Gyger v. Clement

• Court: Supreme Court of North Carolina
• Decided: August 14, 2020
• Docket: 31PA19
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 31PA19

Filed 14 August 2020

EVE GYGER, Plaintiff

v.

QUINTIN CLEMENT, Defendant

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 823 S.E.2d 400 (N.C. Ct. App. 2018), upholding a denial of

plaintiff’s Rule 60(b) motion for relief from an order vacating the registration of her

foreign support order entered on 30 November 2017 and 2 January 2018 by Judge

Lora C. Cubbage in District Court, Guilford County. Heard in the Supreme Court on

17 June 2020.

George Daly and Anna Daly for plaintiff-appellant.

D. Martin Warf for defendant-appellee.

NEWBY, Justice.

In this case we decide whether an affidavit under N.C.G.S. § 52C-3-315(b)

(2019), which applies to child support cases involving parties residing out of state,

must be notarized. Notaries, as defined by our legal system, may not be readily

accessible in all parts of the world. In recognition of the hardship that may result

from the traditional notary requirement, the General Assembly created special

evidentiary rules provided in Chapter 52C, the “Uniform Interstate Family Support GYGER V. CLEMENT

Opinion of the Court

Act” (UIFSA) to permit affidavits in some circumstances to be admitted into evidence

without notary acknowledgement if they were sworn to under penalty of perjury.

Here, for an international party in a child support action, the party’s signature on the

affidavit under penalty of perjury suffices. No notarization is required under

subsection 52C-3-315(b). The decision of the Court of Appeals is reversed.

Between 1997 and 1999, plaintiff-mother Eve Gyger and defendant-father

Quintin Clement were involved in a romantic relationship in North Carolina. In 2000,

the parties had two children who were born in Geneva, Switzerland. In October 2007,

plaintiff initiated an action in the Court of First Instance, Third Chamber, Republic

and Canton of Geneva against defendant to establish paternity and child support.

Defendant did not appear, and the Swiss court entered judgment against defendant

on both counts.

In May 2014, the Swiss Central Authority for International Maintenance

Matters applied to register and enforce the Swiss support order with the North

Carolina Department of Health and Human Services, Office of Child Support and

Enforcement. The Guilford County Clerk of Court registered the Swiss support order

for enforcement on 13 June 2016. Defendant was served with a Notice of Registration

of Foreign Support Order on 20 June 2016. On 1 July 2016, defendant filed a Request

for Hearing to, among other things, vacate the registration of the foreign support

order. After a hearing in District Court, Guilford County, the trial court vacated the

registration of the foreign support order under N.C.G.S. §§ 52C-6-607(a)(1) and

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52C-7-706(b)(3) and dismissed the action, finding that the court file lacked any

evidence that defendant had been provided with proper notice of the Swiss

proceedings.

On 26 July 2017 plaintiff filed a Motion for Relief from the trial court’s order

under N.C.G.S. § 1A-1, Rules 60(b)(1), (2), (4), and (6). The trial court conducted a

hearing on the motions, and plaintiff attempted to introduce two affidavits and a

transcript. The trial court excluded the first affidavit, an “Affidavit of Eve Gyger”

purportedly signed by plaintiff, because it was not notarized and plaintiff was not

present to be examined.1 The trial court ultimately denied plaintiff’s motions for relief

from judgment, and plaintiff timely appealed.

The Court of Appeals affirmed the trial court’s ruling denying plaintiff’s Rule

60(b) motions for relief from the order vacating the registration of her foreign support

order. Gyger v. Clement, 263 N.C. App. 118, 130, 823 S.E.2d 400, 409 (2018). The

court based its decision on this Court’s ruling in Alford v. McCormac, 90 N.C. 151,

152–53 (1884), that an essential element of an affidavit is an oath administered by

an officer authorized by law to administer it. Gyger, 263 N.C. App. at 125, 823 S.E.2d

at 406. The Court of Appeals thereby interpreted N.C.G.S. § 52C-3-315(b) to require

notarization for the affidavit to be admissible. Id. at 125, 823 S.E.2d at 406. Because

plaintiff’s purported affidavit was not notarized, the court concluded that it lacked

1 The other affidavit, an “Affidavit of Translation,” was excluded as well. It is not at issue before this Court. -3- GYGER V. CLEMENT

proper certification and could not be used in this case. Id.

Plaintiff petitioned this Court for discretionary review, and this Court allowed

review as to the issue of whether N.C.G.S. § 52C-3-315(b), which allows affidavits to

be admitted into evidence if given under penalty of perjury, requires affidavits to be

notarized.

We hold that the trial court erred by not admitting into evidence plaintiff’s

affidavit under N.C.G.S. § 52C-3-315(b). Generally, affidavits must be notarized. But

the General Assembly, recognizing the challenges of interstate and international

document production, created an exception for certain Chapter 52C cases.

Chapter 52C of the North Carolina General Statutes, the “Uniform Interstate

Family Support Act,” applies to situations involving child support with parties

residing outside of this State. Within Chapter 52C the General Assembly chose to

provide “Special Rules of Evidence and Procedure” to accommodate those special

circumstances which arise when parties reside outside of North Carolina. N.C.G.S.

§ 52C-3-315(b). That subsection provides that

[a]n affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, 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.

N.C.G.S. § 52C-3-315(b).

Defendant argues that this provision continues to require affidavits filed under

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it to be notarized. As with any question of statutory interpretation, the intent of the

legislature controls. Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517

(2001). “The best indicia of that intent are the language of the statute[,] . . . the spirit

of the act[,] and what the act seeks to accomplish.” Coastal Ready-Mix Concrete Co.

v. Bd. of Comm’rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385

(1980).

Subsection 52C-3-315(b)’s plain terms do not require notarization. The

provision instead simply requires an “affidavit” to be “given under penalty of perjury.”

Our case law, however, generally expects affidavits to be notarized if they are to be

admissible. See, e.g., Alford v. McCormac, 90 N.C. at 152–53.

Nevertheless, the General Assembly has the power to make exceptions to

general rules for special circumstances as it sees fit. It did so with the provision

relevant to this case. In 2015 the legislature expanded subsection 52C-3-315(b) from

applying only to parties in other states to applying to parties outside of this State.

Compare N.C.G.S. § 52C-3-315(b) (2013) (prior version of the statute applying to

parties or witnesses “in another State”) with N.C.G.S. § 52C-3-315(b) (2019) (current

version of the statute applying to parties or witnesses “residing outside this State”).

According to the Official Commentary, the purpose of this expansion was to extend

its reach to an individual residing anywhere, including individuals residing outside

of the United States. N.C.G.S. § 52C-3-315 (2019), Official Comment (2015). More

specifically, the Official Commentary states that

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[s]ubsections (b) through (f) provide special rules of evidence designed to take into account the virtually unique nature of interstate proceedings under this act. These subsections provide exceptions to the otherwise guiding principle of UIFSA . . . . Because the out-of-state party, and that party’s witnesses, necessarily do not ordinarily appear in person at the hearing, deviation from the ordinary rules of evidence is justified in order to assure that the tribunal will have available to it the maximum amount of information on which to base its decision.

Id. (emphases added).

When the legislature expanded the statute to apply to international residents,

it recognized the difficulties that parties may face when dealing with child support

claims in this State. Other nations have legal practices and traditions significantly

different from those of our own, and thus in certain locations obtaining notarization

of affidavits may be impractical or impossible. Notaries, as understood by the United

States legal system, may not be as accessible in other parts of the world, so if

notarization were required for affidavits involving international parties, many

relevant and helpful materials likely would not be presentable before the court.

Subsection 52C-3-315(b), as amended, allows the trial court to consider helpful

evidence when it must decide child support issues involving nonresident parties.

Not surprisingly, then, subsection (b) is not the only place where the General

Assembly made appropriate accommodations to address the special circumstances

arising in child support cases involving out-of-state parties. Subsection 52C-3-315(f),

for example, permits depositions of out-of-state parties and witnesses to simply be

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taken “under penalty of perjury” by telephone or other electronic means.

Though the preceding analysis of legislative intent is sufficient to discern that

the subsection at issue does not require notarization, additional evidence bolsters this

conclusion. Since the statute substantially mirrors the 2008 Model UIFSA2, see

Uniform Interstate Family Support Act § 316 (2008), we may reference the

commentary to the Model UIFSA for further evidence of statutory meaning. Though

an oath was once required by the model statute, that requirement was removed in

2001. Unif. Interstate Fam. Support Act § 316 (2001). The comment to the 2001 Model

UIFSA explains that the change “replaces the necessity of swearing to a document

‘under oath’ with the simpler requirement that the document be provided ‘under

penalty of perjury’ . . . .” Id. at § 316 cmt. Thus, the uniform law provision on which

subsection 52C-3-315(b) is based does not require an oath if the affidavit is submitted

under penalty of perjury.

The legislature has the ability to explicitly require an oath if it deems it

necessary, and it has done so in other provisions within Chapter 52C. For example,

N.C.G.S. § 52C-3-311 (2019) provides that “an affidavit . . . under oath” is required

when a party raises an issue of child endangerment. Thus, the lack of a specific oath

requirement in subsection 52C-3-315(b) is significant evidence of legislative intent.

2 The provisions of Chapter 52C closely reflect the corresponding Model UIFSA provisions. Section 316(b) of the UIFSA corresponds with the specific provision in question, subsection 52C-3-315(b). -7- GYGER V. CLEMENT

Allowing affidavits into evidence in accordance with a proper interpretation of

the statute here is not likely to harm trial court processes. An affidavit serves to

convey information from the signing party in a form that attests to the statement’s

credibility. In 2004, Black’s Law Dictionary defined an affidavit as “a voluntary

declaration of fact written down and sworn to by the declarant before an officer

authorized to administer oaths.” Affidavit, Black’s Law Dictionary (8th ed. 2004).

Eventually, though, the definition was changed to “a voluntary declaration of fact

written down and sworn by a declarant, usu[ally] before an officer authorized to

administer oaths.” Affidavit, Black’s Law Dictionary (10th ed. 2014) (emphasis

added). This change contemplates that affidavits may be valid and acceptable in some

circumstances even when not sworn to in the presence of an authorized officer.

One such circumstance is when an affidavit is submitted under penalty of

perjury. Affidavits without notarization may still be substantially credible. When a

statement is given under penalty of perjury, it alerts the witness of the duty to tell

the truth and the possible punishment that could result if she does not. “The form of

the administration of the oath is immaterial, provided that it involves the mind of the

witness, the bringing to bear [of the] apprehension of punishment [for untruthful

testimony].” United States v. Looper, 419 F.2d 1405, 1406 (4th Cir. 1969).

Accordingly, in federal court proceedings too, written declarations made under

penalty of perjury are permissible in lieu of a sworn affidavit subscribed to before a

notary public. See 28 U.S.C § 1746 (stating that an unsworn declaration under

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penalty of perjury has the same “force and effect” as an affidavit).

Because petitioner submitted her affidavit under penalty of perjury, she was

made aware of her duty to tell the truth and of the possible punishment if she failed

to do so. The document satisfied the requirements of subsection 52C-3-315(b). The

trial court may accord whatever weight to plaintiff’s statements it deems appropriate,

but plaintiff’s affidavit is at the very least admissible.

Asserting to the contrary, defendant and the Court of Appeals relied on cases

which did not involve special rules of evidence due to special circumstances. None

involved international parties or triggered the statutory provision applicable in this

case. See Alford, 90 N.C. at 152–53 (holding that an affidavit verifying a complaint is

not complete until it is certified by the officer before whom the oath was taken);

Ogburn v. Sterchi Bros. Stores, 218 N.C. 507, 508, 11 S.E.2d 460, 461 (1940) (holding

that a statement followed by an unsigned, unsealed, and unauthenticated statement

was not an affidavit when seeking authorization to sue as a pauper); In re Adoption

of Baby Boy, 233 N.C. App. 493, 500–02, 757 S.E.2d 343, 347–48 (2014) (holding that

a critical part of an acknowledgement under oath was that the word “swear” was

administered to the witness in the presence of a notary when relinquishing parental

rights). Rather, each case involved affidavits used in more standard proceedings that

do not implicate a special statutory procedure adopted by the General Assembly to

address situations when parties reside out-of-state or out-of-country.

In recognition of the unique nature of these types of proceedings the General

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Assembly enacted an exception to the usual notarization requirement, and for that

reason subsection 52C-3-315(b) does not require that an affidavit given under penalty

of perjury be notarized to be admissible. Plaintiff’s affidavit is admissible because it

was executed under penalty of perjury as allowed by subsection 52C-3-315(b). We

therefore reverse the decision of the Court of Appeals and remand the case to that

court with instructions to remand to the trial court for further proceedings consistent

with this opinion.

REVERSED AND REMANDED.

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