Savage v. Zelent

243 N.C.App. 535

777 S.E.2d 801

Alan SAVAGE, Plaintiff,

v.Julie Anne ZELENT a/k/a Julie Anne Phillips a/k/a Julie A. McSwain, Defendant.

No. COA15–282.

Court of Appeals of North Carolina.

Oct. 20, 2015.

Poyner Spruill LLP, Raleigh, by Daniel G. Cahill and Caroline P. Mackie, for plaintiff-appellee.

Jeffrey S. Miller, Jacksonville, for defendant-appellant.

BRYANT, Judge.

Where a proper statutory interpretation of the North Carolina Uniform Foreign–Country Money Judgments Recognition Act and evidence in the record support the trial court's order that a Scottish judgment at issue (1) was not a judgment for alimony, support, or maintenance in matrimonial or family matters, and (2) was not fundamentally unfair or repugnant to the public policy of North Carolina, we affirm the judgment of the trial court.

Plaintiff Alan Savage and Defendant Julie Anne Zelent met in June 2006 and subsequently developed a romantic relationship. In the same year, defendant moved from England to Inverness, Scotland, where plaintiff and defendant cohabited from 1 September 2006 to 24 August 2007. The pair temporarily separated, but resumed cohabitation in February 2008. Plaintiff and defendant permanently separated in October 2008, after which defendant eventually moved to Carteret County, North Carolina.

In 2011, defendant filed suit against plaintiff in Inverness Sheriff Court in Scotland under the Family Law (Scotland) Act of 2006, Section 28(2)(a), alleging that she sustained economic disadvantage as a result of her relationship with plaintiff and that she was entitled to financial contribution. After a seven day proof (trial), which took place over the course of November 2011, December 2011, and January 2012, the Sheriff (judge) found that defendant was not entitled to financial contribution from plaintiff. Defendant was entitled to appeal the judgment but failed to do so.

After the proof concluded, defendant's counsel withdrew from representing her. Under Scottish Sheriff Court procedure, when a party becomes pro se, the Sheriff calls for a Peremptory Diet (hearing). If the pro se party fails to attend, the hearing may be held without the pro se party. On 17 August 2012, the Sheriff held the Peremptory Diet to determine whether legal costs should be awarded. Defendant, who had received notice of the Peremptory Diet, wrote an email in response but did not attend. The Sheriff awarded expenses to plaintiff in an amount to be determined by the Auditor of Court.

Under Scottish law, the Auditor of Court is tasked with scheduling a Diet of Taxation (hearing), during which the Auditor assesses the validity of the entry in the Account of Expenses before determining the final sum to be awarded. Again, defendant did not attend the Diet of Taxation, send a representative, seek any corrections, or make any submissions to the Auditor.

On 19 June 2013, the Auditor awarded expenses to plaintiff and submitted the report to the Sheriff. The Sheriff then approved the Auditor's Report and entered an award of attorneys' fees and expenses in the amount of £ 148,516.75 ("the Scottish judgment") against defendant. Defendant, having previously failed to exercise her right to appeal on the merits, again failed to exercise her right to appeal the amount of expenses awarded. Defendant made no payments on the Scottish judgment.

On 16 January 2014, plaintiff served defendant with a Complaint to Recognize a Foreign–Country Money Judgment filed in Carteret County Superior Court. Defendant answered, asserting a defense pursuant to North Carolina Rule of Civil Procedure 12(b)(6) for failure to state a claim. On 27 June 2014, plaintiff filed a Motion to Recognize a Foreign–Country Money Judgment, along with a brief in support of the motion. On 7 July 2014, the matter came on for hearing in Carteret County Superior Court, the Honorable John E. Nobles presiding. By written order entered on 25 August 2014, Judge Nobles granted plaintiff's Motion to Recognize a Foreign–Country Money Judgment.

Defendant's subsequent Motion for a New Trial was denied by Judge Nobles by written order entered on 14 October 2014. Defendant appeals.

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On appeal, defendant raises the following issues: whether the trial court erred (I) in recognizing the Scottish judgment under the North Carolina Uniform Foreign–Country Money Judgments Recognition Act; and (II) whether the Scottish judgment is fundamentally unfair or repugnant to North Carolina public policy.

I

Defendant argues that the trial court erred in concluding as a matter of law that the Scottish judgment was not a judgment for alimony, support, or maintenance in matrimonial or family matters. Defendant also argues that the attorneys' fees awarded to plaintiff in defendant's action for support under the Family Law (Scotland) Act constituted a judgment for "support ... in matrimonial or family matters" within the meaning of N.C. Gen.Stat. § 1C–1852 (2009). We disagree, noting that defendant's argument is one which requires our interpretation of the statute at issue in this case.

"Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court." Jenner v. Ecoplus, 224 N.C.App. 275, 277, 737 S.E.2d 121, 123 (2012) (quoting In re Proposed Assessments v. Jefferson–Pilot Life Ins. Co., 161 N.C.App. 558, 559, 589 S.E.2d 179, 180 (2003) ). "The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent." Applewood Props., LLC v. New S. Props., LLC, 366 N.C. 518, 522, 742 S.E.2d 776, 779 (2013) (quoting Dickson v. Rucho, 366 N.C. 332, 339, 737 S.E.2d 362, 368 (2013) ). The Court's statutory analysis thus begins with the statutory words themselves. Jenner, 224 N.C.App. at 278, 737 S.E.2d at 123. "[I]f [the words] are clear and unambiguous, they are to be given their plain and ordinary meanings." Id. (citation omitted). However, "[w]here a statute is ambiguous, judicial construction must be used to ascertain the legislative will." Id. Furthermore, "[u]nder the doctrine of expressio unius est esclusio alterius, when a statute lists the situations to which it applies, it implies the exclusion of situations not contained in the list." Patmore v. Town of Chapel Hill N.C., ––– N.C.App. ––––, ––––, 757 S.E.2d 302, 307 (2014) (quoting Evans v. Diaz, 333 N.C. 774, 779–80, 430 S.E.2d 244, 247 (1993) ).

The North Carolina Uniform Foreign–Country Money Judgments Recognition Act ("Recognition Act") applies to foreign country judgments that grant or deny recovery of a sum of money and are final, enforceable judgments under the law of the foreign country. N.C.G.S. § 1C–1852. The Act also states, in pertinent part, that: "(b) This Article does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent that the judgment is ... (3) A judgment for alimony, support, or maintenance in matrimonial or family matters." N.C.G.S § 1C–1852(b)(3). The North Carolina Act is based on the Uniform Foreign–Country Money Judgments Recognition Act ("Uniform Act") as approved in 2005 by the National Conference of Commissioners on Uniform State Laws. N.C. Gen.Stat. § 1C–1850, North Carolina Comment (2009).¹ This Court has previously noted that "[t]he Recognition Act is a statute of inclusion with a strong presumption that foreign-country judgments will be recognized." Jenner, 224 N.C.App. at 279, 737 S.E.2d at 124. Further, "[a] party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition ... exists." Id. (quoting N.C.G.S. § 1C–1853(g) ).

As noted, the North Carolina Act is based on the Uniform Act. However, "[t]he General Statutes Commission inserted ‘North Carolina’ in the title and short title of the Article because of variations made to the text of the Uniform Act." Id. Notably, one such variation is explained in the North Carolina Comment to N.C. Gen.Stat. § 1C–1852(b)(3), which emphasizes the deliberate elimination and substitution of particular language from the Uniform Act:

In subdivision (b)(3), the General Statutes Commission substituted "alimony, support, or maintenance in matrimonial or family matters" for the Uniform Act language "divorce, support, or maintenance, or other judgment rendered in connection with domestic relations." This change was due to concern that the Uniform Act's language could prevent recognition of an award based on a claim that was brought as part of a divorce action, for example, a tort action against one spouse for damage to the individual property of the other spouse.

N.C.G.S. § 1C–1852(b)(3) Official Comment.

Defendant asserts that the intent of the Recognition Act is that "North Carolina courts maintain a ‘hands off’ attitude to ‘judgments for support in matrimonial or family matters' and consequent judgments for costs, attorneys' fees, etc." Defendant asserts that the attorneys' fees awarded against defendant in her action for support in a family law matter was in fact a judgment for support or alimony within the meaning of N.C. Gen.Stat. § 1C–1852. We disagree with defendant's assertions. To refuse recognition of the Scottish judgment as defendant would have us do, would require that we read the statute to substitute the word "for" and replace it with the phrase " arising out of," in effect revising the statute to read "judgment [arising out of] a claim for alimony, support, or maintenance." This we decline to do.

Here, the statute clearly precludes recognition of judgments "for" alimony, "for" support, or "for" maintenance. See N.C.G.S. § 1C–1852(b)(3). The Scottish judgment, rather, is a judgment "for" attorneys' fees and expenses incurred by plaintiff and awarded against defendant. The purpose of the judgment was to reimburse plaintiff for expenses in defense of a claim brought by plaintiff and denied by the Scottish court. The plain language of the Scottish judgment reads as...