Butler v. Butler

• Decision Date: 06 August 2002
• Docket Number: No. COA01-809.,COA01-809.
• Citation: 566 S.E.2d 707,152 NC App. 74
• Court: North Carolina Court of Appeals
• Parties: Sandra BUTLER, Plaintiff, v. Jeffrey BUTLER, Defendant.

566 S.E.2d 707

152 NC App. 74

Sandra BUTLER, Plaintiff, v. Jeffrey BUTLER, Defendant.

No. COA01-809.

Court of Appeals of North Carolina.

August 6, 2002.

The Rosen Law Firm, by Lee S. Rosen and Erik L. Mazzone, Raleigh, for plaintiff appellee.

Staton, Perkinson, Doster, Post, and Silverman, P.A., by Jonathan Silverman and Charles M. Oldham, III, Sanford, for defendant-appellant.

CAMPBELL, Judge.

Jeffrey Butler ("defendant") appeals from the trial court's order denying his motion to dismiss plaintiff's action pursuant to N.C. R. Civ. P. 12(b)(2) based on lack of personal jurisdiction. We hold that the trial court correctly concluded that sufficient grounds exist for the courts of this State to exercise personal jurisdiction over defendant in the instant action. Accordingly, we affirm the trial court's ruling.

Jeffrey and Sandra Butler ("plaintiff") were married in Florida on 19 October 1992. The parties have a daughter, Shannon Butler, who was born on 12 November 1991 and lived with the parties in the Bahamas during the first four or five years of their marriage.¹ In 1995 or 1996, plaintiff and her two daughters moved to Florida, then on to North Carolina, where they took up residence in a house in Moore County purchased by plaintiff and defendant.

Plaintiff and defendant separated on 1 July 2000, and on 18 September 2000, plaintiff instituted the instant action, seeking child support, alimony, postseparation support, and equitable distribution. The complaint alleges that "[d]efendant is a citizen and resident of Freeport, Grand Bahama Island." Defendant was served with the summons and complaint in Florida on 27 September 2000. On 16 October 2000, defendant filed a motion to dismiss plaintiff's complaint under N.C. R. Civ. P. 12(b)(2), asserting that the court lacked personal jurisdiction over him "in that he has at no time been a resident of the State of North Carolina." After hearing the testimony of plaintiff and defendant, the trial court concluded that defendant had sufficient minimum contacts with this State to allow the court to constitutionally assert personal jurisdiction over him under this State's long arm statutes, including, but not limited to, N.C. Gen.Stat. § 52C-2-201. Accordingly, the trial court denied defendant's motion to dismiss. Defendant appeals.

The denial of a motion to dismiss for lack of personal jurisdiction, although interlocutory, is immediately appealable. N.C. Gen.Stat. § 1-277(b) (2001); Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982); Cooper v. Shealy, 140 N.C.App. 729, 537 S.E.2d 854 (2000). In reviewing an order determining whether personal jurisdiction is statutorily and constitutionally permissible, "[t]he trial court's findings of fact are conclusive if supported by any competent evidence and judgment supported by such findings will be affirmed, even though there may be evidence to the contrary." Shamley v. Shamley, 117 N.C.App. 175, 180, 455 S.E.2d 435, 438 (1994) (citing Little v. Little, 9 N.C.App. 361, 365, 176 S.E.2d 521, 523-24 (1970)).

It is well settled "that a two-step analysis is to be employed to determine whether a non-resident defendant is subject to the in personam jurisdiction of our courts." Miller v. Kite, 313 N.C. 474, 476, 329 S.E.2d 663, 665 (1985). First, it should be determined whether North Carolina law provides a statutory basis for the assertion of personal jurisdiction in the action the plaintiff has brought against the defendant. Id.; see also Sherlock v. Sherlock, 143 N.C.App. 300, 301, 545 S.E.2d 757, 759 (2001); Shamley, 117 N.C.App. at 178,455 S.E.2d at 437. If the court concludes that there is a statutory basis for jurisdiction, it must determine whether the exercise of personal jurisdiction comports with the due process requirements of the Fourteenth Amendment. Miller, 313 N.C. at 476,329 S.E.2d at 665.

The trial court entered the following findings of fact in support of its conclusion that personal jurisdiction over defendant was statutorily and constitutionally permissible in the instant case:

a. Prior to the institution of these lawsuits, Defendant purchased a house in Moore County with the Plaintiff partially to allow his daughter to be schooled in North Carolina, therefore availing himself of the Moore County Schools and other associated benefits provided by the state.

b. While married to the Plaintiff and after the parties had purchased their residence in Moore County, the Defendant visited Moore County at least once per month for at least two years. During these visits he would reside in the marital residence for three (or more) day periods.

c. Defendant maintains a membership in Moore County [H]ounds, a social and sporting association and has participated in its activities in Moore County.

d. Defendant has used the equity line attached to the marital residence in Moore County for business purposes.

These findings of fact are supported by the testimony of the parties, which was the only evidence received by the trial court.

Defendant testified that the parties purchased the house in Moore County in 1995 and that his name appears on the deed and on the mortgage to the house. Defendant also testified that he "was convinced that North Carolina was the best place for education for the girls." However, later in his testimony, defendant stated that he took no part in plaintiff's decision to take the girls to North Carolina, but that he agreed to purchase the house and let the girls stay in school here instead of fighting the issue in the Supreme Court of the Bahamas, which was the girls' legal residence. According to defendant's testimony, he moved plaintiff and the girls to Florida in 1995. Two months later, without his knowledge, plaintiff moved with the girls to North Carolina. Defendant testified that he visited plaintiff and the girls an average of once per month following their move to North Carolina. Defendant also testified that he and plaintiff had taken out an equity line of credit on the house in Moore County.

Plaintiff testified that she and defendant purchased the house in North Carolina in 1995 with the intention of moving the following year, and that defendant made preparations to sell his business in the Bahamas in anticipation of the family's move to this State. According to plaintiff, defendant visited her and the girls every two weeks following their move to Moore County. She further testified that defendant used the equity line of credit on the Moore County house to obtain cash to purchase supplies to take back to the Bahamas for business purposes.² Although the testimony of the parties conflicts as to certain details of the course of events, there is competent evidence in the record to support the findings of fact entered by the trial court. Thus, we must determine whether these findings support the exercise of personal jurisdiction over defendant. See Shamley, 117 N.C.App. at 180, 455 S.E.2d at 438.

The trial court found statutory grounds for personal jurisdiction under the Uniform Interstate Family Support Act ("UIFSA"), codified in Chapter 52C of the North Carolina General Statutes. See N.C. Gen.Stat. § 52C-1-100 to—9-902 (2001).³ We agree.

UIFSA provides procedural mechanisms for the interstate establishment, enforcement and modification of child and spousal support obligations. N.C.G.S. § 52C-1-103 official commentary; Welsher v. Rager, 127 N.C.App. 521, 524, 491 S.E.2d 661, 663 (1997). UIFSA was enacted to replace its predecessor, the Uniform Reciprocal Enforcement of Support Act ("URESA"). Under URESA, a state could assert jurisdiction to establish, vacate, or modify a child or spousal support obligation even when a similar obligation had been created in another jurisdiction. Welsher, 127 N.C.App. at 524,491 S.E.2d at 663. "The result was often multiple, inconsistent obligations existing for the same obligor and injustice in that obligors could avoid their responsibility by moving to another jurisdiction and having their support obligations modified or even vacated." Id. UIFSA creates a structure designed to correct this problem and provide for only one support order at a time. N.C.G.S. § 52C-2-201 official commentary.

UIFSA provides two options for a petitioner seeking to establish a child or spousal support order against a respondent residing in another state. First, the petitioner may initiate a two-state proceeding to establish a support order in the respondent's State of residence. N.C.G.S. § 52C-3-301(c); N.C.G.S. § 52C-2-203 to—2-206. This two state procedure is derived from the two-state procedure under URESA. N.C.G.S. § 52C-3-301 official commentary. In this situation, the initiating State does not assert personal jurisdiction over the nonresident respondent, but instead forwards the case to the responding State (the respondent's State of residence), which has the authority to assert personal jurisdiction over its resident. N.C.G.S. § 52C-2-203 official commentary.

The second option is for the petitioner to utilize UIFSA's long-arm statute to obtain personal jurisdiction over the nonresident respondent. N.C.G.S. § 52C-2-201. The petitioner may then file a petition or comparable pleading directly in the State which has or can obtain personal jurisdiction over the respondent. N.C.G.S. § 52C-3-301(c).⁴ The purpose of UIFSA's long-arm statute is to reduce the frequency of the two-state procedure. N.C.G.S. § 52C-2-201 official commentary. In a one-state proceeding under the long-arm statute, the forum State may utilize certain two-state procedures which forward the interests of economy, efficiency, and fair play. N.C.G.S. § 52C-2-202 official commentary. Thus, under N.C.G.S. § 52C-2-202, when a court of this State exercises personal jurisdiction over a nonresident under N.C.G.S. § 52C-2-201, it "may apply G.S. 52C-3-315 to receive evidence from another state, and G.S. 52C-3-317 to obtain discovery through a tribunal of another state." N.C.G.S. § 52C-2-202.

In the...