Cooper v. Cooper

• Decision Date: 05 July 1988
• Docket Number: No. 8726DC1064,8726DC1064
• Citation: 90 N.C.App. 665,369 S.E.2d 630
• Court: North Carolina Court of Appeals
• Parties: Eddie Lee COOPER, Jr., Plaintiff, v. Glenda COOPER, Defendant.

Page 630

369 S.E.2d 630

90 N.C.App. 665

Eddie Lee COOPER, Jr., Plaintiff, v. Glenda COOPER, Defendant.

No. 8726DC1064.

Court of Appeals of North Carolina.

July 5, 1988.

Ray Rankin and Merryman, Dickinson, Ledford & Rawls by Charles B. Merryman, Jr., Charlotte, for plaintiff-appellant.

Wishart, Norris, Henninger & Pittman by Alan R. Krusch, Charlotte, for defendant-appellee.

PHILLIPS, Judge.

The parties, formerly husband and wife, lived for many years in Mecklenburg County where they separated for the last time in 1984, after which defendant moved to South Carolina and obtained a divorce on 18 February 1986. Within six months thereafter this action for the equitable distribution of three parcels of Mecklenburg County real estate that the parties acquired during the marriage was brought. Following defendant's motion to dismiss and a hearing thereon at which depositions, pleadings and other materials were considered the court dismissed the action by order of summary judgment on the ground that it is barred by the South Carolina divorce judgment under G.S. 50-11(f) which provides as follows:

An absolute divorce by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property shall not destroy the right of a spouse to an equitable distribution of marital property under G.S. 50-20 if an action or motion in the cause is filed within six months after the judgment of divorce is entered. (Emphasis supplied).

The decision that plaintiff's right to an equitable distribution of their Mecklenburg County real estate was destroyed by the divorce judgment is based upon findings of fact and conclusions of law that the South Carolina court had personal jurisdiction over the absent plaintiff and had jurisdiction to dispose of their property. Though both these determinations are challenged by plaintiff, the determination that the South Carolina court had personal jurisdiction of plaintiff is invulnerable under the principles laid down in International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, (1945) and Miller v. Kite, 313 N.C. 474, 329 S.E.2d 663 (1985) because it is supported by evidence and findings that plaintiff had had many substantial contacts with the State of South Carolina over a period of several years and plaintiff was served with process in accord with that State's long arm statute. But the determination that the South Carolina court had jurisdiction to dispose of the marital property is not similarly supported, as the following record facts and applicable provisions of South Carolina law plainly show:

Following a series of separations and reconciliations beginning in 1978 when the parties were domiciled in Mecklenburg County, defendant moved to South Carolina in 1984 and in September, 1985 she sued for divorce in the Family Court of Horry County, South Carolina and plaintiff was served in North Carolina, where he continued to be domiciled, by certified mail. In the petition or complaint defendant alleged in substance only that she was entitled to an absolute...