Fungaroli v. Fungaroli

• Decision Date: 07 April 1981
• Docket Number: No. 8021SC582,8021SC582
• Citation: 51 N.C.App. 363,276 S.E.2d 521
• Parties: Judith Diane FUNGAROLI v. Michael A. FUNGAROLI, Betty S. Fungaroli, and Robert Michael Fungaroli.
• Court: North Carolina Court of Appeals

Page 521

276 S.E.2d 521

51 N.C.App. 363

Judith Diane FUNGAROLI v. Michael A. FUNGAROLI, Betty S. Fungaroli, and Robert Michael

Fungaroli.

No. 8021SC582.

Court of Appeals of North Carolina.

April 7, 1981.

Wilson & Redden by Harold R. Wilson, Winston-Salem, for plaintiff-appellee.

Womble, Carlyle, Sandridge & Rice by Keith W. Vaughan, Winston-Salem, for defendant-appellant.

MORRIS, Chief Judge.

Defendant contends that the trial court improperly denied his motion to dismiss plaintiff's action insofar as it applied to him, because the evidence in the record did not support the trial court's finding that it had personal jurisdiction over him.

Our "long-arm" statute, G.S. 1-75.4, determines those circumstances under which our courts have in personam jurisdiction. That statute reads in pertinent part as follows:

Personal jurisdiction, grounds for generally. A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances:

(3) Local Act or Omission. In any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant.

Subject to the limitations imposed by due process, this section should be liberally construed in favor of finding personal jurisdiction. Leasing Corp. v. Equity Associates, 36 N.C.App. 713, 245 S.E.2d 229 (1978); Dillon v. Funding Corp., 29 N.C.App. 513, 225 S.E.2d 137 (1976), rev'd on other grounds, 291 N.C. 674, 231 S.E.2d 629 (1977). In addition to meeting the statutory requirements, in order for a court to exercise its jurisdiction the defendant must be found to have certain minimum contacts with the State in compliance with due process requirements. Hankins v. Somers, 39 N.C.App. 617, 251 S.E.2d 640, cert. denied, 297 N.C. 300, 254 S.E.2d 920 (1979); Leasing Corp. v. Equity Associates, supra.

Defendant does not argue that he did not have minimum contacts with this State. However, he does argue that the evidence before the trial court did not meet the statutory requirements of G.S. 1-75.4.

Plaintiff contended that defendant participated, along with the other two defendants, in the act of removing her child from North Carolina at the time of the custody hearing. In her complaint plaintiff alleged that:

VII. The plaintiff is informed, believes and therefore alleges that the defendant, Robert Michael Fungaroli, acting in concert with both the co-defendants, Michael A. Fungaroli and Betty S. Fungaroli, secretly left the State of North Carolina with the said minor child for the purpose of defeating the plaintiff's right to the custody and control of her said minor child; that the defendants, acting independently and jointly, did abduct said child and remove him from the State of North Carolina in violation of G.S. 14-320.1.

Plaintiff submitted her own affidavit in opposition to defendant's motion to dismiss. In further support of her contention that defendant participated in the removal of the child from the State, plaintiff, in her affidavit, stated:

Sometime subsequent to the date we were in Court, I do not remember the exact date, I again called the Fungarolis' home in Springfield, Virginia and Michael A. Fungaroli answered the phone. I asked him if my child was there and if I could see my child. He informed me that the child was there; that I did not have any right to see the child and that I would never see him again. I asked Mr. Fungaroli why they had taken the child out of the State of North Carolina after the Court had ordered that the child be returned over to me immediately. Mr. Fungaroli stated, "We brought the child back to Virginia because the case is on appeal. We will win the appeal, and you will never see Derek again." (Emphasis added.)

Plaintiff insists that her pleading and affidavit constituted sufficient evidence from which the court could find that defendant participated in an act within this State that resulted in wrongful injury to plaintiff. Thus, giving the court in personam jurisdiction.

Defendant submitted his own affidavit in support of his motion to dismiss. In his affidavit he denied having taken part in the abduction of the child. His statements read as follows:

1. I am one of the defendants in the above case.

2. I have read the affidavit signed by Judith Diane Fungaroli on January 16, 1980 and filed in connection with this lawsuit. Her allegations in that affidavit which pertain directly to me are untrue.

3. I was not present during the custody case held in Forsyth County Civil District Court on August 7, 1978.

4. I did not take Derek Fungaroli out of the State of North Carolina immediately following the August 7, 1978 hearing or any time thereafter, nor did I ride in any vehicle with Derek Fungaroli when he was taken out of the State of North Carolina, nor did I assist in the transporting of Derek Fungaroli out of the State of North Carolina.

5. I never told Judith Diane Fungaroli that I took Derek Fungaroli out of the State of North Carolina after the child custody hearing on August 7, 1978 or that I participated to any extent in his removal from the State.

Defendant maintains that the only evidence offered by plaintiff with respect to the issue of personal jurisdiction were her statements in her affidavit. These, he asserts, served only to raise a "suspicion, conjecture, guess, possibility, or chance" that her contentions were true. More significantly, defendant takes the position that the evidence presented by plaintiff and defendant was directly in conflict. This conflict in the evidence established an equipoise to the contentions advanced by the opposing parties. Defendant insists that since the record revealed no means by which the conflict in the evidence could be resolved and since the evidence was of equal weight, the trial court erred in ruling in favor of plaintiff, she being the party with the burden of proof.

Under G.S. 1A-1, Rule 52(a)(2), the trial judge need not make findings of fact and conclusions of law when making a decision on a motion...