{ "id": 8553662, "name": "THERESA K. POPE v. GEORGE NICK POPE", "name_abbreviation": "Pope v. Pope", "decision_date": "1978-10-17", "docket_number": "No. 7714DC863", "first_page": "328", "last_page": "332", "citations": [ { "type": "official", "cite": "38 N.C. App. 328" } ], "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": "56 L.Ed. 2d 132", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1490667 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/436/0084-01" ] }, { "cite": "176 S.E. 2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "788" } ], "opinion_index": 0 }, { "cite": "277 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563829 ], "year": 1970, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0223-01" ] }, { "cite": "432 F. Supp. 691", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5724782 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/432/0691-01" ] }, { "cite": "440 F. Supp. 612", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3966561 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/440/0612-01" ] }, { "cite": "50 Wis. 2d 638", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671415 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/wis-2d/50/0638-01" ] }, { "cite": "368 F. Supp. 1366", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5638191 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "1371-72" } ], "opinion_index": 0, "case_paths": [ "/f-supp/368/1366-01" ] }, { "cite": "133 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575789 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0635-01" ] }, { "cite": "231 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558922 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0674-01" ] }, { "cite": "223 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 112", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554351 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0112-01" ] }, { "cite": "136 S.E. 2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575575 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0764-01" ] }, { "cite": "244 S.E. 2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554833 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0586-01" ] } ], "analysis": { "cardinality": 501, "char_count": 10011, "ocr_confidence": 0.805, "pagerank": { "raw": 2.893994650729727e-07, "percentile": 0.8445363030817626 }, "sha256": "8e776d6020d4e8a38ceca63cbfcd8f7cf880f2b263794678231afa707fc59442", "simhash": "1:976fd0dfdcdbf751", "word_count": 1652 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Erwin concur." ], "parties": [ "THERESA K. POPE v. GEORGE NICK POPE" ], "opinions": [ { "text": "CLARK, Judge.\nThe sole question presented on appeal is whether or not G.S. 1-75.4(5)(c) grants in personam jurisdiction over a non-resident defendant in an action for arrearages due under a separation agreement. The defendant contends that the statute only applies to commercial contracts and that money is not a \u201cthing of value\u201d within the meaning of G.S. 1-75.4(5)(c). Therefore, defendant argues, the district court had no statutory basis for asserting in personam jurisdiction over the defendant and the default judgment should be set aside.\nG.S. 1-75.4 provides:\n\u201cA court of this State . . . has jurisdiction over a person . . . under any of the following circumstances:\n(5) Local . . . Contracts. \u2014 In any action which:\nc. Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff\u2019s benefit, by the defendant to deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value; . .\nA separation agreement is enforceable at law as is any other contract. Shaffner v. Shaffner, 36 N.C. App. 586, 244 S.E. 2d 444 (1978); Church v. Hancock, 261 N.C. 764, 136 S.E. 2d 81 (1964); see, Lee, North Carolina Family Law 3d, \u00a7 198, p. 414, \u00a7 201, p. 423 (1963). Since a separation agreement is treated just like any other contract under North Carolna law and since G.S. 1-75.4(5)(c), applies to \u201cLocal . . . Contracts,\u201d it is clear that the statute governs separation agreements as well as purely commercial contracts. In addition, other sections of the statute have been held to apply to domestic relations cases. In Sherwood v. Sherwood, 29 N.C. App. 112, 223 S.E. 2d 509 (1976), this court held that the abandonment of a spouse within the state was a \u201clocal act or injury\u201d within the purview of G.S. 1-75.4(3) and therefore the North Carolina courts had in personam jurisdiction over the defendant. Since that section of the same statute applies to domestic relations cases, it follows that section (5) was designed to govern domestic relations cases as well. G.S. 1-75.4 was designed to extend jurisdiction over non-resident defendants to the full extent permitted by the Due Process Clause of the Fourteenth Amendment. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E. 2d 629 (1977). Therefore, defendant\u2019s contention that the statutory provisions of G.S. l-75.4(5)(c) should be narrowly construed so as to exclude actions based upon separation agreements is contrary to the legislative and judicial mandate, and is without merit.\nDefendant next contends that money payments are not a \u201cthing of value\u201d within the meaning of G.S. l-75.4(5)(c).\nThe right of a married woman to support and maintenance is held in this State to be a property right. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963). A fortiori it is an asset or \u201cthing of value.\u201d See Munchak Corp. v. Riko Enterprises, Inc., 368 F. Supp. 1366 (M.D.N.C. 1973). The separation agreement entered into by the parties was essentially a release of marital rights in exchange for money payments. See Lee, supra, \u00a7 187 at 379. Since the money payments were exchanged for, and in consideration of, an asset or a thing of value, money payments are clearly a \u201cthing of value\u201d as well. In Munchak, supra, the court noted that \u201cthere is no need to engage in a laborious analysis of the meanings of the key terms in . . . the provisos set forth in \u00a7 1-75.4(4). To strictly construe the terms as set forth in those subsections so as to defeat in personam jurisdiction when such jurisdiction would be constitutionally permissible would conflict with the legislative and judicial mandate.\u201d 368 F. Supp. at 1371-72. Since defendant concedes that the exercise of jurisdiction in this case would not violate defendant\u2019s due process rights, the statutory terms of G.S. 1-75.4(5)(c) should be broadly construed. See, Sherwood, supra. We will therefore not engage in a laborious analysis of the term \u201cthings of value.\u201d Money payments are clearly a thing of value within the meaning of G.S. 1-75.4(5)(c).\nWe note that three cases from Wisconsin, which has a jurisdiction statute identical to G.S. 1-75.4, have held that money is not a \u201cthing of value.\u201d However, an examination of the cases (Nagel v. Crain Cutter Co., 50 Wis. 2d 638, 184 N.W. 2d 876 (1971); Universal Foods Corp. v. William Inglis & Sons Baking Co., 440 F. Supp. 612 (E.D. Wis. 1977) and Towne Realty, Inc. v. Bishop Enterprises, Inc., 432 F. Supp. 691 (1977)) reveals that the holdings were based on due process considerations rather than an interpretation of the statutory language. In all three of these cases the defendant\u2019s sole contact with the state was a payment of money to the plaintiff in Wisconsin. Under these circumstances the exercise of jurisdiction would have violated the defendant\u2019s due process rights. In the case sub judice the payment of money was based on the property right of support and maintenance resulting from a marital relationship within this State, and the exercise of jurisdiction would not violate defendant\u2019s due process rights. A narrow construction of the term \u201cthings of value\u201d would contravene the clear legislative intent. Therefore, we hold that money payments are a \u201cthing of value\u201d within the meaning of G.S. 1-75.4(5)(c).\nDefendant has conceded that the exercise of in personam jurisdiction by the district court fully comported with the due process requirements of the Fourteenth Amendment. The parties resided in North Carolina and were married and separated in North Carolina; the separation agreement was entered into in this State and the divorce was granted under North Carolina law. Clearly the defendant has \u201cpurposefully [availed] himself of the privilege of conducting activities within the forum state, [and has invoked] the benefits and protection of its law.\u201d Goldman v. Parkland, 277 N.C. 223, 229, 176 S.E. 2d 784, 788 (1970). In addition, it should be noted that a recent Supreme Court case, Kulko v. California Superior Court, \u2014 U.S. \u2014, 56 L.Ed. 2d 132, 98 S.Ct. 1690 (1978), indicates that asserting in personam jurisdiction in the case sub judice would comport with due process. In Kulko, the husband and wife entered into a separation agreement in New York. The wife obtained a Haitian divorce and then moved to California. The wife brought suit in California for modification of the custody and support provisions as set out in the separation agreement and as incorporated into the Haitian divorce decree. The California courts asserted jurisdiction. On appeal the Supreme Court reversed the California judgment, stating that suit should have been brought in New York. Although Kulko is essentially a \u201cmirror image\u201d of the case sub judice, the same propositions hold true \u2014 the proper forum is the state in which the separation agreement was entered into when one of the parties to the separation agreement is still a resident of that state. Therefore, the proper forum in this case is North Carolina.\nThe district court had in personam jurisdiction over the defendant pursuant to G.S. 1-75.4(5)(c). The order is affirmed.\nAffirmed.\nJudges Parker and Erwin concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Spears, Barnes & Baker by Robert F. Baker for defendant appellant.", "Bryant, Bryant, Drew and Grill by Victor S. Bryant, Jr., for plaintiff appellee." ], "corrections": "", "head_matter": "THERESA K. POPE v. GEORGE NICK POPE\nNo. 7714DC863\n(Filed 17 October 1978)\n1. Process \u00a7 9.1\u2014 arrearages under separation agreement \u2014 nonresident defendant \u2014 in personam jurisdiction\nDefendant\u2019s contention that G.S. l-75.4(5)(c) would not give the district court in personam jurisdiction over a nonresident defendant in an action for arrearages due under a separation agreement is without merit.\n2. Process \u00a7 9.1\u2014 jurisdiction over nonresident defendant \u2014money as a thing of value\nMoney payments are a \u201cthing of value\u201d within the meaning of G.S. l-75.4(5)(c).\n3. Husband and Wife \u00a7 13\u2014 arrearages under separation agreement \u2014 proper forum for action\nThe proper forum for an action for arrearages due under a separation agreement is the state in which the separation agreement was entered into when one of the parties to the separation agreement is still a resident of that state.\nAPPEAL by defendant from Moore, Judge. Order entered 22 August 1977 in District Court, DURHAM County. Heard in the Court of Appeals 16 August 1978.\nThe parties entered into a separation agreement in North Carolina on 3 November 1967 while both parties were citizens and residents of this State. The agreement provided, among other things, that the defendant would pay $350.00 per month to the plaintiff for support. The parties were divorced on 31 July 1969 in North Carolina. Some time after the separation agreement was entered into, defendant moved to Florida and has continued to reside there since that date.\nDefendant made payments as provided by the separation agreement until May 1976, but has made no payments since. On 16 September 1976, plaintiff brought suit in the District Court of Durham County for arrearages.\nPlaintiff asserted that the court had in personam jurisdiction over the defendant pursuant to G.S. l-75.4(5)(c) because the separation agreement was a local contract and the support payments a \u201cthing of value\u201d which were sent into this State. Plaintiff served the defendant in Florida pursuant to Rule 4(j)(9) of the North Carolina Rules of Civil Procedure. On 16 September 1976, copies of the summons and complaint were deposited at the post office for mailing by certified mail, return receipt requested, addressed to defendant. The return receipt shows that defendant received the summons and complaint on 27 September 1976.\nThe defendant failed to answer or defend and so on 12 November 1976, the Clerk of Superior Court of Durham County entered default and judgment by default for plaintiff.\nOn 29 July 1977, defendant moved to set aside the entry of default and the default judgment claiming that the court lacked personal jurisdiction over the defendant. On 22 August 1977, Judge Moore denied defendant\u2019s motion.\nSpears, Barnes & Baker by Robert F. Baker for defendant appellant.\nBryant, Bryant, Drew and Grill by Victor S. Bryant, Jr., for plaintiff appellee." }, "file_name": "0328-01", "first_page_order": 356, "last_page_order": 360 }