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Vann Bradley v. Bradley

Court of Appeals of North Carolina

October 17, 2017


          Heard in the Court of Appeals 9 August 2017.

         Appeal by defendant from order entered 13 July 2016 by Judge Jeffrey Evan Noecker in New Hanover County No. 16 CVD 0692 District Court.

          Rice Law, PLLC, by Mark Spencer Williams, Christine M. Sprow, and Ashton Overholt, and The Law Firm of Mark Hayes, by Mark L. Hayes, for plaintiff-appellee.

          Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall, Matthew H. Mall, and Michael J. Crook, for defendant-appellant.

          DAVIS, Judge.

         During the four-year marriage of Joshua and Jessica Bradley, they lived - at various times - in England, Australia, New Jersey, and New York. However, they were married in North Carolina, and over the course of their marriage Joshua engaged in various acts to maintain his ties with this state. The sole issue in this appeal arising from Jessica's divorce action is whether the trial court correctly concluded that North Carolina possessed personal jurisdiction over Joshua. Because we conclude that Joshua had sufficient minimum contacts with North Carolina such that the exercise of jurisdiction over him by a North Carolina court is consistent with principles of due process, we affirm the trial court's order denying Joshua's motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure.

         Factual and Procedural Background

         Joshua was born and raised in Virginia. Jessica is from North Carolina. The parties first met in Virginia while Jessica was in graduate school and Joshua was in law school. After Jessica completed her schooling in Virginia, she returned to North Carolina to complete her Master's Degree. She was living in North Carolina with her parents (the "Vanns") in Bladen County at the time that she and Joshua married.

         Upon Joshua's graduation from the University of Virginia School of Law in 2009, he was admitted to the New York bar and began working at a law firm in New York City. As part of his employment with the firm, he was sent to work on temporary assignments in various locations. At the time the couple married, Joshua was on a temporary assignment to Sydney, Australia.

         Jessica and Joshua had two wedding ceremonies - both of which took place in Bladen County. The first was a "legal marriage ceremony" in March 2011, and the second was a "formal" ceremony in August 2011. For each ceremony, Joshua flew to North Carolina for a few days and then returned to Australia.

         The parties lived in Australia as a married couple from September 2011 until July 2013. In July 2013, Joshua was recalled by his employer to the firm's New York office. The parties resided in New York for two months and then moved to New Jersey in October 2013 where they leased real property and lived for nine months.

         In May or June 2014, Joshua received another temporary assignment to work in London, England. The parties moved to London and lived there from July 2014 until June 2015. Because they were moving abroad, they decided to store various items of their personal property in a storage unit. Joshua contacted Jessica's father, Jesse Vann ("Mr. Vann"), and asked him to rent a storage unit in Fayetteville, North Carolina for this purpose. Mr. Vann agreed to do so and rented the storage unit in his own name. Joshua proceeded to ship various property - including marital property of the parties - to Mr. Vann, which he placed in the storage unit in Fayetteville. Joshua continuously paid the fees associated with the storage unit for the next 23 months.

         While the parties were living abroad, Joshua arranged for a portion of their mail to be sent to the Vanns' home in North Carolina, and they also received additional mail at his parents' home in Virginia and at his employer's address in New York. Among the items of mail he received at the Vanns' home were certain "boxed shipments."

         In May 2014, the parties learned that Jessica was pregnant. During the pregnancy, the parties had two baby showers in the United States - one in Bladen County, North Carolina and one in Virginia. The parties' child, Eden, was born on 1 February 2015 in London, England.

         In May 2015, the parties agreed that they would live apart for a period of time. The family flew to Virginia where Jessica and Eden began living with Joshua's parents.

         In June 2015, Joshua and Jessica officially decided to separate. Jessica and Eden moved from Joshua's parents' home in Virginia to live with her parents in Bladen County. At the time this action commenced, Jessica was living in North Carolina with Eden, and Joshua was still living in London.

         On 1 March 2016, Jessica filed a complaint in New Hanover County District Court seeking child custody, child support, post-separation support, alimony, equitable distribution, and attorneys' fees. On 1 April 2016, Joshua filed a motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure, asserting that the trial court lacked personal jurisdiction over him. On 14 April 2016, he filed an affidavit in support of his motion. Four days later, he filed an amended motion to dismiss.

         A hearing was held on Joshua's amended motion to dismiss on 15 June 2016 before the Honorable Jeffrey Evan Noecker. Prior to the hearing, Joshua filed a second affidavit. On 13 July 2016, the trial court entered an order denying Joshua's amended motion to dismiss and concluding that it possessed personal jurisdiction over Joshua. Joshua filed a timely notice of appeal.


         I. Appellate Jurisdiction

         As an initial matter, we must determine whether we have appellate jurisdiction to hear Joshua's appeal. See Duval v. OM Hospitality, LLC, 186 N.C.App. 390, 392, 651 S.E.2d 261, 263 (2007) ("[W]hether an appeal is interlocutory presents a jurisdictional issue, and this Court has an obligation to address the issue sua sponte." (citation, quotation marks, and brackets omitted)). "A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Id. (citation omitted). Conversely, an order or judgment is interlocutory if it does not settle all of the issues in the case but rather "directs some further proceeding preliminary to the final decree." Heavner v. Heavner, 73 N.C.App. 331, 332, 326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d 610 (1985).

         "Generally, there is no right of immediate appeal from interlocutory orders and judgments." Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., 228 N.C.App. 314, 317, 745 S.E.2d 69, 72 (2013) (citation and quotation marks omitted). The prohibition against interlocutory appeals "prevents fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts." Russell v. State Farm Ins. Co., 136 N.C.App. 798, 800, 526 S.E.2d 494, 496 (2000) (citation and brackets omitted).

         However, "[a]ny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant . . . ." N.C. Gen. Stat. § 1-277(b) (2015). Thus, Joshua has a right of immediate appeal. See Meherrin Indian Tribe v. Lewis, 197 N.C.App. 380, 384, 677 S.E.2d 203, 207 (2009) (holding that " N.C. Gen. Stat. § 1-277(b) allows . . . for an immediate appeal of the denial of a motion to dismiss based on personal jurisdiction"), disc. review denied, 363 N.C. 806, 690 S.E.2d 705 (2010).

         II. Personal Jurisdiction

         Joshua contends that the trial court erred in denying his motion to dismiss under Rule 12(b)(2) as to Jessica's claims for child support, post-separation support, alimony, and equitable distribution.[1] "The standard of review of an order determining personal jurisdiction is whether the findings of fact by the trial court are supported by competent evidence in the record." Bell v. Mozley, 216 N.C.App. 540, 543, 716 S.E.2d 868, 871 (2011) (citation, quotation marks, and brackets omitted), disc. review denied, 365 N.C. 574, 724 S.E.2d 529 (2012). We have held that "[t]he trial court's determination regarding the existence of grounds for personal jurisdiction is a question of fact." Eluhu v. Rosenhaus, 159 N.C.App. 355, 357, 583 S.E.2d 707, 710 (2003), affd per curiam, 358 N.C. 372, 595 S.E.2d 146 (2004).

The determination of whether the trial court can properly exercise personal jurisdiction over a non-resident defendant is a two-part inquiry. First, the North Carolina long-arm statute must permit the exercise of personal jurisdiction. Second, the exercise of personal jurisdiction must comport with the due process clause of the Fourteenth Amendment of the United States Constitution.

Filmar Racing, Inc. v. Stewart, 141 N.C.App. 668, 671, 541 S.E.2d 733, 736 (2001) (internal citations and quotation marks omitted).[2]

         "In order to determine whether the exercise of personal jurisdiction comports with due process, the trial court must evaluate whether the defendant has certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Eluhu, 159 N.C.App. at 358, 583 S.E.2d at 710 (2003) (citation, quotation marks, and brackets omitted). "The relationship between the defendant and the forum state must be such that the defendant should reasonably anticipate being haled into a North Carolina court." Bell, 216 N.C.App. at 544, 716 S.E.2d at 872 (citation and quotation marks omitted).

Factors for determining existence of minimum contacts include (1) quantity of the contacts, (2) nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) convenience to the parties.

Bruggeman v. Meditrust Acquisition Co., 138 N.C.App. 612, 617, 532 S.E.2d 215, 219 (citation and quotation marks omitted), appeal dismissed and disc. review denied, 353 N.C. 261, 546 S.E.2d 90 (2000).

         "The Court must also weigh and consider the interests of and fairness to the parties involved in the litigation." Sherlock v. Sherlock, 143 N.C.App. 300, 304, 545 S.E.2d 757, 761 (2001) (citation omitted). However, as the United States Supreme Court has stated:

[T]he Due Process Clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 62 L.Ed.2d 490, 499- 500 (1980).

         As an initial matter, we note that the United States Supreme Court has held the mere fact that a defendant's wedding ceremony took place in a particular state does not - by itself - establish personal jurisdiction over him by the courts of that state. See Kulko v. Superior Court of Cal., 436 U.S. 84, 93, 56 L.Ed.2d 132, 142 (1978) ("[W]here two New York domiciliaries, for reasons of convenience, marry in the State of California and thereafter spend their entire married life in New York, the fact of their California marriage by itself cannot support a California court's exercise of jurisdiction over a spouse who remains a New York resident . . . ."); see also Southern v. Southern, 43 N.C.App. 159, 163, 258 S.E.2d 422, 425 (1979) (citing Kulko for proposition that England lacked personal jurisdiction over defendant despite fact that parties were married in London because there was "no indication in the record that England was the parties' matrimonial domicile or that there were any contacts other than the marriage itself sufficient to justify imposing upon defendant the burden of defending suit in England").

         Therefore, in order for North Carolina's courts to exercise jurisdiction over Joshua, he must have had sufficient contacts with North Carolina to satisfy due process standards. Before analyzing the trial court's findings in its 13 July 2016 order, we find it instructive to review prior case law from our appellate courts on this subject.

         A. Cases Where No Personal Jurisdiction Existed

         In Miller v. Kite, 313 N.C. 474, 329 S.E.2d 663 (1985), the parties were married in Illinois, but after four years of marriage they separated. The plaintiff took custody of their young daughter and moved to North Carolina. For ten years, the defendant mailed child support payments to the plaintiff and visited the child in North Carolina. Id. at 478, 329 S.E.2d at 665. When the defendant stopped payments after ten years, the plaintiff sued him for child support in North Carolina while he was living in Tokyo, Japan. The defendant moved to dismiss the complaint, arguing that the court did not have personal jurisdiction over him. The trial court denied the motion. Id.

         On appeal, our Supreme Court held that the trial court had erred in denying the defendant's motion to dismiss. Id. at 478, 329 S.E.2d at 666. The Court ruled that "the defendant ha[d] engaged in no acts with respect to North Carolina by which he ha[d] purposefully availed himself of the benefits, protections and privileges of the laws of this State." Id. at 480-81, 329 S.E.2d at 667.

In the instant case the child's presence in North Carolina was not caused by the defendant's acquiescence. Instead, it was solely the result of the plaintiffs decision as the custodial parent to live here with the child. As previously noted, the Supreme Court has expressly stated that unilateral acts by the party claiming a relationship with a non-resident defendant may not, without more, satisfy due process requirements. Hanson v. Denckla, 357 U.S. 235, 253 (1958). We conclude that Kulko compels a finding that this defendant did not purposefully avail himself of the benefits and protections of the laws of this State. A contrary conclusion would discourage voluntary child custody agreements and subject a non-custodial parent to suit in any jurisdiction where the custodial parent chose to reside. See Kulko v. Superior Court of California, 436 U.S. 84, 93 (1978).

Id. at 479, 329 S.E.2d at 666.

         The Court also determined that the defendant's six visits over ten years to North Carolina to visit the child were insufficient to confer jurisdiction over him. Id. In comparing the case to Kulko, the Court observed that

[t]he father's visits to California in Kulko were fewer and more distant in time from the litigation than were the visits in this case. The visits by this defendant to North Carolina, however, were no less temporary than those in Kulko and were so unrelated to this action that he could not have reasonably anticipated being subjected to suit here.

Id. at 480, 329 S.E.2d at 667.

         Finally, the Supreme Court acknowledged that "the presence of the child and one parent in North Carolina might make this State the most convenient forum for the action." Id. However, the Court ruled that this fact alone "does not confer personal jurisdiction over a non-resident defendant." Id. (citation omitted). The Court stated that it was "mindful that North Carolina has an important interest in ensuring that non-resident parents fulfill their support obligations to their children living here[, ]" but that "[a]bsent the constitutionally required minimum contacts . . . this interest will not suffice to make North Carolina a proper forum in which to require the defendant to defend the action . . . ." Id. (citation omitted).

         In Carroll v. Carroll, 88 N.C.App. 453, 363 S.E.2d 872 (1988), the plaintiff and defendant were married in Washington and owned real and personal property in that state. After the parties separated, the plaintiff moved to North Carolina. Id. at 455, 363 S.E.2d at 874. The plaintiff subsequently filed a complaint in North Carolina for divorce, child custody, child support, and equitable distribution. Id. at 453, 363 S.E.2d at 872-73. In determining that it possessed personal jurisdiction over the defendant, the trial court took into consideration the fact that "certain property of the parties was located in North Carolina." Id. at 455, 363 S.E.2d at 874.

         On appeal, we held that the trial court lacked personal jurisdiction over the defendant because he had never lived in North Carolina and the record did not specify whether he had consented to his personal property being brought into North Carolina. Id. at 456, 363 S.E.2d at 874. In so holding, we stated that

[t]he fact that there exists some personal property in North Carolina in which the defendant may have an interest because of the equitable distribution statutes is not alone sufficient to establish jurisdiction over the defendant or his property. If there was evidence the defendant brought the property into North Carolina or consented to the placement of property in North Carolina, this would be some evidence of contacts with the forum State, the defendant and the litigation. This however, would not itself necessarily be decisive concerning the issue of jurisdiction.

Id. (internal citations omitted).

         Tompkins v. Tompkins, 98 N.C.App. 299, 390 S.E.2d 766 (1990), involved a suit by the plaintiff against the defendant in North Carolina seeking alimony and equitable distribution, alleging that the defendant had committed adultery during the marriage. The defendant filed a motion to dismiss for lack of personal jurisdiction, asserting that the complaint contained no evidence that the parties were married in North Carolina, that he was living in the state, or that the misconduct had occurred in the state. Id. at 302, 390 S.E.2d at 768. Moreover, the defendant argued that he had

left the State of North Carolina more than three and one-half years prior to the commencement of this action, had resided in South Carolina since that time, owned no property in North Carolina, conducted no business in this State, and had not invoked the protection of North Carolina law for any purpose or reason since leaving this State.

Id. at 300, 390 S.E.2d at 767. The plaintiff, in turn, contended that because the defendant had "abandoned" her in North Carolina while they were legally married, he had sufficient contacts with the state. Id. at 304, 390 S.E.2d at 769.

         The trial court dismissed the plaintiffs complaint, and we affirmed, stating that

plaintiffs allegations of defendant's marital misconduct, absent any allegations going to a nexus between such misconduct and this State, are simply insufficient to permit the reasonable inference that personal jurisdiction over defendant could properly be acquired in this case. . . . [T]he mere fact that the marriage is still in existence at the time an action for alimony is initiated cannot of itself constitute sufficient contacts to establish personal jurisdiction over a foreign defendant. Were it otherwise, this State could exercise personal jurisdiction over a foreign defendant solely by virtue of a plaintiffs unilateral act of moving to North Carolina prior to the termination of the marriage. This is plainly impermissible.

Id. at 304, 390 S.E.2d at 769-70 (citations omitted).

         In Shamley v. Shamley, 117 N.C. App. 175, 455 S.E.2d 435 (1994), the plaintiff and defendant were married in New York. After twenty years of living in New Jersey, the plaintiff began looking to buy houses, and eventually he bought a home in North Carolina. Id. at 176-77, 455 S.E.2d at 436. The defendant accompanied him to North Carolina, but she did not take part in purchasing the house. Id. at 181, 455 S.E.2d at 438. While she was in North Carolina during another visit, the defendant purchased an automobile, which she later had titled in New Jersey. Id. Upon the parties' separation, the plaintiff sued for absolute divorce and equitable distribution in North Carolina, and the defendant brought a similar suit in New Jersey. Id. at 177, 455 S.E.2d at 436. The trial court determined that it did not have personal jurisdiction over the defendant and dismissed the case. Id. at 177-78, 455 S.E.2d at 436.

         On appeal, we affirmed, holding that the defendant's "only voluntary contacts with North Carolina were during a brief visit in which she looked at houses with [plaintiff] and another visit in which she purchased an automobile . . . ." Id. at 182, 455 S.E.2d at 439. We concluded that she "could not, on the basis of ...

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