Dillard v. Dillard

• Decision Date: 18 November 2014
• Docket Number: No. COA14–304.,COA14–304.
• Citation: 767 S.E.2d 151 (Table)
• Court: North Carolina Court of Appeals
• Parties: Karen Leigh Vester DILLARD, Plaintiff, v. Thomas Thurman DILLARD, Jr., Defendant.

767 S.E.2d 151 (Table)

Karen Leigh Vester DILLARD, Plaintiff

v.Thomas Thurman DILLARD, Jr., Defendant.

No. COA14–304.

Court of Appeals of North Carolina.

Nov. 18, 2014.

No brief filed for plaintiff-appellee.

Thomas T. Dillard, Jr., pro se, for defendant-appellant.

DIETZ, Judge.

Defendant Thomas T. Dillard, Jr. appeals from the trial court's order granting his ex-wife's motion for summary judgment on her claim for absolute divorce. Defendant, who is currently incarcerated, filed a handwritten pro seappellate brief challenging the trial court's jurisdiction, the venue for the proceeding, and various procedural aspects of the action below. Because the trial court had jurisdiction to hear the claim, because Defendant waived any challenge to venue, and because the court correctly determined that there are no disputed issues of material fact, we affirm the trial court's entry of summary judgment.

Factual Background

Plaintiff and Defendant were married on 30 December 2002 and permanently separated by the summer of 2011.¹ On 19 June 2013, Plaintiff petitioned to sue as an indigent and filed a verified complaint with the Clerk of Court in Mecklenburg County seeking absolute divorce. In her complaint, Plaintiff alleged that the parties “have lived continuously separate and apart with the intent to cease the marital relationship for no less than one year and a day next preceding the date this document was notarized as indicated by the date below and at no time since have resumed the marital relationship.” Plaintiff attested to being a resident of North Carolina for the six months preceding the filing of the complaint and requested that her verified complaint be “accept [ed] ... as an affidavit for the purpose of granting Summary Judgment.”

Defendant filed an answer on 9 July 2013, offering a general denial of the allegations in Plaintiff's complaint and moving to dismiss based on a number of alleged procedural and technical violations. Defendant was in prison when he filed his responsive pleading. Later that month, Defendant filed a “Request and Notice” with the trial court asking that any hearing be held no sooner than four months from the date of the initial filing of the action and that he be allowed to participate.

On 12 September 2013, Defendant submitted an application and writ of habeas corpus ad testificandum,seeking permission to be brought from prison to testify at the divorce hearing, as well as a petition to sue as an indigent. That same day, Defendant filed a verified “Counterclaim Complaint for Divorce from Bed and Board” in which he alleged fault on the part of Plaintiff, raised issues relating to equitable division of the parties' marital property, asked the court to award spousal support, and requested a jury trial. Defendant also renewed his jurisdictional and procedural defenses, requesting a change of venue to Nash County.

In his counterclaim, Defendant stated (under oath) that both parties are residents of Nash County, North Carolina, and had been for more than six months preceding the filing of the action. Defendant further stated that the parties were married on 30 December 2002 and permanently separated on 27 June 2010 “by such conditions of marital discord that [Defendant] was forced to flee from his place of shared residence with [Plaintiff] as a direct result of [Plaintiff's] continued, unprovoked assaults upon his physical, mental, and legal stability.”

Plaintiff moved for summary judgment on her claim for absolute divorce on 27 November 2013. In response, Defendant asked that the motion be denied, arguing that the court was without jurisdiction to hear the claim and that there existed material questions of fact requiring an evidentiary hearing.

The trial court granted Plaintiff's motion on 11 December 2013, ordering absolute divorce while specifically preserving “any valid counter-claim” that existed prior to the judgment.

Defendant filed a timely notice of appeal on 19 December 2013. This Court denied his petitions for a stay of judgment and writ of supersedeas on 19 March 2014, and denied his petition for a writ of mandamus on 8 May 2014.

Analysis

I. Subject Matter Jurisdiction

Defendant first argues that the trial court lacked subject matter jurisdiction over Plaintiff's claim for absolute divorce. Subject matter jurisdiction refers to a court's “power to hear and to determine a legal controversy; to inquire into the facts, apply the law, and to render and enforce a judgment.” High v. Pearce,220 N.C. 266, 271, 17 S.E.2d 108, 112 (1941) (citation and internal quotation marks omitted). This Court has stated that “[j]urisdiction of the court over the subject matter of an action is the most critical aspect of the court's authority to act.” Harris v. Pembaur,84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987).

A court obtains subject matter jurisdiction over a claim through the North Carolina Constitution or by statute. Id.“Subject matter jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter jurisdiction may be raised for the first time on appeal.” In re H.L.A.D.,184 N.C.App. 381, 385, 646 S.E.2d 425, 429 (2007), aff'd,362 N.C. 170, 655 S.E.2d 712 (2008).

In divorce actions, subject matter jurisdiction is conferred by Section 7A–244 of the General Statutes, which provides that the district courts are the proper division for the trial of civil actions and proceedings for divorce. N.C. Gen.Stat. § 7A–244 (2013). Additionally, the statutory residency requirements in divorce proceedings are jurisdictional and thus, to confer jurisdiction on the trial court, the plaintiff must allege facts satisfying the statutory residency requirement. See Martin v. Martin,253 N.C. 704, 706, 118 S.E.2d 29, 31 (1961) ; see alsoN.C. Gen.Stat. § 50–6, 50–8 (2013).

The trial court in this case properly exercised subject matter jurisdiction over Plaintiff's claim. The complaint raises a standard claim for absolute divorce after separation of one year, and both parties have attested—in verified pleadings—to residing in the State for a period of six months prior to the commencement of the action, as required by statute. Thus, Defendant's jurisdictional argument is without merit.

II. Venue

Defendant also argues that the trial court erred by failing to grant his motion for a change of venue. Defendant asserts that neither party has ever been a resident of Mecklenburg County, where this action was heard, and that Plaintiff and Defendant have at all relevant times owned property and made their marital home in Nash County.

The proper venue for an action seeking absolute divorce is the county in which either party resides, or the county where the defendant resides if the plaintiff is a nonresident. N.C. Gen.Stat. § 50–3 (2013). This requirement is non-jurisdictional and may be waived. Smith v. Smith,56 N.C.App. 812, 813, 290 S.E.2d 390, 391 (1982). “If an action for divorce be instituted in a county in the State other than the county of proper venue, the action may be tried therein, unless the defendant before the time of answering expires demands in writing that the trial be had in the proper county.”Id.(citation and internal quotation marks omitted).

A venue objection may be asserted in either a responsive pleading or a motion to dismiss for improper venue under North Carolina Rule of Civil Procedure 12(b)(3). LendingTree, LLC v. Anderson,––– N.C.App. ––––, ––––, 747 S.E.2d 292, 297 (2013). Even if a defendant properly raises a venue objection, however, he can impliedly waive the defense through subsequent actions or conduct. Id.Factors indicating waiver of a venue defense “include: (i) failure to unambiguously raise and pursue a venue objection; (ii) participation in litigation; and (iii) unnecessary delay.” Id.This court reviews arguments relating to a waiver of venue defense de novo. See generally Hawley v. Hobgood,174 N.C.App. 606, 622 S.E.2d 117 (2005) ; Miller v. Miller,38 N.C.App. 95, 247 S.E.2d 278 (1978).

Here, Defendant raised a venue objection in his responsive pleading, but never pursued that claim or noticed it for a hearing. After Defendant filed his “Answer and Defense” in which he presented his objection and requested a change of venue, Defendant later filed with the trial court a “Request and Notice”; a petition for a writ of habeas corpus ad testificandum;a petition to sue as an indigent; a “Counterclaim Complaint for Divorce from Bed and Board”; and a response to Plaintiff's summary judgment motion—all without seeking a hearing on his venue objection or otherwise pursuing that argument. Defendant's failure to pursue his venue argument and his participation in extensive litigation in the Plaintiff's chosen forum constitute waiver of this venue issue. See Shaw v. Stiles,13 N.C.App. 173, 175, 185 S.E.2d 268, 269 (1971) (holding that defendants waived venue defense by participating in subsequent litigation without moving to dismiss); LendingTree, ––– N.C.App. at ––––, 747 S.E.2d at 299 (holding that participation in discovery was a factor in finding waiver).

III. Procedural Rules

Defendant also asserts a series of technical challenges to the complaint that he believes were grounds for the trial court to dismiss Plaintiff's absolute divorce claim. First, Defendant objects to Plaintiff's failure to state any rules or procedural grounds for relief in her complaint, citing Rule 7(b) of the North Carolina Rules of Civil Procedure as well as Rule 6 of the General Rules of Practice for the Superior and District Courts, which supplement the Rules of Civil Procedure as provided by N.C. Gen.Stat. § 7A–34 (2013).

Defendant's reliance on these provisions is misplaced because these rules concern requirements for motionsin civil actions, while a complaint is governed by the rules for pleadings. SeeN .C. Gen.Stat. § 1A–1, Rule 7(a) (2013) (distinguishing pleadings from motions and other papers). Accordingly, we reject this argument.

Defendant also argues that the complaint did not provide adequate notice of Plaintiff's...