Gyger v. Clement

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-244

Filed: 18 December 2018

Guilford County, No. 16-CVD-5358

EVE GYGER, Plaintiff,

v.

QUINTIN CLEMENT, Defendant.

Appeal by plaintiff from orders entered 30 November 2017 and 2 January 2018

by Judge Lora C. Cubbage in Guilford County District Court. Heard in the Court of

Appeals 3 October 2018.

George Daly for plaintiff-appellant.

Coltrane & Overfield, PLLC, by Wendy M. Enochs, for defendant-appellee.

ZACHARY, Judge.

Plaintiff-Mother Eve Gyger appeals from the trial court’s order denying her

Rule 60 motions for relief from an order vacating the registration of her foreign

support order. For the reasons explained below, we affirm the trial court’s ruling.

Factual and Procedural History

Between 1997 and 1999, Plaintiff-Mother and Defendant-Father were involved

in a romantic relationship while living in North Carolina. The parties had two

children born in May 2000 in Geneva, Switzerland. On 24 October 2007, Plaintiff-

Mother, through the children’s guardian, initiated an action in the Court of First

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Opinion of the Court

Instance, Third Chamber, Republic and Canton of Geneva against Defendant-Father

to establish paternity and child support. Defendant-Father did not appear in person

or through counsel. On 14 December 2009, the Swiss court entered judgment against

Defendant-Father on both counts.

In May 2014, the Swiss Central Authority for International Maintenance

Matters, on behalf of Plaintiff-Mother and the minor children, applied to register and

enforce the Swiss support order with the North Carolina Department of Health and

Human Services, Office of Child Support Enforcement. The application and

supporting documentation sent from Switzerland included a limited power of

attorney authorizing the North Carolina Child Support Enforcement Agency, as the

central authority of the debtor’s country of residence,

to represent the [Plaintiff-Mother] in dealings with all

authorities and before all courts, to accept payments, to

bring or respond to civil and criminal proceedings, to make

use of any legal remedies, to reach settlements, and to

waive or acknowledge claims. [The North Carolina Child

Support Enforcement] Agency is authorised to grant

substitute powers of attorney to other authorities or

persons.

The application also included copies of court documents written in French, the official

language of the Swiss court, as well as English translations certified by a Swiss court

translator.

The Guilford County Clerk of Court registered the Swiss support order for

enforcement on 13 June 2016. Defendant-Father was served with a Notice of

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Registration of Foreign Support Order on 20 June 2016, and on 1 July 2016,

Defendant-Father timely filed a Request for Hearing to “vacate the registration, to

contest the remedies being sought or the amount of the alleged arrears pursuant to

N.C. Gen. Stat. § 52C-6-607.” The IV-D Attorney1 for the Guilford County Child

Support Enforcement Agency notified Plaintiff-Mother of the hearing with a notice

for “Hearing to Register Foreign Support Order” mailed on 14 July 2016, care of the

Swiss Central Authority for Maintenance Matters Section for Private International

Law at its address in Bern, Switzerland.

On 2 September 2016, a hearing was conducted in Guilford County District

Court before the Honorable Lawrence McSwain. The trial court vacated the

registration of the foreign support order pursuant to N.C. Gen. Stat. §§ 52C-6-

607(a)(1) and 52C-7-706(b)(3) and dismissed the action, finding that the court file

lacked any evidence that Defendant-Father had been provided with proper notice of

the proceedings in Switzerland and an opportunity to be heard, and further, that

Defendant did not submit to the jurisdiction of Switzerland.

On 26 July 2017, Plaintiff-Mother filed a Motion for Relief from the trial court’s

order pursuant to N.C. Gen. Stat. § 1A-1, Rules 60(b)(1), (2), (4), and (6), and

1 The IV-D attorney represents the interests of the people of the State of North Carolina in

court proceedings regarding, inter alia, the establishment of paternity as well as the establishment

and enforcement of child support obligations, and provides service under Title IV-D of the Social

Security Act. See 42 U.S.C. §§ 651-69b (2016).

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thereafter filed two amended motions.2 The trial court conducted a hearing on

Plaintiff-Mother’s 60(b) motions on 6 October 2017. Plaintiff-Mother did not appear

at the hearing, but attempted through counsel to introduce two affidavits and the

transcript of a deposition of Defendant-Father. The trial court admitted the

deposition and transcript into evidence, but excluded the affidavits. The trial court

excluded the first affidavit, an “Affidavit of Eve Gyger” purportedly signed by

Plaintiff-Mother, because it was not notarized, and Plaintiff-Mother was not present

to be examined. The second affidavit, an “Affidavit of Translation” containing

English translations by a French translator professing to demonstrate that certain

translations of the Swiss court’s file were erroneous, was not admitted because the

translator was not present in court and a third-party translation may not be

substituted for the original translation provided by the Swiss court. In addition,

Leilani Morange, Plaintiff-Mother’s caseworker with the Guilford County Child

Support Enforcement Agency, testified that it was her office’s procedure to send all

correspondence to plaintiffs in interstate and international child support enforcement

cases to the agency that initiated the action on behalf of the plaintiff.

2 The Second Amended Motion for Relief from Final Order, the only motion for relief contained

in the record on appeal, listed in its caption bases for relief under Rules 60(b)(2), (4), and (6). However,

in the body of the motion, Appellant argued Rule 60(b)(1) but not Rule 60(b)(2). The trial court

addressed Rules 60(b)(1) and (2) in its order. Appellant’s brie to this Court addressed only Rules

60(b)(1),(4), and (6). As a result, Appellant abandoned any appeal based on Rule 60(b)(2). See N.C.R.

App. P. 28(a) (“Issues not presented and discussed in a party’s brief are deemed abandoned.”).

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By orders entered 30 November 2017 and 2 January 2018, the trial court

denied Plaintiff-Mother’s motions for relief from judgment under Rules 60(b)(1), (2),

(4), and (6). Plaintiff-Mother timely appealed.

Background

In order to simplify and streamline the procedures by which, inter alia, a child

support order rendered in another jurisdiction could be enforced, the General

Assembly adopted the Uniform Interstate Family Support Act. See 42 U.S.C. § 666

(2017); N.C. Gen. Stat. §§ 52C-1-100 to 52C-9-902 (2017). A support order is:

a judgment, decree, order, decision, or directive, whether

temporary, final, or subject to modification, issued in a

state or a foreign country for the benefit of a child, a spouse,

or a former spouse, which provides for monetary support,

health care, arrearages, retroactive support, or

reimbursement for financial assistance provided to an

individual obligee in place of child support.

Id. § 52C-1-101(21). “A support order . . . issued in another state or a foreign support

order may be registered in this State for enforcement.” Id. § 52C-6-601. A foreign

support order is a support order of a foreign tribunal authorized to issue such orders.

See id. § 52C-1-101(3b), (3c). A foreign country “means a country, including a political

subdivision thereof, other than the United States, that authorizes the issuance of

support orders and . . . has been declared under the law of the United States to be a

foreign reciprocating country.” Id. § 52C-1-101(3a)(a). Federal law allows the United

States Secretaries of State and Health and Human Services to declare any foreign

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country to be a foreign reciprocating country “if the foreign country has established,

or undertakes to establish, procedures for the establishment and enforcement of

duties of support owed to obligees who are residents of the United States,” provided

that such procedures conform with standards prescribed by law. 42 U.S.C. §

659a(a)(1) (2017).

On 31 August 2004, a child support reciprocity agreement between

Switzerland and the United States was entered into and Switzerland was declared a

foreign reciprocating country. See Agreement Between the Government of the United

States of America and the Government of the Swiss Confederation for the

Enforcement of Maintenance (Support) Obligations, Switz.-U.S, Aug. 31, 2004,

T.I.A.S. No. 04-930.1, [https://perma.cc/C8TX-K8SU]. Regarding recognition and

enforcement of maintenance decisions, the agreement states:

1. Maintenance decisions, including maintenance decisions

arising from a determination of parentage, from the

Requesting Party [here, Switzerland] shall be recognized

and enforced in the Requested Party [here, North Carolina]

to the extent that the facts in the case support recognition

and enforcement under the applicable laws and procedures

of the Requested Party.

2. Maintenance decisions made after the failure of the

respondent to appear shall be considered as decisions

under paragraph 1 if it is demonstrated that notice had

been given and the opportunity to be heard had been

satisfied in a way to satisfy the standards of [North

Carolina].

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Id. art. 7. The agreement requires that the “Requesting Party,” in this case

Switzerland, transmit the application for enforcement with the requisite supporting

documentation, including the decision of the local tribunal, to the North Carolina

Child Support Enforcement Agency as the responsible public body of the Department

of Health and Human Services, Office of Child Support Enforcement. See id. art. 4,

cl. 3. However, for a foreign decision or order to be recognized and enforced, the

application shall include “evidence that the respondent has appeared in the

proceedings or has been given notice and an opportunity to appear.” Id. art. 4, cl.

5(b).

Once a requesting party registers a foreign support order for enforcement

pursuant to N.C. Gen. Stat. § 52C-6-602, the non-registering party, the individual

from whom support is being sought, must be notified of the registration of the support

order and informed of the opportunity to contest the validity or enforcement of the

order within twenty days after receiving notice. Id. § 52C-6-605. “A party contesting

the validity or enforcement of a registered support order or seeking to vacate the

registration has the burden of proving” at least one of several enumerated defenses,

including that “[t]he issuing tribunal lacked personal jurisdiction over the contesting

party.” Id. § 52C-6-607(a)(1).

Rule 60(b) Motions for Relief from Judgment

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Described as “a grand reservoir of equitable power to do justice in a particular

case,” Sloan v. Sloan, 151 N.C. App. 399, 404, 566 S.E.2d 97, 101 (2002), Rule 60(b)

provides that “[o]n motion and upon such terms as are just, the court may relieve a

party . . . from a final . . . order . . . for the following reasons: (1) [m]istake,

inadvertence, surprise, or excusable neglect; . . . (4) [t]he judgment is void; [or] (6)

[a]ny other reason justifying relief from the operation of the judgment.” N.C. Gen.

Stat. § 1A-1, Rules 60(b)(1), (4), (6) (2017). “The purpose of Rule 60(b) is to strike a

proper balance between the conflicting principles of finality and relief from unjust

judgments. Generally, the rule is liberally construed.” Harris v. Harris, 162 N.C.

App. 511, 513, 591 S.E.2d 560, 561 (2004).

A Rule 60(b) motion “is addressed to the sound discretion of the trial court, and

will be disturbed on appeal only upon a showing of an abuse of that discretion. The

trial court’s findings of fact are conclusive on appeal if there is any competent

evidence in the record to support them.” Brown v. Cavit Sci., Inc., 230 N.C. App. 460,

463, 749 S.E.2d 904, 907 (2013) (citation omitted). “An abuse of discretion occurs

when the trial court’s ruling is so arbitrary that it could not have been the result of a

reasoned decision.” Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101,

109, 493 S.E.2d 797, 802 (1997) (internal quotation marks omitted). However,

motions pursuant to Rule 60(b) may not be used as a substitute for appeal to correct

errors of law. Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006). In

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addition, our Supreme Court has directed that the discretionary ruling of a lower

court should not be disturbed on appeal unless it “probably amounted to a substantial

miscarriage of justice.” Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599,

605 (1982).

“Although the decision to set aside a judgment under Rule 60(b)(1) is a matter

within the trial court’s discretion, what constitutes excusable neglect is a question of

law which is fully reviewable on appeal.” In re Hall, 89 N.C. App. 685, 687, 366 S.E.2d

882, 884 (citation and internal quotation marks omitted), disc. review denied, 322

N.C. 835, 371 S.E.2d 277 (1988). “A Rule 60(b)(1) motion must be made within a

reasonable time, and the movant must show both the existence of one of the stated

grounds for relief, and a meritorious defense.” Id. at 686, 366 S.E.2d at 884 (citation

and internal quotation marks omitted).

Discussion

I. Rule 60(b)(1)

Plaintiff-Mother argues that the trial court erred in denying her motion for

relief from judgment pursuant to Rule 60(b)(1) because the trial court: 1) refused to

admit the “Affidavit of Eve Gyger,” 2) refused to admit the “Affidavit of Translation,”

and 3) proceeded with the hearing despite the lack of proper notice to Plaintiff-

Mother. These arguments are without merit, and we address each in turn.

1. Affidavit of Eve Gyger

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Although Plaintiff-Mother failed to attend the Rule 60(b) hearing, she

attempted through counsel to introduce an affidavit that was not notarized, but

purportedly bore her signature. Attached to the affidavit were other documents,

including third-party statements and documents that Plaintiff-Mother allegedly

obtained from the Swiss court. Plaintiff-Mother contended that these documents

were excluded from the record submitted by the Swiss authorities, which constituted

mistake and excusable neglect. The trial court refused to admit the affidavit and

attached documents into evidence because the “Plaintiff’s signature was not notarized

and she was not present in Court to be examined.”

On appeal, Plaintiff-Mother argues that the affidavit should have been

admitted pursuant to N.C. Gen. Stat. § 52C-3-315(b) (2017), which states that “[a]n

affidavit . . . which would not be excluded under the hearsay rule if given in person,

is admissible in evidence if given under penalty of perjury by a party or witness

residing outside this State.” Plaintiff-Mother’s argument is unavailing.

An affidavit is “[a] voluntary declaration of facts written down and sworn to by

the declarant before an officer authorized to administer oaths.” Affidavit, Black’s

Law Dictionary (8th ed. 2004). More than a century ago, our Supreme Court declared:

The essential requisites [of an affidavit] are, apart from the

title in some cases, that there shall be an oath administered

by an officer authorized by law to administer it, and that

what the affiant states under such oath shall be reduced to

writing before such officer. The signing or subscribing of

the name of the affiant to the writing is not generally

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essential to its validity; it is not, unless some statutory

regulation requires it, as is sometimes the case. It must be

certified by the officer before whom the oath was taken

before it can be used for legal purposes; indeed, it is not

complete or operative until this is done. The certificate,

usually called the jurat, is essential, not as part of the

affidavit, but as official evidence that the oath was taken

before a proper officer. The object of such an instrument is

to obtain the sworn statement of facts in writing of the

affiant in such official and authoritative shape, as that it

may be used for any lawful purpose, either in or out of

courts of justice. The signature of the affiant can in no

sense add to or give force to what is sworn, and what is

sworn is made to appear authoritatively by the certificate

of the officer.

Alford v. McCormac, 90 N.C. 151, 152-53 (1884) (some emphases added).

Because Plaintiff-Mother’s purported affidavit was not notarized, it lacked

proper certification and could not be used for legal purposes. Therefore, the trial

court was correct to exclude it from evidence.

2. Affidavit of Translation

At the Rule 60(b) hearing, Plaintiff-Mother’s counsel also attempted to

introduce into evidence the affidavit of a private-party translator, who was not

present to testify, to show alleged errors and discrepancies in the official English

translation of the Swiss court documents. The trial court found that “Plaintiff cannot

substitute a third party translation for the original translation provided by the Swiss

authorities.” The trial court further found that “the original translation supports the

Order [denying registration of the foreign support order].”

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Plaintiff-Mother alleges error to the trial court’s ruling in a one-paragraph

argument in her brief, and cites no case law or other authorities to support her

assertions. It is not the job of this Court to create an argument for an appellant. Viar

v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361, reh’g denied, 359

N.C. 643, 617 S.E.2d 662 (2005); N.C.R. App. P 28(b)(6). Therefore, we will not

address this argument.

3. Notice of Hearing

Plaintiff-Mother argues that the notice of hearing informing her of Defendant-

Father’s intention to contest the registration of the support order contained

materially misleading information and violated Rule 5 of the North Carolina Rules of

Civil Procedure, in that it was not sent to her last known address.

Regarding materially misleading information, Plaintiff-Mother argues that the

notice stated that a “hearing to register foreign support order” was scheduled for 2

September 2016. The support order had already been registered and the hearing was

actually to “contest the validity or enforcement of a registered support order” as

provided under N.C. Gen. Stat. § 52C-6-606. However, Plaintiff-Mother never raised

this issue below and we will not address it for the first time on appeal. See State v.

Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (2003) (“This Court will not consider

arguments based upon matters not presented to or adjudicated by the trial court.”).

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Concerning Plaintiff-Mother’s contention that the notice of hearing was sent

to the wrong location, the trial court found:

Plaintiff contends the September 27, 2016 Order is void

because she did not receive proper notice prior to the

September 2, 2016 hearing. No credible evidence supports

this contention. Defendant’s evidence shows and the Court

finds that the policy and procedures of the North Carolina

Guilford County Child Support Enforcement agency in an

interstate case are to send correspondence to a plaintiff to

the same agency that initiated the action on behalf of the

plaintiff. The Court further finds that Plaintiff signed a

power of attorney to give the agency authority to work on

Plaintiff’s behalf to obtain child support for the minor

children. A Notice of Hearing was sent to Plaintiff on July

12, 2016 to Eve Gyger c/o SZ Section for Private Int Law,

Central Authority for Maintenance Matter, Bundesrain 20,

Bern Switzerland. SZ Section for Private Int Law is the

agency that initiated the action on behalf of the Plaintiff.

....

Plaintiff received proper notice of the hearing scheduled for

September 2, 2016. The September 27, 2016 Order of the

Honorable Judge Lawrence McSwain is not void.

(Emphasis added).

Our statutes provide that “[i]f the party has no attorney of record, service shall

be made upon the party . . . [b]y mailing a copy to the party at the party’s last known

address or, if no address is known, by filing it with the clerk of court.” N.C. Gen. Stat.

§ 1A-1, Rule 5(b)(2)b (2016). However, Plaintiff-Mother was not an unrepresented

party. This action, as the trial court correctly noted, was initiated by the Swiss

Central Authority, and Plaintiff-Mother executed a limited power of attorney

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granting the North Carolina Child Support Enforcement Agency the authority “to

represent [her] in dealings with all authorities and before all courts[.]”3

A IV-D agent of the Guilford County Child Support Enforcement Agency

testified that it was her office’s policy in international child support cases to send all

communications and correspondence directly to the agency initiating the support

request. The IV-D attorney informed Plaintiff-Mother, in accordance with federal

and state agency policy, of the scheduled hearing to contest the registration of the

foreign support order by mailing the notice of hearing to the Swiss Central Authority

in Bern, Switzerland. See A Caseworker’s Guide to Processing Cases with

Switzerland, Office of Child Support Enforcement, 8 (2009), [https://perma.cc/VK97-

4XBC] (“All correspondence to Switzerland must be sent to the Swiss Central

Authority in Bern[ ] . . . .”); Child Support Services Manual: Intergovernmental, N.C.

Dep’t of Health and Human Serv., 41, [https://perma.cc/W96L-8L3N] (“When a

hearing [contesting the registration of a foreign support order] is scheduled, notice of

the date, time, and location of the hearing must be provided to the initiating state

immediately.”).

“Correspondence” is the “[i]nterchange of written communications.”

Correspondence, Black’s Law Dictionary (5th ed. 1979). Plaintiff’s counsel argues

3 While Plaintiff-Mother was not an unrepresented party, we note, “[n]o attorney/client

relationship shall be considered to have been created between the attorney who represents the child

support enforcement agency and any person by virtue of the action of the attorney in providing the

services required.” N.C. Gen. Stat. § 110-130.1(c) (2016).

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that this “correspondence” should have been served directly on the party in

accordance with Rule 5 of the Rules of Civil Procedure, which provides for service

upon an unrepresented party by delivering or mailing a copy to the party. N.C. Gen.

Stat. § 1A-1, Rule 5(b)(2). In this case, we are bound to follow federal law.

The governments of the United States and Switzerland entered into a treaty

concerning the registration and enforcement of foreign support orders between our

two countries. A treaty is federal law and “equivalent to an act of [Congress].” Foster

v. Neilson, 27 U.S. 253, 314, 7 L. Ed. 415, 436 (1829), overruled on other grounds by

United States v. Percheman, 32 U.S. 51, 8 L. Ed. 604 (1833). Federal law is “the

supreme Law of the Land; and the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

U.S. Const. art. VI, cl. 2. Whenever state and federal law conflict, “state law is

naturally preempted to the extent of any conflict with a federal statute.” Crosby v.

Nat’l Foreign Trade Council, 530 U.S. 363, 372, 147 L. Ed. 2d 352, 361 (2000).

North Carolina is bound to follow the Agreement between the United States

and Switzerland. The Agreement provides that documents should be sent to the

“Central Authority or other designated public body” of each party. See Agreement,

art. 4, cl. 3. Both the U.S. Office of Child Support Enforcement and the North

Carolina Department of Health and Human Services provide that correspondence in

international foreign support cases should be sent to the respective country or state

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agency, not sent directly to the individual parties. Accordingly, the trial court did not

abuse its discretion in making the determination that the notice of hearing was sent

to the correct location, and that Plaintiff received proper notice, and thus we affirm

that finding.

II. Rule 60(b)(4)

Next, Plaintiff-Mother argues that her Rule 60(b)(4) motion was erroneously

denied because the order vacating the registration of the foreign support order was

void for failure to comply with the requirements of N.C. Gen. Stat. § 52C-6-606(c)

(2017). Plaintiff-Mother argues this error divested jurisdiction from the trial court

that granted the order vacating the registration of the foreign support order.

However, Plaintiff-Mother never raised this argument before the trial court, a fact

she concedes in her reply brief to this Court. Nevertheless, given that questions

concerning subject matter jurisdiction may properly be raised for the first time on

appeal, Federated Fin. Corp. of Am. v. Jenkins, 215 N.C. App. 330, 334, 719 S.E.2d

48, 51 (2011), we will address Plaintiff-Mother’s argument.

A trial court may only grant a Rule 60(b)(4) motion where the underlying

judgment is void. Burton v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d 381, 382

(1992). “A judgment will not be deemed void merely for an error in law, fact, or

procedure. A judgment is void only when the issuing court has no jurisdiction over

the parties or subject matter in question or has no authority to render the judgment

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entered.” Id. The district courts of North Carolina are granted jurisdiction over

matters proceeding under the Uniform Interstate Family Support Act. See N.C. Gen.

Stat. § 52C-1-102 (2017).

Here, it is evident that the trial court possessed jurisdiction by statute.

Accordingly, the trial court did not err in denying Plaintiff-Mother’s Rule 60(b)(4)

motion.

III. Rule 60(b)(6)

Finally, Plaintiff-Mother argues that her Rule 60(b)(6) motion was erroneously

denied because Plaintiff-Mother never received notice of the hearing to contest the

registration order, rendering the trial court’s order vacating the registration of her

foreign support order inequitable. We disagree.

A trial court cannot set aside a judgment or order pursuant to Rule 60(b)(6)

without a showing: (1) that extraordinary circumstances exist, and (2) that justice

demands relief. Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987). The

determination of whether to grant relief under Rule 60(b)(6) is equitable in nature

and within the trial court’s discretion. Kennedy v. Starr, 62 N.C. App. 182, 186, 302

S.E.2d 497, 499-500, disc. review denied, 309 N.C. 321, 307 S.E.2d 164 (1983).

As discussed above, Plaintiff-Mother executed a limited power of attorney

granting the North Carolina Child Support Enforcement Agency the authority “to

represent [her] in dealings with all authorities and before all courts.” The Guilford

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County Child Support Enforcement Agency followed established federal and state

agency procedure in sending notice to parties in an interstate case. Thus, competent

evidence exists in the record to support the trial court’s discretionary ruling denying

Plaintiff-Mother’s Rule 60(b)(6) motion. Further, Plaintiff-Mother failed to show that

extraordinary circumstances exist or that justice demands relief, and Plaintiff-

Mother lacks a meritorious defense in that neither of the affidavits were admissible

into evidence. Accordingly, the trial court did not err by denying Plaintiff-Mother’s

Rule 60(b)(6) motion.

Conclusion

The trial court did not err in denying Plaintiff-Mother’s Rule 60(b) motions for

relief from the order vacating the registration of her foreign support order. Therefore,

we affirm the trial court’s ruling.

AFFIRMED.

Judge STROUD concurs.

Judge MURPHY concurs in result only.

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