November 3, 1994
Honorable Robert H. Christy, Jr. Clerk of Superior Court 60 Court Plaza Asheville, North Carolina 28801-3519
RE: Advisory Opinion; Service of Notice of Registration for Foreign Support Order; N.C. Gen. Stat. §52A-29, §52A-30 and §1A-1, Rule 4(j)
Dear Mr. Christy:
We are in receipt of your letter dated October 5, 1994, in which you seek an opinion from this office concerning the procedures to use when registering a foreign support order. Specifically you ask whether orders confirming registration of a foreign support order are valid if the obligor is served in person by the sheriff instead of the clerk obtaining service by registered or certified mail?
N.C. Gen. Stat. §52A-29 provides in part as follows:
Promptly upon registration, the clerk of the court shall send by certified or registered mail to the obligor at the address given a notice of the registration with a copy of the registered support order, and the post-office address of the obligee. He shall also docket the case and notify the prosecuting attorney of his action. Id.
The primary purpose of this provision is to ensure that the obligor obtains notice and an opportunity to challenge the registration within the 20 days prescribed by N.C. Gen. Stat. §52A
29.
In Silvering v. Vito, 107 N.C. App. 270, 419 S.E.2d 360 (1992), our Court of Appeals recently had the opportunity to decide whether the failure of the clerk to send the summons and petition by registered or certified mail was sufficient to void the action where the obligor obtained notice when the sheriff served him with a summons and petition instead. The Court held that it was unwilling to reverse the trial court on the basis that the clerk did not send the notice because when the sheriff served the obligor within the statutory time period, the obligor received actual notice of the registration. Id., 107 N.C. App. at 274, 419 S.E.2d at 363. See also Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).
In Maready, the North Carolina Supreme Court stated that "the purpose of a service of summons is to give notice to the party against whom the proceeding is commenced to appear at a certain place and time to answer a complaint against him." 311 N.C. at 541. Rule 4(j)(1) contains the method for service of process on a natural person. If these requirements are met, service is valid. Id. at 542.
Thus, we conclude that although N.C. Gen. Stat. §52A-29 provides that the clerk must send the notice of registration by certified or registered mail, valid service is had upon the obligor where service has been made in accordance with the provisions of Rule 4(j)(1).
The final part of your inquiry concerns whether your staff can pursue an order confirming the registration of the foreign support order pursuant to N.C. Gen. Stat. §52A-30(b) when there is no indication that the obligor received notice, even though the notice was sent registered or certified mail. The answer is yes since registration and enforcement are two separate procedures. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977); Fleming v. Fleming, 49 N.C. App. 345, 271 S.E.2d 584 (1980). In Pinner, the Court held that personal jurisdiction is unnecessary for purposes of registering a foreign support order. 33 N.C. App. at 207, 234 S.Ed.2d at 636. When an order is registered, no court or agency of the state is purporting to exercise power over the obligor or his property. Id. We note, however, that a court of this state must obtain personal jurisdiction over an obligor before such an order can be enforced.
We trust that this fully answers your questions on this matter. Please contact us if we can be of any further assistance to you.
Ann Reed Senior Deputy Attorney General
T. Byron Smith
Assistant Attorney General