Brookshire v. Brookshire

• Decision Date: 01 March 1988
• Docket Number: No. 8721DC336,8721DC336
• Citation: 89 N.C.App. 48,365 S.E.2d 307
• Court: North Carolina Court of Appeals
• Parties: , 56 USLW 2571 Nell Bryan BROOKSHIRE v. Atwell J. BROOKSHIRE.

Page 307

365 S.E.2d 307

89 N.C.App. 48, 56 USLW 2571

Nell Bryan BROOKSHIRE v. Atwell J. BROOKSHIRE.

No. 8721DC336.

Court of Appeals of North Carolina.

March 1, 1988.

McElwee, McElwee, Cannon & Warden by William H. McElwee, III, North Wilkesboro, for defendant-appellant.

David B. Hough, Winston-Salem, for plaintiff-appellee.

JOHNSON, Judge.

Plaintiff commenced this domestic action on 19 June 1985 seeking alimony pendente lite, permanent alimony, custody of the couple's three minor children, child support and attorneys fees. On 15 July 1985 defendant filed a motion to dismiss the complaint on the grounds that he had instituted an action for absolute divorce on 3 June 1985 and such action was pending in Lorain County Court of Common Pleas, Domestic Relations Division, State of Ohio.

On 18 February 1986, the Ohio divorce action was voluntarily dismissed. No final order concerning child custody or child support was ever entered in that cause. However, various orders were entered by the Forsyth County District Court pursuant to plaintiff's action as follows: a 15 July 1985 order finding jurisdiction over the custody of the children as provided in G.S. 50A-3(a)(2), and awarding to plaintiff primary custody of the minor children; a 21 August 1985 order awarding child support, alimony pendente lite and attorneys fees to plaintiff; and a 16 October 1985 order awarding to plaintiff permanent alimony and other various forms of relief.

On August 6, 1986, almost six months after having taken a voluntary dismissal in his Ohio divorce action, defendant made two motions to dismiss plaintiff's complaint, on the grounds that the District Court of Forsyth County lacked both subject matter jurisdiction and in personam jurisdiction. In pursuit of these motions, defendant, together with his attorney of record, made an appearance on 13 August 1986 at a chambers hearing of the District Court, Forsyth County to address the jurisdictional issues raised. After hearing testimony, reviewing the court file and considering the arguments of counsel, the court denied both motions and concluded, in its 10 November 1986 order, that it had subject matter jurisdiction at the time of the entry of all of its orders, and in personam jurisdiction over defendant at the time of the entry of all of its orders as well.

From the trial court's order, defendant appeals.

Defendant raises two issues by this appeal, challenging the court's conclusions that it had both subject matter jurisdiction and in personam jurisdiction at the time of the entry of all of its orders as well as of 13 August 1986, when defendant appeared before the court to challenge jurisdiction.

By his first Assignment of Error, defendant contends that the action for absolute divorce which he instituted in the State of Ohio on 3 June 1985, precluded an exercise of jurisdiction by the District Court of Forsyth County over plaintiff's action as it pertained to child custody and support. He bases this argument upon an interpretation of G.S. 50A-6(a) of the Uniform Child Custody Jurisdiction Act, which states:

If at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Chapter, a court of this State shall not exercise its jurisdiction under this Chapter, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.

(Emphasis added).

Our inquiry centers on whether an action "concerning the custody of the child[ren]" was actually "pending" in Ohio at the time plaintiff filed her complaint on 19 June 1985 in North Carolina. In his prayer for relief in the Ohio divorce action, filed 3 June 1985, defendant requested that he "be granted an absolute divorce from [plaintiff], an equitable division of the property of the parties, and for such other relief as the Court may deem just and equitable." Defendant made no mention whatsoever of the issue of child custody. Even where a prayer for relief is silent on the issue, however, Ohio courts may exercise jurisdiction over child custody matters in a divorce action under certain conditions as follows:

Upon satisfactory proof of the causes in the complaint for divorce, annulment, or alimony, the court of common pleas shall make an order for the disposition, care, and maintenance of the children of the marriage, as is in their best interests, and in accordance with section 3109.04 of the Revised Code.

Ohio Rev.Code Ann. sec. 3105.21(A) (Anderson 1987) (Emphasis added).

The "satisfactory proof" basically required, is a showing of proof sufficient to enable the moving party to prevail on the petition for divorce or alimony. Haynie v. Haynie, 108 Ohio App. 342, 161 N.E.2d 549 (1958), aff'd, 169 Ohio St. 467, 159 N.E.2d 765 (1959). Where the complainant fails to make such a showing, the court has no jurisdiction over child custody matters.

[U]ntil the production of 'satisfactory proof' of any of the charges in the petition for divorce or alimony in a hearing upon the merits, there is no authority in the Court of Common Pleas to make any permanent order with reference to custody of the children of the marriage or to certify the question of custody to the Juvenile Court.

Id. at 344, 161 N.E.2d at 550.

It is evident upon a review of the facts in this case, that defendant made no showing of "satisfactory proof" of the charges in his petition for divorce. Defendant instituted the action for divorce on 3 June 1985 in Lorain County, Ohio, Court of Common Pleas. The only reported activity in the case was a 23 August 1985 order directing that an investigation and home evaluation be conducted on Nell Brookshire to aid the court in determining the issue of custody, and a voluntary dismissal taken on 18 February 1986. It is important to note here that the home evaluation was ordered nearly three months after plaintiff, along with the minor children, had left the state and moved to North Carolina. Since defendant failed to produce satisfactory proof of any of the charges in his divorce petition, prior to voluntarily dismissing the action, the Ohio courts never obtained jurisdiction over the matters concerning child custody and support. See Haynie, supra.

Although defendant did not argue the point in his brief, it is also important for us to note that ordinarily where the party fails to produce sufficient proof of the causes in the complaint, the Ohio courts could still exercise jurisdiction over custody matters pursuant to Ohio Rev.Code Ann. sec. 3105.21(B) (Anderson 1987), which provides:

Upon the failure of proof of the causes in the complaint, the court may make the order for the disposition, care, and maintenance of any dependent child of the marriage as is in the child's best interest, and in accordance with section 3109.04 of the Revised Code.

However, defendant may not avail himself of this provision because the statute is inapplicable to situations where, as in the case sub judice, the complaint for divorce was voluntarily dismissed. Lilly v. Lilly, 26 Ohio App.3d 192, 499 N.E.2d 21 (1985). Once the trial court sustains the motions to dismiss, it is without jurisdiction to make any further order, and the action is treated as if it had never been brought. Lilly, supra.

Therefore, the District Court of Forsyth County was not precluded from exercising subject matter jurisdiction over this action by G.S. 50A-6(a), as there was no proceeding concerning the custody of the minor children pending in a court of another state, namely Ohio, when plaintiff filed her complaint.

The court found, in its 15 July 1985 order, that it had jurisdiction over the custody of the children pursuant to G.S. 50A-3(a)(2). This provision essentially confers jurisdiction where it is in...