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Scheinert v. Scheinert

Court of Appeals of North Carolina

July 3, 2018

JEANNE SOUTHALL SCHEINERT, Plaintiff,
v.
HARRY STEVEN SCHEINERT, Defendant.

          Heard in the Court of Appeals 18 April 2018.

          Appeal by plaintiff from judgment entered 25 May 2017 by Judge Robert M. Wilkins in Randolph County No. 03 CVD 508 District Court.

          Lee M. Cecil for plaintiff-appellant.

          Wyatt Early Harris Wheeler LLP, by Arlene M. Zipp, for defendant-appellee.

          DIETZ, JUDGE.

         Plaintiff 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.

         Facts and Procedural History

         Plaintiff 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.

         On 28 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.

         After a hearing, the trial court ordered that the matter be transferred to Caswell County under N.C. Gen. Stat. § 50-3. Ms. Scheinert timely appealed.

         Analysis

         I. Sufficiency of the trial court's findings of fact

         The 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).

         The "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) ...


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