North Carolina Divorce Lawyers Blog
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Foreign Orders: When Affirming Is Enough

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Gyger v. Clement, ___ N.C. ___ (August 2020) (31PA19)

In North Carolina, foreign orders for child support can be registered in this state, allowing our courts to enforce the orders. It is extremely helpful to register a foreign order in the state if the party you are seeking relief from resides here. Sometimes, the plaintiff in these actions is not a state resident. Other times, they may not even be a US resident. Below, we examine a case about how testimony can be given when a witness to a child support action is in another country.

  • Facts: Plaintiff and Defendant had two children together, who were both born in Geneva, Switzerland. Plaintiff filed for child support in Switzerland and obtained a judgment; Defendant failed to appear for his Swiss case. The Swiss Central Authority for International Maintenance Matters registered their Order for support in Guilford County. Defendant was served with the Notice of Registration. Defendant subsequently filed a Request for Hearing that included a claim to vacate the registration. The trial court vacated. On a motion to set aside judgment, Plaintiff sought to admit two affidavits because she was unable to be present to testify. At trial, the court denied the motion and the Court of Appeals affirmed the trial court, stating that Plaintiff’s affidavits were not properly notarized and therefore inadmissible. Plaintiff then appealed.

 

  • Issue: Did the trial court err in refusing admit the affidavits of Plaintiff, even though they were not notarized?

 

  • Holding: Yes.

 

  • Rationale: The North Carolina Supreme Court reversed based on legislative intent. The Court recognized that access to what North Carolina, and US Courts, deem a notary may be limited in foreign countries. The trial courts ought to consider helpful evidence, and section 52C-3-315(b) allows for the admissibility of evidence that may deviate from the ordinary rules of evidence. Moreover, the statute does not stipulate which oath be taken, showing further intent that allows flexibility when dealing with foreign parties and witnesses. The Model Uniform Interstate Family Support Act, on which our statute is based, also comments that no oath be required. Simply affirming under penalty of perjury will suffice.

 

  • Lessons and Observations:

 

  1. If you are seeking to give the Court evidence regarding your foreign support order and are unable to testify, then affidavits do not need to be notarized. Affirmations given under penalty of perjury will suffice.
  2. Note that the NC Supreme Court did not rule on whether the decision to vacate was erroneous, only that the trial court should have considered the evidence that Plaintiff was seeking to give by her affidavits.
  3. Given the advancements in technology, and the Court’s ability to handle remote hearings these days, perhaps arranging testimony through virtual or telephonic means would be preferable so long as the witness is able to affirm.