{ "id": 4159987, "name": "JOSEPH CALVIN WILSON, Plaintiff v. BARBARA BILTCLIFFE WILSON, Defendant", "name_abbreviation": "Wilson v. Wilson", "decision_date": "2008-08-05", "docket_number": "No. COA07-1524", "first_page": "789", "last_page": "795", "citations": [ { "type": "official", "cite": "191 N.C. App. 789" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "649 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639270 ], "year": 2007, "pin_cites": [ { "page": "661", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0658-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "233 S.W.3d 168", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6136702 ], "year": 2006, "pin_cites": [ { "page": "171-72" } ], "opinion_index": 0, "case_paths": [ "/ark-app/95/0042-01" ] }, { "cite": "656 N.Y.S.2d 93", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 313515 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/misc2d/171/0832-01" ] }, { "cite": "847 N.E.2d 22", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "27", "parenthetical": "\"A signed return receipt constitutes evidence of delivery pursuant to Civ.R. 4.1(A), but the rule does not bar introduction of other evidence to establish certified mail delivery.\" (Citation omitted)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "190 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "194", "parenthetical": "\"A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.\" Citations omitted" }, { "page": "194", "parenthetical": "citations omitted" }, { "page": "194" } ], "opinion_index": 0 }, { "cite": "281 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576386 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "705", "parenthetical": "\"A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3" }, { "page": "705" }, { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0697-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 50-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "532 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131960, 132306, 131970, 132311 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0092-04", "/nc/350/0092-02", "/nc/350/0092-01", "/nc/350/0092-03" ] }, { "cite": "501 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 794", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653108 ], "year": 1998, "pin_cites": [ { "page": "800" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0794-01" ] }, { "cite": "517 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "399", "parenthetical": "citing Calhoun v. Wayne Dennis Heating & Air Cond., 129 N.C. App. 794, 800, 501 S.E.2d 346, 350 (1998), disc. rev. denied, 350 N.C. 92, 532 S.E.2d 524 (1999)" }, { "page": "399" }, { "page": "399" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144517 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "350", "parenthetical": "citing Calhoun v. Wayne Dennis Heating & Air Cond., 129 N.C. App. 794, 800, 501 S.E.2d 346, 350 (1998), disc. rev. denied, 350 N.C. 92, 532 S.E.2d 524 (1999)" }, { "page": "350" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0348-01" ] }, { "cite": "185 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212179 ], "year": 2007, "pin_cites": [ { "page": "672", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0668-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] } ], "analysis": { "cardinality": 580, "char_count": 13928, "ocr_confidence": 0.735, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13560809915944907 }, "sha256": "3d624d81f38573a611843de01886ecc58baebf8073d37598aba5fa691ac4fa1e", "simhash": "1:8c29db6c0e3bae4b", "word_count": 2270 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and JACKSON concur." ], "parties": [ "JOSEPH CALVIN WILSON, Plaintiff v. BARBARA BILTCLIFFE WILSON, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nBarbara Biltcliffe Wilson (\u201cdefendant\u201d) appeals from judgment entered, which granted Joseph Calvin Wilson (\u201cplaintiff\u2019) an absolute divorce from defendant. We affirm.\nI. Background\nPlaintiff and defendant were married on or about 14 June 1964 and separated on 30 July 2001. On 13 April 2006, plaintiff filed a verified complaint in which he sought \u201cthe bonds of matrimony heretofore existing between [p]laintiff and [defendant be dissolved, and that [p]laintiff and [defendant be granted an absolute divorce from each other.\u201d Plaintiff failed to achieve service of process on defendant after the issuance of summonses on 13 April 2006, 24 May 2006, 11 September 2006, 5 December 2006, 28 February 2007, and 24 April 2007.\nOn 1 August 2007, plaintiff alleged service of process was accomplished on 22 May 2007 and moved for summary judgment. The hearing for summary judgment was held 20 August 2007. The district court granted plaintiff an absolute divorce from defendant and filed its judgment on 23 August 2007. Defendant appeals.\nII.Issues\nDefendant argues the district court erred when it entered its judgment because: (1) defendant was not given proper notice of the summary judgment hearing and (2) the trial court lacked jurisdiction.\nIII.Standard of Review\nSummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to a judgment as a matter of law. On appeal of a trial court\u2019s allowance of a motion for summary judgment, we consider whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Evidence presented by the parties is viewed in the light most favorable to the non-movant.\nSummey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (internal citation and quotation omitted).\n\u201cWe review an order allowing summary judgment de novo. If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\u201d Wilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007) (internal citation and quotation omitted).\nIV.Notice\nDefendant asserts she did not receive adequate and proper notice of the summary judgment hearing because the notice of hearing only stated the date and not the time of the hearing. We disagree.\nMotions for summary judgment are governed by Rule 56 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. \u00a7 1A-1, Rule 56 (2007). \u201cThe motion shall be served at least 10 days before the time fixed for the hearing.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c). \u201cAlthough Rule 56 makes no direct reference to notice of hearing, this Court has held that such notice also must be given at least ten (10) days prior to the hearing.\u201d Barnett v. King, 134 N.C. App. 348, 350, 517 S.E.2d 397, 399 (1999) (citing Calhoun v. Wayne Dennis Heating & Air Cond., 129 N.C. App. 794, 800, 501 S.E.2d 346, 350 (1998), disc. rev. denied, 350 N.C. 92, 532 S.E.2d 524 (1999)).\nHere, plaintiff filed his motion for summary judgment and notice of hearing on 1 August 2007. The notice of hearing states \u201cthat on the 20[th] day of Aug[ust], 2007 the [p]laintiff will request the Judge presiding in Courtroom No. 8110 of the Civil Courts Building to grant the relief requested in [plaintiff's Motion for Summary Judgment, namely entry of a Judgment of Absolute Divorce.\u201d Attached to both the motion and notice were certificates of service signed by plaintiffs counsel on 31 July 2007.\nDefendant has failed to show that she did not receive notice of hearing on plaintiffs motion for summary judgment \u201cat least ten (10) days prior to the hearing.\u201d Barnett, 134 N.C. App. at 350, 517 S.E.2d at 399. Plaintiffs notice of hearing was adequate and proper in light of Rule 56(c) of the North Carolina Rules of Civil Procedure. This assignment of error is overruled.\nV. Service of Process\nDefendant argues the district court lacked subject matter and personal jurisdiction because she was not properly served with the summons and complaint prior to the trial court\u2019s entry of absolute divorce. We disagree.\nA. Subject Matter Jurisdiction\n\u201cThe district court division is the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for . . . divorce . . . .\u201d N.C. Gen. Stat. \u00a7 7A-244 (2005). \u201cIn North Carolina, subject matter jurisdiction for divorce involves not only bringing the matter in the correct court, but also the court\u2019s finding residence by one of the parties for the requisite length of time and verification of the pleadings.\u201d 2 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 7.25, at 88 (5th ed. 1999) (citations omitted); see also N.C. Gen. Stat. \u00a7\u00a7 50-6, -8 (2005).\nHere, plaintiff filed a verified complaint with the Mecklenburg County District Court. The district court found: (1) \u201c[p]laintiff has been a citizen and resident of the State of North Carolina-for more than six months next preceding the. institution of this action[]\u201d and (2) \u201c[p]laintiff and [defendant have lived separate and apart for more than one year next preceding the institution of this action without resuming the marital relationship.\u201d The district court\u2019s findings are supported by plaintiffs verified complaint, which may be treated as an affidavit. SeePage v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972) (\u201cA verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.\u201d Citations omitted)).\nThe district court properly exercised jurisdiction over the subject matter of the parties\u2019 divorce action. N.C. Gen. Stat. \u00a7\u00a7 7A-244, 50-6, 50-8. This assignment of error is overruled.\nB. Personal Jurisdiction\nDefendant asserts the district court did not acquire personal jurisdiction over her. We disagree.\nIn any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:\n(1) Natural Person.\u2014Except as provided in subsection (2) below, upon a natural person by one of the following:\nc. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 4(j) (2007).\nWhere the defendant appears in the action and challenges the service of the summons upon him, proof of the service of process shall be as follows:\n(4) Service by Registered or Certified Mail. \u2014 In the case of service by registered or certified mail, by affidavit of the serving party averring:\na. That a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested;\nb. That it was in fact received as evidenced by the attached registry receipt or other evidence satisfactory to the court of delivery to the addressee; and\nc. That the genuine receipt or other evidence of delivery is attached.\nN.C. Gen. Stat. \u00a7 1-75.10 (2007) (emphasis supplied).\nHere, plaintiff filed an affidavit of service by certified mail on 7 June 2007. The affidavit stated that \u201ccopies of a Civil Summons and Complaint were deposited in the U.S. Post Office for mailing by certified mail, return receipt requested, addressed to [defendant] . . . .\u201d Attached to plaintiffs affidavit was: (1) a receipt for certified mail which showed item number 7160 3901 9848 8335 2054 was mailed on 3 May 2007 and (2) a track/confirm sheet from the U.S. Post Office which indicated item number 7160 3901 9848 8335 2054 was delivered to and signed for by defendant on 22 May 2007 at 11:36 a.m.\nIt is clear from plaintiffs affidavit of service by certified mail and attachments thereto with defendant\u2019s signature appearing thereon that the summons and complaint were personally served upon defendant pursuant to Rule 4(j)(l)(c) of the North Carolina Rules of Civil Procedure.\nOur holding is also consistent with other jurisdictions, which have held service to be sufficient when reviewing facts similar to those at bar. See In re Estate of Riley, 847 N.E.2d 22, 27 (Ohio Ct. App. 2006) (\u201cA signed return receipt constitutes evidence of delivery pursuant to Civ.R. 4.1(A), but the rule does not bar introduction of other evidence to establish certified mail delivery.\u201d (Citation omitted)); see also Lauer v. City of New York, 656 N.Y.S.2d 93 (1997); compare Connally v. Connally, 233 S.W.3d 168, 171-72 (Ark. App. 2006) (\u201cWe see no evidence in the record that [the defendant] signed for the package or that the [third party] was [the defendant\u2019s] authorized agent, and, during oral argument, [the plaintiff\u2019s] counsel could not direct us to any such evidence. We therefore agree with the trial court that [the defendant] was not served by commercial delivery.\u201d).\nThe district court properly exercised personal jurisdiction over defendant. This assignment of error is overruled.\nVI. Sufficiency of the Evidence\nN.C. Gen. Stat. \u00a7 50-6 states:\nMarriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.\nIn its order granting plaintiff an absolute divorce from defendant, the district court found: (1) \u201c[p]laintiff has been a citizen and resident of the State of North Carolina for more than six months next preceding the institution of this action[]\u201d and (2) \u201c[p]laintiff and [defendant have lived separate and apart for more than one year next preceding the institution of this action without resuming the marital relationship.\u201d These findings are supported by allegations asserted in plaintiffs verified complaint.\n\u201cA verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.\u201d Page, 281 N.C. at 705, 190 S.E.2d at 194 (citations omitted). Here, plaintiffs verified complaint meets the elements articulated by our Supreme Court in Page, contains allegations consistent with the trial court\u2019s order and was properly treated as an affidavit. 281 N.C. at 705, 190 S.E.2d at 194.\nFurther, defendant has not assigned any error to these findings. \u201cWhere no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted). Uncontradicted and competent evidence supports the district court\u2019s findings of fact, which in turn support its conclusion to grant plaintiff an absolute divorce from defendant.\nVIL Conclusion\nDefendant received adequate and proper notice of the hearing on plaintiff\u2019s motion for summary judgment \u201cat least ten (10) days prior to the hearing.\u201d Barnett, 134 N.C. App. at 350, 517 S.E.2d at 399; N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c).\nThe district court of Mecklenburg County properly exercised subject matter and personal jurisdiction over the parties\u2019 divorce action and defendant, respectively. Competent evidence supports the district court\u2019s unchallenged findings of fact. The district court found and concluded plaintiff had met all statutory requirements and properly granted plaintiff an absolute divorce from defendant. The judgment appealed from is affirmed.\nAffirmed.\nJudges HUNTER and JACKSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "No brief filed by plaintiff", "Barbara Biltcliffe Wilson, pro-se, for defendant-appellant." ], "corrections": "", "head_matter": "JOSEPH CALVIN WILSON, Plaintiff v. BARBARA BILTCLIFFE WILSON, Defendant\nNo. COA07-1524\n(Filed 5 August 2008)\n1. Civil Procedure\u2014 summary judgment hearing \u2014 notice\nThe trial court did not err in a divorce case by concluding defendant wife received adequate and proper notice of the summary judgment hearing, even though defendant contends the notice of hearing only stated the date and not the time of the hearing, because: (1) defendant failed to show that she did not receive notice of hearing on plaintiff\u2019s motion for summary judgment at least ten days prior to the hearing as required by N.C.G.S. \u00a7 1A-1, Rule 56(c); and (2) plaintiff\u2019s notice of hearing was adequate in light of N.C.G.S. \u00a7 1A-1, Rule 56(c).\n2. Divorce\u2014 absolute \u2014 subject matter jurisdiction \u2014 personal jurisdiction \u2014 proper notice and service\nThe district court did not lack subject matter jurisdiction and personal jurisdiction even though defendant wife contends she was not properly served with the summons and complaint prior to the trial court\u2019s entry of absolute divorce because: (1) in regard to subject matter jurisdiction, the court found that plaintiff had been a citizen and resident of North Carolina for more than six months next preceding the institution of this action, and plaintiff and defendant have lived separate and apart for more than one year without resuming the marital relationship; (2) in regard to personal jurisdiction, plaintiff filed an affidavit of service by certified mail on 7 June 2007; (3) plaintiff\u2019s verified complaint contained allegations consistent with the trial court\u2019s order and was properly treated as an affidavit; and (4) competent evidence supported the court\u2019s unchallenged findings of fact.\nAppeal by defendant from judgment entered 23 August 2007 by Judge Ben S. Thalheimer in Mecklenburg County District Court. Heard in the Court of Appeals 11 June 2008.\nNo brief filed by plaintiff\nBarbara Biltcliffe Wilson, pro-se, for defendant-appellant." }, "file_name": "0789-01", "first_page_order": 821, "last_page_order": 827 }