Case of the Day: Savage v. Zelent

The case of the day is Savage v. Zelent (N.C. Ct. App. 2015). Alan Savage and Julie Anne Zelent lived together as a couple in Scotland. They eventually separated, and Zelent moved to North Carolina. She sued Savage in the Inverness Sheriff’s Court under the Family Law (Scotland) Act 2006, claiming that she was entitled to support from him. After a trial, the Sheriff found that Zelent was not entitled to contribution. Zelent did not appeal. Zelent’s counsel withdrew from the representation, which under the governing procedure meant that a peremptory diet—a kind of hearing— had to be held. The hearing was held, but Zelent did not appear despite receiving notice. In her absence, as permitted by Scots law, the Sheriff awarded Savage his expenses in an amount to be later determined by the Auditor. The Auditor held a diet of taxation, a hearing for the purpose of determining the amount of expenses. Again, Zelent did not attend. The Auditor found expenses in the amount of £148,516.75, and the Sheriff approved the report and awarded the expenses. Zelent did not appeal, but she also did not pay.

Savage sought recognition and enforcement of the judgment in North Carolina. The trial court recognized the judgment, and Zelent appealed.

The UFCMJRA, as enacted in North Carolina, excepts judgments “for alimony, support, or maintenance in matrimonial or family matters” from the scope of the statute. Zelent argued that the judgment was within the scope of this exception and thus that the lower court had erred by recognizing the judgment under the statute. The appellate court disagreed. The judgment, it reasoned, was not for alimony, support, or maintenance, but for costs and fees. The court declined to read the word “for” more broadly to mean something like, “arising out of or relating to.”

Zelent also argued that the judgment was repugnant to public policy. Zelent had chosen the courts of Scotland to litigate her claim, and she failed to appeal when she lost, which the court thought fatal insofar as Zelent could have raised whatever issues of unfairness she wished to raise in Scotland. More particularly, although the Auditor had opined in an aside that the expenses Savage claimed were high, that is hardly enough to call the fairness of the proceedings into question under the prong of the UFCMJRA allowing non-recognition in cases where there is “corruption in the particular case.” The court also rejected the notion that the “loser pays” rule of attorney’s fees in Scotland is repugnant to public policy. Although the American rule is to the contrary, the difference in law was not sufficient to allow Zelent to prevail, and in any case North Carolina law allows recovery of attorney’s fees in domestic relations cases.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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