. After receiving the motion and hearing notice,
defendant moved to dismiss on 27 June 1996 for lack of personal
jurisdiction. According to defendant's affidavit, he contended he
had never lived at 301 Truck Stop in Orangeburg, South Carolina,
that there was no residence or dwelling house at that location, and
that he had never received any papers or documents relating to this
matter. The trial court did not rule upon these motions until
2002.
Prior to filing his motion to dismiss, defendant filed an
amended petition for dissolution of marriage on 8 April 1996 in the
State of Washington. In the petition, defendant acknowledges the
existence of the 29 March 1994 order entered in Guilford County,
North Carolina, and states “[t]he effect of this order is
conclusive” on the issue of child support.
In September 2002, the child support order was terminated as
the two children had reached the age of majority and were no longer
in primary or secondary school. On 12 November 2002, another
motion to show cause was filed by plaintiff's counsel, and on 18
November 2002, defendant filed another motion to dismiss. In an 11
December 2002 order, the trial court determined defendant's arrears
were $187,680.30 and ordered defendant to pay $1,904.00 per month
until the arrears were paid in full. Defendant's motion to dismissfiled on 27 June 1996 was denied in a 7 January 2003 order.
Defendant then filed a notice of appeal to this Court from the 16
September 2002 and 7 January 2003 orders.
Defendant contends the trial court should have granted his
motion to dismiss for insufficiency of service of process, and that
the trial court should have vacated the 1994 child support order
and all subsequent orders based upon the initial child support
order, including the 11 December 2002 order ordering defendant to
pay $187,680.30 in arrears. We do not reach the issue of whether
there was sufficient service of process because defendant's
arguments are barred by judicial estoppel.
In Whitacre P'ship[ v. Biosignia, Inc., 358
N.C. 1, 28, 591 S.E.2d 870, 888 (2004)], the
North Carolina Supreme Court adopted the test
for judicial estoppel set forth by the United
States Supreme Court in New Hampshire v.
Maine, 532 U.S. 742, 149 L. Ed. 2d 968, reh'g
denied, 533 U.S. 968, 150 L. Ed. 2d 793
(2001). Id. While noting that “the
circumstances under which judicial estoppel
may appropriately be invoked are probably not
reducible to any general formulation of
principle,” [i]d. (citation omitted), the
Court identified three factors used to
determine if the doctrine should apply. Id.
The first factor, and the only factor
that is an essential element which must be
present for judicial estoppel to apply, id. at
28 n.7, 591 S.E.2d at 888 n.7, is that a
“party's subsequent position 'must be clearly
inconsistent with its earlier position.'” Id.
at 29, 591 S.E.2d 888 (internal citations
omitted). Second, the court should “inquire
whether the party has succeeded in persuading
a court to accept that party's earlier
position.” Id. at 29, 591 S.E.2d at 889.
Third, the court should inquire “whether the
party seeking to assert an inconsistent
position would derive an unfair advantage or
impose an unfair detriment on the opposingparty if not estopped.” Id. (citation
omitted). Judicial estoppel is an “equitable
doctrine invoked by a court at its
discretion.” Id. (citation omitted).
Wiley v. United Parcel Serv., Inc., 164 N.C. App. 183, 188, 594
S.E.2d 809, 812 (2004); see also Whitacre P'ship v. Biosignia,
Inc., 358 N.C. at 28, 591 S.E.2d at 888.
“Judicial estoppel, or preclusion against inconsistent
positions, is an equitable doctrine designed to protect the
integrity of the courts and the judicial process. . . . [It] is to
prevent litigants from playing 'fast and loose' with the courts and
deliberately changing positions according to the exigencies of the
moment.” Medicare Rentals, Inc. v. Advanced Services, 119 N.C.
App. 767, 769-70, 460 S.E.2d 361, 363 (1995). Thus, “[j]udicial
estoppel forbids a party from asserting a legal position
inconsistent with one taken earlier in the same or related
litigation. The doctrine prevents the use of 'intentional self-
contradiction . . . as a means of obtaining unfair advantage in a
forum provided for suitors seeking justice.'” Id. at 769, 460
S.E.2d at 363 (citations omitted).
In April 1996, defendant filed a petition for dissolution of
marriage in the State of Washington, and in the petition, defendant
stated:
On March 25, 1994 an order was entered in the
General Court of Justice, District Court
Division of Guilford County, North Carolina
concerning the marriage of Petitioner and
Respondent. . . . As the Plaintiff, Darlene
Elizabeth Price was granted a “Divorce from
Bed and Board” which provided for child
support, custody, maintenance, division and
possession of property, attorney fees, andwage withholding. The effect of this order is
conclusive on the above issues, but the order
does not grant a divorce to the parties. The
Petitioner here, Mark Astor Price, therefore
seeks a Decree of Dissolution from the above-
entitled court.
According to the law of the State of Washington:
In entering a decree of dissolution of
marriage . . . , the court shall determine the
marital status of the parties, make provision
for a parenting plan for any minor child of
the marriage, make provision for the support
of any child of the marriage entitled to
support . . . .
Wash. Rev. Code § 26.09.050 (1996) (emphasis added). Therefore, in
a petition for dissolution of marriage, the petitioner must allege
the names and ages of any dependent child and any arrangements for
support of the children. Wash. Rev. Code § 26.09.020 (1996). As
defendant stated in his petition for dissolution of marriage in the
State of Washington that a conclusive order had been entered in
North Carolina resolving the issue of child support, the courts in
the State of Washington were led to believe that there were no
issues regarding child support to be resolved.
After defendant filed his petition for dissolution of
marriage, plaintiff filed a motion for contempt in North Carolina
on 1 May 1996 based upon defendant's failure to pay, inter alia,
child support. Upon being served with the motion for contempt,
defendant moved to dismiss based upon insufficient service of
process. In his supporting affidavit, defendant stated that he had
never lived at 301 Truck Stop in Orangeburg, South Carolina, and
had never been served in this matter. Defendant's motion to
dismiss was not heard until November 2002, after his children hadreached the age of majority and plaintiff was no longer entitled to
child support.
Defendant's legal contention in the State of Washington that
the March 1994 order entered in Guilford County was conclusive on
the issue of child support, and his legal argument in North
Carolina that the case should be dismissed and the child support
order vacated because service was improper are inconsistent legal
contentions. By stating the 1994 order was conclusive in his
Washington petition for dissolution of marriage, defendant led the
Washington courts to believe the child support issue had been
properly resolved. Then, defendant presented an inconsistent legal
contention in North Carolina by challenging the child support order
by arguing service of process was improper. After the motion,
defendant did not seek a ruling from the court until after his
children had reached the age of majority. A ruling in defendant's
favor would prejudice plaintiff as she would be precluded from
seeking arrears or child support as the children had reached the
age of majority.
As previously stated, the doctrine of judicial estoppel
“prevents the use of 'intentional self-contradiction . . . as a
means of obtaining unfair advantage in a forum provided for suitors
seeking justice.'” Medicare Rentals, 119 N.C. App. at 769, 460
S.E.2d at 363. In our discretion, we invoke the doctrine of
judicial estoppel and preclude defendant from challenging the
service of process of the civil summons and complaint for divorce
from bed and board. See Whitacre P'ship, 358 N.C. at 38, 591
S.E.2d at 894-95 (quoting New Hampshire v. Maine, 532 U.S. at 750,
149 L. Ed. 2d at 977-78 (citation omitted), which states “judicialestoppel 'is an equitable doctrine invoked by a court at its
discretion'”). Accordingly, we affirm the trial court's denial of
defendant's motion to dismiss for insufficient service of process.
Affirmed.
Judges CALABRIA and LEVINSON concur.
*** Converted from WordPerfect ***