in the Court of Appeals 9 August 2017.
by defendant from order entered 13 July 2016 by Judge Jeffrey
Evan Noecker in New Hanover County No. 16 CVD 0692 District
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.
Poe Adams & Bernstein LLP, by Jonathan E. Hall, Matthew
H. Mall, and Michael J. Crook, for defendant-appellant.
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
and Procedural Background
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'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
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.
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.
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.
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."
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.
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.
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.
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.
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.
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).
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).
"[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).
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. "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
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).
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).
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).
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
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.
Cases Where No Personal Jurisdiction Existed
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.
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.
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
Id. at 480, 329 S.E.2d at 667.
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).
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.
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).
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.
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
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.
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 ...