#### ALBERT E. McLEAN v. RUTH STUDTMAN McLEAN.

(Filed 2 February, 1951.)

1. Courts § 11: Divorce § 3—

The general county court of Alamance County is given jurisdiction by statute of actions for divorce.

2. Courts § 4b—

The jurisdiction of the Superior Court upon appeal from a general county court is limited to rulings on exceptions duly noted and brought forward, and the Superior Court is without authority to make additional findings of fact.

3. Same—

The findings of fact made by a general county court upon the hearing of a motion are conclusive on the Superior Court upon appeal and on the *140Supreme Court upon further appeal when the findings are supported by evidence.

4. Divorce § 22: Judgments § 27g—

The statutory right of a nonresident against whom judgment has been rendered on substituted service to come in and defend at any time within five years, does not apply to actions for divorce. G.S. 1-10S.

5. Divorce § 22: Constitutional Law § 21: Courts § 2% —

The courts of this State have jurisdiction to alter the marriage status of a resident of this State even though the other spouse be a nonresident provided the form and nature of the substituted service on the nonresident meet the requirements of due process of law.

6. Judgments §§ 18, 27b—

If a fraud is perpetrated on the court whereby jurisdiction is apparently acquired when jurisdiction is in fact lacking, the court’s judgment is a nullity and may be vacated on motion in the cause.

7. Same: Divorce § 22 — Divorce decree rendered on substituted service held nullity for fraud upon jurisdiction.

It appeared that plaintiff instituted action for divorce in a county of this State in which he resided, notifying the nonresident defendant by mail, and that when defendant appeared with counsel to defend he took a nonsuit. It further appeared that thereafter, with full knowledge of defendant’s whereabouts, he instituted a second divorce action in another county of the State without attempting to obtain personal service, procured service by publication in a weekly newspaper of limited circulation, and obtained decree of divorce without her knowledge. *Held,:*The facts compel the conclusion that plaintiff perpetrated a fraud upon the jurisdiction of the court, and defendant’s motion in the cause to set aside the decree should have been granted. Whether the evidence was sufficient to show that plaintiff, a soldier on active duty, acquired a domicile in this State, *queere?*

8. Divorce § 22: Constitutional Law § 21—

It is required that an adjudication affecting the marital status and finally determining personal and property obligations of the parties shall be preceded by notice and an opportunity to be heard. Constitution of N. C., Art. I, Sec. 17. 14th Amendment to the Constitution of the U. S.

9. Process § 6—

The order of service of summons by publication in this case *held*to conform to the statutory requirements. G.S. 1-90.

Appeal by plaintiff from *Harris, J.,*April Term, 1950, of AlamaNCE.

Affirmed.

Motion by defendant to set aside a divorce decree rendered in the General County Court of Alamance County, beard on appeal in tbe Superior Court.

*141Tbe defendant supported her motion, filed February, 1949, by affidavit alleging that plaintiff and defendant, then residents of Chicago, Illinois, were married in 1933, and continued to live there as husband and wife until 1942 when plaintiff was drafted into the United States Army. Thereafter in 1946 plaintiff re-enlisted in the United States Air Force and since has continued to serve as a professional soldier moving from place to place as ordered, and that for this reason plaintiff and defendant did not maintain a residence together. Defendant continued to live in Chicago though she visited her husband once in Atlantic City where he was stationed, and he visited her in Chicago. In 1944 plaintiff went overseas, and upon his return in September, 1945, he went to Chicago and told defendant that as soon as he had a permanent assignment he would send for her, but subsequently he returned to Chicago and told her he had found a state where he could obtain a divorce after two years’ separation. Thereafter he refused to take defendant with him or to provide her a place to live, though allotment continued to be regularly made to her from his pay. Plaintiff served at different stations according to military assignment. In April, 1946, he was in Greensboro and from September, 1946, to May, 1947, was at Camp Kilmer in New Jersey, and was thereafter transferred to Durham, North Carolina. 18 July, 1946, plaintiff instituted action for divorce in the Superior Court of Guilford County. Notice of suit was mailed by plaintiff to the defendant in Chicago, and she appeared in Guilford Court in person and with attorney, and indicated her intention of defending the action, expressing her willingness to resume marital association. No further proceedings were had and 19 August, 1946, plaintiff took a nonsuit in that action. Thereafter, 24 September, 1947, plaintiff instituted this action in the County Court of Alamance County. No notice was given the defendant and she had no knowledge of the action until May, 1948, when she received notice from United States Government that her allotment from plaintiff’s pay had been terminated. She alleged plaintiff was not a legal resident of North Carolina; that there had been no permanent or complete separation between the parties for two years; that notice of summons was published in the *Alamance Gleaner,*a weekly newspaper published in Ala-mance County with a circulation according to the affidavit of the printer of five hundred copies, only three of which went to Chicago and only one to a subscriber there; that the publication of summons was not made in a newspaper designated as most likely to give notice to the defendant, and plaintiff having previously instituted action in Guilford Superior Court, defendant had no reason to believe or expect an action for divorce would be brought in the County Court of Alamance; that plaintiff had personal knowledge of her address in Chicago, and concealed that fact from the court for the purpose of perpetrating a fraud upon the court. She asked that the judgment be set aside.

*142Tbe adverse examination of tbe plaintiff, taken in an independent action between tbe parties, was by consent admitted in evidence. From tbis it appears that plaintiff at tbe time be re-enlisted in January, 1946, was permitted cboice of station and cbose Greensboro, North Carolina; tbat thereafter though transferred temporarily to other stations in and out of tbe State, be regarded Greensboro in Guilford County as bis place of residence, where be kept bis personal belongings; tbat be registered and voted there in 1946 and again in 1947; tbat be paid personal property taxes there and bad North Carolina license plates attached to bis automobile. He further testified that since shortly after bis marriage be bad not lived with defendant as husband and wife.

Tbe Judge of tbe County Court in ruling on defendant’s motion found tbat tbe summons in tbe divorce action was issued out of tbat Court 24 September, 1947, and complaint filed alleging tbat plaintiff and defendant bad not lived together as husband and wife since 11 October, 1944; tbat upon plaintiff’s affidavit tbat defendant could not after due diligence be found in tbe State of North Carolina publication of notice of summons was ordered to be made in tbe *Alamance Gleaner,*a newspaper published in Alamance County; tbat publication was duly made; tbat plaintiff bad resided in the state more than six months prior to tbe institution of tbe action; tbat defendant was and is a resident of Illinois; tbat prior to tbis action, plaintiff bad instituted an action for divorce in Guilford County, and subsequently submitted to voluntary nonsuit; tbat the *Alamance Gleaner*was a weekly newspaper of limited circulation published in Alamance County; tbat tbe action was tried in tbe County Court 16 December, 1947, and on oral testimony verdict was returned and judgment thereon entered dissolving tbe bonds of matrimony between tbe parties. Tbe Judge of tbe County Court concluded tbat tbat court bad acquired jurisdiction of tbe action; tbat service of summons was effected by publication as shown in tbe evidence; tbat tbe proceedings were regular and tbe judgment duly and properly entered. Defendant’s motion to set aside tbe judgment was denied. Defendant excepted and appealed to tbe Superior Court, assigning errors.

Defendant excepted to tbe failure of tbe County Judge to find and set out tbe facts as shown in evidence tbat plaintiff bad given defendant notice by mail of tbe prior action in Guilford, and tbat when defendant appeared and indicated purpose to contest tbe action plaintiff took a nonsuit. Defendant also excepted *to the*failure of the County Judge to find tbe facts as to tbe circulation of the *Alamance Gleaner*as shown by tbe publisher’s affidavit. Defendant also excepted to each and all of tbe findings, and to tbe conclusions of law of tbe County Judge.

In tbe Superior Court tbe exceptions to tbe failure of tbe County Judge to set out tbe facts as to tbe prior action and as to tbe circulation *143of the newspaper in which notice of summons was published were sustained as being supported by the uncontradieted evidence. The defendant’s exception to the finding that plaintiff was a resident' of North Carolina was also sustained. The court expressed the opinion that the affidavit attached to plaintiff’s complaint was defective, and that the order of publication did not comply with the statute. The defendant’s exceptions to the conclusions of law set out in the order of the Judge of the County Court were sustained, the Court being of opinion that the judgment was void.

Whereupon the order of the Judge of the County Court denying defendant’s motion was reversed and the cause remanded to the County Court, with leave to the defendant to answer.

Plaintiff excepted and appealed.

*Y oung, Y oung*& *Gordo.n and Dameron ~& Dameron for plaintiff, appellant.*

*Anthony M. Anzalone and W. JR. Dalton, Jr., for defendant, appellee.*

DeviN, J.

At the outset we note that the action was instituted in the General County Court of Alamance County, and that jurisdiction to try and determine divorce actions was conferred on that court by statute, and, further, that appeals from that court to the Superior Court are upon exceptions duly noted and assigned as error, and that the power of the Judge hearing the case on appeal is limited to ruling on the exceptions brought forward. Exercising only appellate jurisdiction, he is without authority to make additional findings of fact as the basis of judgment. G.S. 7-279; *Jenkins v. Castelloe,*208 N.C. 406, 181 S.E. 266; *Starnes v. Tyson,*226 N.C. 395, 38 S.E. 2d 211.

In the complaint two years’ separation was alleged as grounds for divorce. G.S. 50-6. *Byers v. Byers,*222 N.C. 298, 22 S.E. 2d 902; *Taylor v. Taylor,*225 N.C. 80, 33 S.E. 2d 492. In defendant’s absence judgment was rendered in the County Court dissolving the bonds of matrimony between the parties for the reasons alleged. When the defendant learned of this result she sought relief by a motion in the cause that the judgment be vacated. She based her motion on the ground that plaintiff had not been a resident of North Carolina for six months preceding the institution of his action; that the service of summons by publication was inadequate and not made in a manner likely to give notice to the defendant; that the method employed by the plaintiff for obtaining substituted service under the circumstances here described constituted a fraud upon the court; that the absence of notice and opportunity to defend had resulted in the deprivation of personal and property rights of the defendant without due process of law.

*144In tbe bearing on defendant’s motion in tbe County Court, tbe Judge of that court found that plaintiff was a resident of *North*Carolina and concluded 'tbat tbe service of summons on tbe defendant was effected by tbe publication in tbe local newspaper, and tbat tbe County Court bad properly acquired jurisdiction to hear and determine tbe action and to render judgment dissolving tbe marriage tie. Upon this conclusion from tbe facts in evidence, tbe Judge denied defendant’s motion to set aside tbe judgment, and tbe defendant appealed to tbe Superior Court assigning tbe ruling and order of tbe court as error.

*We*note tbat Judge Harris in tbe Superior Court was of opinion tbat tbe affidavit attached to tbe complaint was fatally defective, but this conclusion is not borne out by tbe record. Tbe court also concluded tbat tbe order of publication was inadequate, but we perceive no substantial failure to conform to tbe statute in this respect. G.S. 1-99; *Scott & Co. v. Jones,*230 N.C. 74, 52 S.E. 2d 219; *Simmons v. Simmons,*228 N.C. 233, 45 S.E. 2d 124.

Tbe Judge of tbe County Court found from tbe evidence offered tbat tbe plaintiff bad been a resident of North Carolina for a sufficient length of- time to entitle him to maintain in tbat court an action for divorce under tbe statute. Though tbe Superior Court on appeal sustained defendant’s exception thereto, tbe finding of tbe trial judge must be held conclusive and binding on tbe Superior Court and on this Court if there be evidence to support tbe finding. *Bryant v. Bryant,*228 N.C. 287, 45 S.E. 2d 572. Tbe defendant, however, with some reason contends tbat tbe plaintiff admittedly was a professional soldier, at all times under military orders, and tbat bis sojourn in North Carolina was subject to transfer, and lacked tbat degree of permanence sufficient to afford evidence of tbe acquisition of domicile. 106 A.L.R. 32 (note); 17 A.J. 287. It is argued tbat evidence of tbe *animus manendi*is insufficient *(Owens v. Chaplin,*228 N.C. 705, 47 S.E. 2d 12; *S. v. Williams,*224 N.C. 183, 29 S.E. 2d 744; *Reynolds v. Cotton Mills,*177 N.C. 412, 99 S.E. 240), and tbat tbe place in which tbe plaintiff was a resident at tbe time of bis induction into tbe Armed Forces would continue to be bis legal domicile while in tbe service. *Hiles v. Hiles,*164 Va. 131; 106 A.L.R. 1. But conceding tbat there may be some evidence in tbe record to take this case out of tbe rule and to show tbat tbe plaintiff’s physical presence in this jurisdiction was accompanied by such acts and definite expressions of intention and purpose to remain indefinitely as to support tbe County Court’s findings, *Bryant v. Bryant, supra,*we think tbe ruling of Judge Harris in tbe Superior Court should be upheld upon another ground.

Tbe exception to tbe conclusions of law of tbe County Judge in denying defendant’s motion and tbe ruling thereon in tbe Superior Court sustaining tbe exceptions squarely present tbe question of tbe integrity of *145the divorce decree procured by plaintiff in the County Court upon substituted service by publication in the manner and by the means here shown.

It may be observed that the statute (G.S. 1-108), which permits a nonresident against whom judgment has been rendered on substituted service to come in and defend at any time within five years, does not apply to actions for divorce. While a suit for divorce is not strictly an action m *rem,*yet it differs in some respects from an action *in 'personam.*It involves the marital statns of two persons, and the domicile of one of the parties in the State creates a relationship to the State adequate for the exercise of the State’s power to alter the marriage status of the resident though the other spouse be a nonresident, and there is no constitutional barrier if the form and nature of the substituted service meet the requirements of due process of law. *Williams v. North Carolina,*317 U.S. 287; *Williams v. North Carolina,*325 U.S. 226.

The defendant presents the view that not only was the service in this case invalid because not reasonably calculated to give notice *(Mullane v. Central Hanover Bank & Trust Co.,*339 U.S. 306, 94 L. Ed. 865), but that the plaintiff’s attempt to secure a divorce decree by the means employed was a fraud upon the court. The rule is that if a fraud is perpetrated on the court whereby jurisdiction is apparently acquired when jurisdiction is in fact lacking, the judgment rendered thereon is a nullity and may be vacated on motion in the cause. *Fowler v. Fowler,*190 N.C. 536, 130 S.E. 315; *Hatley v. Hatley,*202 N.C. 577, 163 S.E. 593; *Young v. Young,*225 N.C. 340, 34 S.E. 2d 154; *Henderson v. Henderson,*232 N.C. 1, 59 S.E. 2d 227. Here the fact of the plaintiff’s knowledge of the residence and post office address of the' defendant in the city where he had lived with her as his wife and where she has continued to live, and his apparently purposeful failure so to advise the court when he prayed for service of summons by publication in a local newspaper of limited circulation, together with his knowledge that defendant had employed counsel and was prepared to and would defend the action if by any means she had notice, compels the necessary inference that plaintiff had contrived to conceal his action from the defendant and the facts from the court, and to prevent defendant from appearing and defending the suit, thus constituting a fraud upon the court. *Fowler v. Fowler,*190 N.C. 536, 130 S.E. 315; *Poole v. Poole,*210 N.C. 536, 187 S.E. 777; *S. v. Williams,*224 N.C. 183, 29 S.E. 2d 744; *Young v. Young,*225 N.C. 340, 34 S.E. 2d 154. See also G.S. 1-104.

The mere fact of- instituting suit for divorce in a county other than that of plaintiff’s residence would not be regarded as affecting the jurisdiction of the court over the action on proper service, but rather as affecting only the question of venue. *Davis v. Davis,*179 N.C. 185, 102 S.E. 270; *Smith v. Smith,*226 N.C. 506, 39 S.E. 2d 391. But where the *146plaintiff, as here, institutes an action in tbe county in which he is residing, notifies the nonresident defendant by mail and when she appears with counsel to defend takes a nonsuit, and then with full knowledge of her whereabouts has another summons issued in a court of limited jurisdiction in another county, and, without attempting to obtain personal service, procures service by publication in a weekly newspaper of limited circulation, and, without other notice, has divorce decree entered, the conclusion seems inevitable that plaintiff was seeking to obtain a divorce from his wife without her knowledge and to deprive her of her right to support and to marital association by a fraudulent imposition upon the court. *Young v. Young,*225 N.C. 340, 34 S.E. 2d 154. The facts in this case seem to evince a purpose on the part of plaintiff to arrange the outward forms of substituted service and regularity of procedure, but in such a way that by no reasonable probability could defendant obtain notice or knowledge of his suit for divorce until after the decree had been entered. The form may not be exalted over the substance.

The defendant also asserts as reason for vacating the judgment of the County Court that she has thereby been deprived of personal and property rights without due process of law. We do not reach that question, but it may be observed that under the provisions of the Constitution of North Carolina, Art. I, see. 17, that no person be deprived of property “but by the law of the land,” as well as under the parallel provisions of the 14th Amendment to the Constitution of the United States, it is required that an adjudication affecting the marital status and finally determining personal and property obligations shall be preceded by notice and opportunity to be heard. *Markham v. Carver,*188 N.C. 615, 125 S.E. 409; *Bowie v. West Jefferson,*231 N.C. 408, 57 S.E. 2d 369; *Truax v. Corrigan,*257 U.S. 312. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” *Mullane v. Central Hanover Bank & Trust Co.,*339 U.S. 306.

The plaintiff points to the language in the judgment of Judge Harris that defendant’s exceptions “based on the choice of a newspaper for publication are not well taken,” and contends this expression should be interpreted as overruling defendant’s exception to the adequacy of the publication, but in view of the court’s ruling sustaining all defendant’s exceptions to the findings and conclusions of the County Judge, we do not think the expression quoted should be given significance. *Elias v. Commissioners of Buncombe County,*198 N.C. 733, 153 S.E. 323.

For the reasons stated, the judgment of the Superior Court is

Affirmed.