in the Court of Appeals 18 April 2018.
by plaintiff from judgment entered 25 May 2017 by Judge
Robert M. Wilkins in Randolph County No. 03 CVD 508 District
Cecil for plaintiff-appellant.
Early Harris Wheeler LLP, by Arlene M. Zipp, for
Jeanne Southall Scheinert appeals from an order transferring
this alimony proceeding from Randolph County to Caswell
County under N.C. Gen. Stat. § 50-3. As explained below,
the trial court's order does not contain sufficient
findings to support transfer under Section 50-3, although the
record indicates that there is competent evidence to support
a transfer. Accordingly, we vacate the trial court's
order and remand for the trial court, in its discretion, to
enter a new order on the existing record or conduct any
further proceedings that the court deems necessary.
and Procedural History
Jeanne Southall Scheinert and Defendant Harry Steven
Scheinert married in March 1980 and separated in March 2003.
At the time of separation, both parties lived in North
Carolina. After the separation, Ms. Scheinert filed an action
for alimony in Randolph County. The court ordered Mr.
Scheinert to pay $3, 900.00 per month in alimony to Ms.
Scheinert. Ms. Scheinert later moved from North Carolina to
Indiana and Mr. Scheinert moved to Caswell County.
March 2017, Mr. Scheinert filed a motion to transfer the
alimony proceeding from Randolph County to Caswell County
under N.C. Gen. Stat. § 50-3. Section 50-3 provides that
in "any action brought under Chapter 50 for alimony or
divorce filed in a county where the plaintiff resides but the
defendant does not reside, where both parties are residents
of the State of North Carolina, and where the plaintiff
removes from the State and ceases to be a resident, the
action may be removed upon motion of the defendant, for trial
or for any motion in the cause, either before or after
judgment, to the county in which the defendant resides."
N.C. Gen. Stat. § 50-3.
hearing, the trial court ordered that the matter be
transferred to Caswell County under N.C. Gen. Stat. §
50-3. Ms. Scheinert timely appealed.
Sufficiency of the trial court's findings of
central issue in this appeal is whether the trial court's
order contains sufficient findings to trigger the transfer
provision in N.C. Gen. Stat. § 50-3. Our Supreme Court
has held that this provision of Section 50-3 "is clearly
mandatory. When the particular situation to which it applies
is shown to obtain, the trial court has no choice but to
order removal upon proper motion by the defendant."
Gardner v. Gardner, 300 N.C. 715, 718, 268 S.E.2d
468, 470 (1980).
"particular situation" discussed in
Gardner, as applicable to this alimony proceeding,
is this: (1) at the time the alimony action was brought, both
parties resided in North Carolina; (2) at that same time, the
plaintiff resided in the county where the action was brought,
but the defendant resided in a different county; and (3) ...