IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-275
No. COA20-868
Filed 15 June 2021
Warren County, No. 18 CVD 225
WARREN COUNTY DEPARTMENT OF SOCIAL SERVICES,
On behalf of ERICKA GLENN, Plaintiff,
v.
ANTHONY J. GARRELTS, Defendant.
Appeal by Defendant from an order entered on 10 July 2020 by Judge Adam S.
Keith in Warren County District Court. Heard in the Court of Appeals 28 April 2021.
Banzet, Thompson, Styers, & May, PLLC, by Mitchell G. Styers and Jill A. Neville, for Defendant-Appellant.
No brief for Plaintiff-Appellee.
JACKSON, Judge.
¶1 This case presents a novel choice-of-law issue as between the artificial
insemination laws of North Carolina and those of Virginia. In order to determine
whether a sperm donor qualifies as the “parent” of a minor child conceived via
artificial insemination, we must decide whether to apply the paternity laws of the
state where the insemination and birth occurred (here, Virginia), or alternatively the
laws of the state where the paternity action was initiated (here, North Carolina). WARREN COUNTY DSS V. GARRELTS
Opinion of the Court
Because our traditional choice of law principles direct us to apply the law of the situs
of the claim, we conclude that this action should be governed by the substantive laws
of Virginia. We accordingly reverse and remand for further proceedings consistent
with this opinion.
I. Factual and Procedural Background
¶2 Plaintiff Ericka Glenn met and befriended Defendant Anthony Garrelts in
2010 in Virginia. Ms. Glenn and her partner wanted to conceive a child together, and
they asked Defendant to serve as a sperm donor in order to artificially inseminate
Ms. Glenn. Defendant agreed, and the parties entered into a “verbal contract” to
solidify their understanding. The artificial insemination and conception1 occurred in
Virginia, and Ms. Glenn continued to live in Virginia throughout her pregnancy. The
child was born in December 2011, and Ms. Glenn was the only parent who was listed
on the birth certificate.
¶3 In late 2012, Defendant, Ms. Glenn, and Ms. Glenn’s partner appeared in court
in James City County, Virginia, in order for Defendant to voluntarily “sign over his
1 The record does not specify whether the artificial insemination occurred with the
help of a physician or medical facility, or whether instead the parties conducted the insemination privately with no physician assistance. On remand, this matter should be investigated by the trial court, as it may be dispositive in determining whether Defendant qualifies as a legal parent under Virginia law. See, e.g., Bruce v. Boardwine, 64 Va. App. 623, 628-31, 770 S.E.2d 774, 776-77 (2015) (holding that the Virginia Assisted Conception Statute was inapplicable where the child was conceived through an at-home “turkey baster insemination” with no physician or medical facility involved). WARREN COUNTY DSS V. GARRELTS
parental rights” so that Ms. Glenn’s partner could formally adopt the child. The exact
outcome of this court proceeding is unknown, as the appellate record in this case does
not contain a copy of the Virginia court order. In 2014, Ms. Glenn moved with the
child to California, and soon thereafter begin receiving public assistance from the
state. Defendant was residing in Norlina, North Carolina at the time.
¶4 In March 2019, the Warren County Department of Social Services in North
Carolina (“DSS”) filed an action in Warren County District Court alleging that
Defendant was the father of the minor child and that he was obligated to pay child
support. Defendant filed an Answer, contending that he was under no obligation to
pay child support. A hearing was held on the matter on 10 July 2020 in Warren
County District Court. During the hearing, Defendant’s counsel argued that this
matter should be governed by the law of Virginia, where the child had been conceived
and born. Defendant’s counsel explained that under a Virginia statute,2 a sperm
donor does not legally qualify as a parent, and thus Defendant did not owe any child
support under Virginia law. Counsel for DSS disagreed, arguing that under the full
faith and credit doctrine, the trial court was under no obligation to apply Virginia
law, and that the law of North Carolina should apply as a matter of public policy.
2 Va. Code Ann. § 20-158 provides that “[a] donor is not the parent of a child conceived
through assisted conception, unless the donor is the spouse of the gestational mother.” Va. Code Ann. § 20-158(A)(3) (2019). WARREN COUNTY DSS V. GARRELTS
¶5 The trial court issued an order on 24 August 2020 adjudicating Defendant to
be the biological father of the child and ordering him to (1) pay $13,642.75 in past due
child support; (2) obtain medical insurance for the child; and (3) pay $50.00 in
monthly child support thereafter. Regarding the choice of law issue, the trial court
concluded as follows:
(4) The Court finds from the testimony and argument that, while the child was born in the Commonwealth of Virginia, and that there is a Virginia statute defining paternity, the Virginia paternity statute is not controlling in this action, which was brought pursuant to North Carolina statutes regarding the establishment of paternity and payment of child support.
(5) The Court finds from the testimony and arguments that there is no known provision in current North Carolina statutory or case law which provides an exception or alternative to establishing paternity in this case and entering an order that the father of the child pay child support as calculated by the North Carolina Child Support Guidelines.
Defendant submitted a timely notice of appeal on 10 September 2020.
II. Analysis
¶6 On appeal, Defendant argues that the trial court erred in adjudicating him to
be the father of the child and in ordering him to pay child support. Defendant
contends that the trial court should have applied the law of Virginia, rather than the
law of North Carolina, in making its paternity determination. We agree with
Defendant that the trial court erred in applying North Carolina law, and remand for WARREN COUNTY DSS V. GARRELTS
a new proceeding.
A. Choice of Law vs. Full Faith and Credit
¶7 We first address the applicable principles of law. Defendant, DSS, and the
trial court all apparently agreed that the full faith and credit doctrine was dispositive
in determining whether Virginia law should be applied. The parties are mistaken on
this point.
¶8 The full faith and credit clause of the United States Constitution provides that
“Full Faith and Credit shall be given in each State to public Acts, Records, and
judicial Proceedings of every other State.” U.S. Const. art. IV, § 1. This provision
has been interpreted to mean that “the judgment of a state court should have the
same credit, validity, and effect, in every other court of the United States, which it
had in the state where it was pronounced.” Freeman v. Pac. Life Ins. Co., 156 N.C.
App. 583, 586, 577 S.E.2d 184, 186 (2003) (internal marks and citation omitted). In
other words, the doctrine requires that a “foreign judgment be given the same force
and effect it enjoys in the state where it was rendered.” Id. For example, North
Carolina will provide full faith and credit to “[a] paternity determination made by
another state” when such a determination is made “(1) [i]n accordance with the laws
of that state, and (2) [b]y any means that is recognized in that state as establishing
paternity[.]” N.C. Gen. Stat. § 110-132.1 (2019).
¶9 However, the full faith and credit doctrine is inapplicable here because this WARREN COUNTY DSS V. GARRELTS
case does not involve an existing judgement or order from another state. Based on
the record, it does not appear that the minor child here has ever been the subject of
any previous paternity or child support order, and thus there is no foreign order for
us to credit. Rather, this case involves determining the paternity of a child who was
conceived (via artificial insemination) and born in Virginia, but who is the subject of
a child support action in North Carolina. The issue before us thus becomes whether
we should apply the substantive law of Virginia or North Carolina in adjudicating
this paternity claim.
¶ 10 When a court is faced with a situation such as this—litigation that features
significant ties to multiple states, each of which has conflicting substantive laws—
the court must engage in a choice of law analysis to determine which state’s laws
should be applied to the claims raised in the suit. See Boudreau v. Baughman, 322
N.C. 331, 333, 368 S.E.2d 849, 852 (1988). Because the application of “conflict of law
rules is a legal conclusion,” we conduct a de novo review of the trial court’s decision
to apply North Carolina law. Harco Nat. Ins. Co. v. Grant Thornton LLP, 206 N.C.
App. 687, 694, 698 S.E.2d 719, 724 (2010).
B. Selecting the Proper Choice of Law Test
¶ 11 In determining which state’s laws apply to a given matter, there are two
primary choice of law doctrines that a court may choose from. The most “traditional”
conflict of law doctrine in North Carolina is lex loci, which provides that “matters WARREN COUNTY DSS V. GARRELTS
affecting the substantial rights of the parties are determined by lex loci, the law of
the situs of the claim.” Boudreau, 322 N.C. at 335, 368 S.E.2d at 853-54. In contrast,
the lex fori test provides that “remedial or procedural rights are determined by lex
fori, the law of the forum,” i.e., North Carolina. Id. In other words, “[u]nder North
Carolina choice of law rules, we apply the substantive law of the state where the
cause of action accrued and the procedural rules of North Carolina.” Martin Marietta
Materials, Inc. v. Bondhu, LLC, 241 N.C. App. 81, 83, 772 S.E.2d 143, 145 (2015)
(internal marks and citation omitted). For example, lex fori will govern the technical
and procedural matters involved in any lawsuit, such as “determining the [applicable]
statute of limitations,” Stetser v. TAP Pharm. Prod., Inc., 165 N.C. App. 1, 16, 598
S.E.2d 570, 581 (2004), or determining “the applicable burden of proof,” Taylor v.
Abernethy, 174 N.C. App. 93, 103, 620 S.E.2d 242, 249 (2005).
¶ 12 On the other hand, lex loci will be applied when determining substantive
matters, such as what causes of action are available to a plaintiff or what damages a
plaintiff may recover. Stetser, 165 N.C. App. at 16, 598 S.E.2d at 581. Lex loci has
traditionally been applied in cases “involving tort or tort-like claims.” SciGrip, Inc.
v. Osae, 373 N.C. 409, 420, 838 S.E.2d 334, 343 (2020). See also Gbye v. Gbye, 130
N.C. App. 585, 587, 503 S.E.2d 434, 436 (1998) (recognizing that our state courts
maintain a “strong adherence to the traditional application of the lex loci deliciti
doctrine when choice of law issues arise”). Lex loci has previously been used to WARREN COUNTY DSS V. GARRELTS
adjudicate wrongful death claims, trade secret claims, alienation of affection claims,
and breach of contract claims. See Gbye, 130 N.C. App. at 585, 503 S.E.2d at 434
(wrongful death); SciGrip, 373 N.C. at 421, 838 S.E.2d at 344 (trade secrets); Jones
v. Skelley, 195 N.C. App. 500, 505, 673 S.E.2d 385, 389 (2009) (alienation of affection);
Tennessee Carolina Transp., Inc. v. Strick Corp., 283 N.C. 423, 440, 196 S.E.2d 711,
722 (1973) (breach of contract).
¶ 13 Here, the question becomes whether the present action is governed by the lex
loci test or the lex fori test—in other words, does a paternity statute qualify as a
procedural or substantive law? We conclude that a paternity law is substantive in
nature and thus that the lex loci test should be applied. A “substantial right” has
been defined by this Court as “a legal right affecting or involving a matter of
substance as distinguished from matters of form: a right materially affecting those
interests which a person is entitled to have preserved and protected by law.” Bluebird
Corp. v. Aubin, 188 N.C. App. 671, 677-78, 657 S.E.2d 55, 61 (2008) (internal marks
and citation omitted). A law that formally adjudicates a person’s status as a parent
(or non-parent) of a child meets this definition, as parenthood is one of the most
fundamental protected rights in our entire legal system. We accordingly conclude
that the lex loci test should be applied to determine which state’s paternity law
governs this dispute.
C. Applying Lex Loci WARREN COUNTY DSS V. GARRELTS
¶ 14 The lex loci test states that the rights of the parties are governed by “the law
of the situs of the claim.” Boudreau, 322 N.C. at 335, 368 S.E.2d at 854. This Court
has not previously had occasion to address what qualifies as “the situs of the claim”
when the claim in question is a paternity claim or child support claim. In a tort-based
action, lex loci instructs that we should apply “the substantive law of the state where
the injury or harm was sustained or suffered, which is, ordinarily, the state where
the last event necessary to make the actor liable or the last event required to
constitute the tort takes place.” SciGrip, 373 N.C. at 420, 838 S.E.2d at 343 (internal
marks and citation omitted). In a contract-based action, lex loci states that “the law
of the place where the contract is executed governs the validity of the contract.”
Morton v. Morton, 76 N.C. App. 295, 298, 332 S.E.2d 736, 738 (1985).
¶ 15 Under the unique circumstances of the present case, we conclude that the
proper “situs of the claim” of the parties’ paternity dispute is Virginia. Here, Virginia
is the state where Defendant and Ms. Glenn entered into a “verbal contract”
regarding the artificial insemination; Virginia is where the artificial insemination
occurred; Virginia is where Ms. Glenn lived during the entirety of her pregnancy;
Virginia is where the child was born; and Virginia is where the mother and child lived
together for the first several years of the child’s life. Under the lex loci tort theory,
Virginia thus qualifies as the state where “the last event necessary to make the actor
liable” occurred, in that it was the state where Ms. Glenn was impregnated and gave WARREN COUNTY DSS V. GARRELTS
birth. Under the lex loci contractual theory, Virginia also qualifies as the state where
the contract was executed, in that it was the state where Ms. Glenn and Defendant
entered into a “verbal contract” regarding the artificial insemination.
¶ 16 Moreover, this result is supported by persuasive caselaw from other
jurisdictions. For example, in In re Marriage of Adams, 133 Ill. 2d 437, 447, 551
N.E.2d 635, 639 (1990), the Illinois Supreme Court concluded that Florida law (rather
than Illinois law) should apply to a paternity and child support action for a child
conceived via artificial insemination. There, a married woman living in Florida
underwent artificial insemination at a medical clinic, in which she was “artificially
inseminated with semen of a man other than her husband.” Id. at 440, 551 N.E.2d
at 636. The husband and wife continued to live together throughout her pregnancy,
and the child was born in Florida. Id. The couple separated when the child was
several months old, and the wife and child moved to Illinois, where she subsequently
filed a petition for child support. Id. In his answer to the petition, the husband
acknowledged that the child was born during the marriage but asserted that he was
not the father because the child was conceived as a result of artificial insemination
to which he did not consent. Id. at 441, 551 N.E.2d at 636. The trial court adjudicated
the husband the legal father of the child under Illinois law. Id. at 442-43, 551 N.E.2d
at 637.
¶ 17 On appeal, the Illinois Supreme Court recognized that the case presented a WARREN COUNTY DSS V. GARRELTS
choice of law issue, because Illinois law provided that children conceived via artificial
insemination to a married couple were presumed legitimate, whereas Florida law
provided that such children were only legitimate if both the husband and wife had
consented in writing to the artificial insemination. Id. at 443-44, 551 N.E.2d at 637-
38. Applying Illinois choice of law rules, the Court held that the law of Florida should
govern the paternity action because Florida had “the more significant relationship to
the dispute.” Id. at 447, 551 N.E.2d at 639. The Court found it relevant that “[the
wife] was . . . inseminated in Florida, the Adamses were residents of Florida at that
time and continued to live there during the course of the pregnancy, and the child
was born in Florida.” Id.
¶ 18 The Illinois Supreme Court concluded that “whether a parent-child
relationship exists . . . as a result of [] artificial insemination should not depend on
the laws of every State in which the family members may find themselves in the
future.” Id. The Court noted that this rule would best “fulfill the participants’
expectations and [] help ensure predictability and uniformity of result,” because the
parties participating in an artificial insemination procedure will naturally “expect
that their own local law will govern the relationships created by it.” Id. See also In
re K.M.H., 285 Kan. 53, 56-62, 169 P.3d 1025, 1030-32 (2007) (holding that a paternity
action for twins conceived via artificial insemination should be governed by the law
of Kansas because the “original oral agreement with [the sperm donor] took place in WARREN COUNTY DSS V. GARRELTS
Kansas; the parties reside in Kansas; the sperm resulting in the pregnancy was given
to [the mother] by [the donor] in Kansas . . . [and] the twins were born in Kansas and
reside in Kansas”).
¶ 19 We agree with this approach. Under the lex loci doctrine, following the
paternity laws of the state where the child is conceived not only fulfills the parties’
natural expectations, but helps ensure predictable and equitable results. If we were
to accept DSS’s arguments—and hold that a paternity action is simply governed by
the laws of whichever state the plaintiff chooses to sue in—this would encourage
forum-shopping, as a parent seeking a paternity determination could simply travel
to whichever state has the most favorable laws. See Hamdan v. Freitekh, 271 N.C.
App. 383, 386, 844 S.E.2d 338, 341 (2020) (noting that an important goal of child
support and custody laws is “to prevent parents from forum shopping their child
custody disputes and assure that these disputes are litigated in the state with which
the child and the child’s family have the closest connection”) (internal marks and
citation omitted). We cannot condone such a result, and instead conclude that, under
our state’s choice of law principles, we must follow the paternity law of the state
where the insemination and conception occurred.3 Because that state here is
3 However, we emphasize that no single factor is dispositive in determining which
state qualifies as the “situs of the claim” for a paternity action under the lex loci theory. This analysis is highly fact-based and individualized and must be carefully considered under the unique circumstances of each case. WARREN COUNTY DSS V. GARRELTS
Virginia, the trial court erred in applying North Carolina law to this matter.
III. Conclusion
¶ 20 Because this matter was decided in the trial court under the inappropriate law,
and because the parties have not had an opportunity to brief and argue the relevant
issues under Virginia law,4 we reverse the trial court’s order and remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Judges DIETZ and COLLINS concur.
4 We make no comment on the ultimate outcome of this matter under Virginia law—
it is the role of the trial court to determine on remand whether Defendant qualifies as the child’s legal parent under the applicable Virginia law.