subject: North Carolina Child Custody Divorce Personal Jurisdiction Lawyers Attorneys [print this page] TERESA H. SHINGLEDECKER, Plaintiff v. TERRY ALLAN SHINGLEDECKER, Defendant
COURT OF APPEALS OF NORTH CAROLINA
March 13, 1991, Heard in the Court of Appeals
August 20, 1991, Filed
Plaintiff and defendant were married on 28 January 1989 in Jackson County, North Carolina. Thereafter, the parties moved to the State of Florida on a temporary basis, although the family home remained in the State of North Carolina. In January 1990, plaintiff instituted this action seeking a divorce from bed and board and alleging, as grounds therefor, constructive abandonment, cruel and barbarous treatment and indignities. Plaintiff also requested both temporary and permanent child custody and child support. Defendant filed a pre-answer motions to dismiss plaintiff's complaint based upon North Carolina Rules of Civil Procedure 12(b)(2) and 12(b)(6), lack of personal jurisdiction and failure to state a claim upon which relief could be granted. On 26 April 1990, Judge Steven J. Bryant entered a judgment granting plaintiff a divorce from bed and board, permanent child custody and child support. From the Order denying his motions to dismiss, defendant appealed.
Issue:
Whether the trial court erred in denying defendant's motion to dismiss?
Whether the trial court erred in refusing to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted?
Discussion:
1) Whether the trial court erred in denying defendant's motion to dismiss?
The Court held that the trial court specifically found as fact that "the State of North Carolina was the home state of the child at the time of the commencement of this proceeding" Section 50A-3(a)(1) makes it clear that the existence of such a fact is all that is required in order to invoke a court's jurisdiction to make child custody determinations. Moreover, personal jurisdiction over the nonresident is not required under the UCCJA. We conclude that the trial court properly exercised jurisdiction in making the child custody order.
2) Whether the trial court erred in refusing to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted?
The Court finds that "following the enactment of the Rules of Civil Procedure in 1967, this court specifically addressed the propriety of appealing motions of this type. There, we fashioned the following rule of procedural law: Where an unsuccessful motion to dismiss is grounded on an alleged insufficiency of the facts to state a claim for relief, and the case thereupon proceeds to judgment on the merits, the unsuccessful movant may not on an appeal from the final judgment seek review of the denial of the motion to dismiss. Inasmuch as we find Concrete Service Corp. to be controlling on this issue, this court concludes that defendant's motion to dismiss is not properly presented by this appeal."
For the reasons discussed above, this court affirmed the lower court Judgment.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Child Custody Divorce Personal Jurisdiction Lawyers Attorneys
By: Atchuthan Sriskandarajah
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