               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-646

                               Filed: 18 February 2020

Surry County, No. 18 CVD 1209

KIMBERLY DAWN POINDEXTER, Plaintiff,

              v.

CARLTON D. EVERHART, II, Defendant.


        Appeal by plaintiff from order entered 12 April 2019 by Judge Thomas B.

Langan in Surry County District Court. Heard in the Court of Appeals 21 January

2020.


        Law Offices of Mark E. Sullivan, P.A., by Mark E. Sullivan and Kristopher J.
        Hilscher, for plaintiff-appellant.

        Lewis, Deese, Nance & Ditmore, LLP, by Renny W. Deese, for defendant-
        appellee.


        TYSON, Judge.


        Kimberly Dawn Poindexter (“Plaintiff”) appeals from an order entered

granting Carlton D. Everhart, II’s (“Defendant”) motion to dismiss pursuant to Rule

12(b)(1) of the North Carolina Rules of Civil Procedure. We reverse and remand.

                                   I. Background

        Plaintiff and Defendant were married on 14 May 1983 and separated on 9

August 2004.       The parties entered into a Separation Agreement and Property

Settlement (“Agreement”) in Surry County on 17 November 2005.
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                                  Opinion of the Court



      Plaintiff and Defendant agreed to divide their marital property per the

provisions in the Agreement. The Agreement designates the court in Surry County

as the forum for issues arising out of the Agreement, North Carolina law as the choice

of law, and provides under “Situs and Jurisdiction”:

             This Agreement shall be construed and governed in
             accordance with the laws of the State of North Carolina
             and each party agrees and does hereby consent and submit
             himself/herself to the jurisdiction of the General Court of
             Justice of Surry County of the State of North Carolina for
             any suits or any other legal action based upon or arising
             out of or in connection with this Agreement.

      The Agreement also provides Plaintiff is to obtain a spousal share of

Defendant’s military pension. The Agreement under “Military Retirement” provides:

             The husband is currently a member of the United States
             Armed Forces. The parties agree and desire that his
             military retirement be divided using the following formula
             to determine the wife’s entitlement. The former spouse
             (wife) is awarded a percentage of the member’s disposable
             military retired pay, to be computed by multiplying 43.5%
             times a fraction, the numerator of which is 245 months of
             marriage during the member’s creditable military serve
             (sic), divided by the member’s total number of months of
             creditable military service.

             The husband shall be required to select the survivor benefit
             plan. In the event the wife remarries at any time prior to
             the husband’s death or retirement, she shall lose the right
             to the survivor benefit plan and shall, immediately after
             becoming married, file a document with the appropriate
             authorities, waiving any future SBP claim. If the wife fails
             to file such document with the appropriate authority, then
             the husband may file a copy of her marriage certificate or
             any other document that is satisfactory proof to DFAS, at


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             such time the Wife shall lose her survivor benefits.

             There will be no further claims of future retirements or no
             future monetary claims against husband.

      The Agreement also provides under “Enforcement of Agreement”:

             The parties agree that, in the event there is a non-
             compliance with any of the provisions of this Agreement,
             the complying party may initiate an action in any court
             where jurisdiction over the parties may be obtained, asking
             for specific performance of the terms and/or conditions so
             sought to be enforced. The non-complying party shall be
             responsible to the complying party for any and all expenses
             incurred by the complying party in the attempt to obtain
             specific performance, including attorney’s fees.       Any
             amount so awarded shall be in the sole discretion of the
             presiding judge and the award shall be made without
             regard to the financial ability of either party to pay, but
             rather shall be based upon the fees and expenses
             determined by the court to be reasonable and incurred by
             the complying party. It is the intent of this paragraph to
             induce both Husband and Wife to comply with the terms of
             this Agreement to the end that no litigation as between the
             parties is necessary in the areas dealt with by this
             Agreement. In the event of litigation, it is the further
             intent to specifically provide that the non-complying party
             shall pay all reasonable fees and costs that either party
             may incur. The right to specific performance of this
             Agreement shall be in addition to and not in substitution
             for all other rights and remedies either party may have at
             law or in equity arising by reason of any breach of the
             Agreement by the non-complying party.

      After the Agreement was signed on 17 November 2005, Plaintiff and Defendant

were divorced the following month on 22 December 2005 in Oklahoma. Defendant

herein sought and was the plaintiff in the divorce action, and Plaintiff herein did not



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                                   Opinion of the Court



contest the divorce.    The Oklahoma divorce decree states: “The property owned by

the parties shall be divided according to the orders issued in the State of North

Carolina.” Both parties signed and acknowledged the provisions contained within

the divorce decree. Plaintiff is a resident of North Carolina. Defendant is a resident

of Texas.

      Defendant sued Plaintiff on 23 January 2006 for specific performance of the

Agreement in Surry County, North Carolina. In Defendant’s complaint, he asserted

the “Enforcement of Agreement” provisions of the Agreement to support his claim for

specific performance.

      Plaintiff’s attorney drafted a military pension division order for Defendant to

execute. Defendant asserted it did not reflect the terms of the Agreement and refused

to execute Plaintiff’s proposed order.

      Plaintiff initiated the present action by filing a complaint in the Surry County

District Court on 30 August 2018.          Without answering Plaintiff’s complaint,

Defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant

to North Carolina Rules of Civil Procedure 12(b)(1) on 1 October 2018. The trial court

granted Defendant’s Rule 12(b)(1) motion and dismissed Plaintiff’s complaint for lack

of subject matter jurisdiction. Plaintiff filed notice of appeal on 13 May 2019.

                                    II. Jurisdiction

      The timeliness of Plaintiff’s 13 May 2019 notice of appeal requires analysis.



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No information in the record shows when Plaintiff was served with the trial court’s

judgment. Our Court has held: “where . . . there is no certificate of service in the

record showing when appellant was served with the trial court judgment, appellee

must show that appellant received actual notice of the judgment more than thirty

days before filing notice of appeal in order to warrant dismissal of the appeal.” Brown

v. Swarn, 257 N.C. App. 418, 422, 810 S.E.2d 237, 240 (2018) (alteration in original).

      Applying the reasoning in Brown, unless the appellee contests the notice of

appeal as untimely and proffers actual proof of service, this Court may not dismiss

the appeal. Id. Defendant has not argued Plaintiff’s 13 May 2019 notice of appeal is

untimely nor proffered proof of Plaintiff’s receipt of actual notice of the 12 April 2019

order to dismiss her appeal.

      Plaintiff’s notice of appeal from that order is deemed timely filed. See id. This

Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 1-277 and 7A-27(b)(2)

(2019).

                                       III. Issue

      Plaintiff argues the trial court erred in granting Defendant’s Rule 12(b)(1)

motion and dismissing Plaintiff’s complaint for lack of subject matter jurisdiction.

                         IV. Defendant’s Rule 12(b)(1) Motion

                                  A. Standard of Review

      “Whether a trial court has subject-matter jurisdiction is a question of law,



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reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d

590, 592 (2010).

                            B. Enforceability of Agreement

      Plaintiff and Defendant entered into the Agreement on 17 November 2005.

According to its express terms, the Agreement was not incorporated into the 22

December 2005 Oklahoma divorce decree.              However, the Oklahoma decree

specifically addressed the property division: “The property owned by the parties shall

be divided according to the orders issued in the State of North Carolina.”

             These agreements are favored in this state, as they serve
             the salutary purpose of enabling marital partners to come
             to a mutually acceptable settlement of their financial
             affairs. A valid separation agreement that waives rights to
             equitable distribution will be honored by the courts and
             will be binding upon the parties.

Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987) (citations omitted).

      “A marital separation agreement is generally subject to the same rules of law

with respect to its enforcement as any other contract. The equitable remedy of

specific enforcement of a contract is available only when the plaintiff can establish

that an adequate remedy at law does not exist.” Moore v. Moore, 297 N.C. 14, 16, 252

S.E.2d 735, 737 (1979) (citations omitted).

      Our Court has long held separation agreements are enforceable as contracts,

even if the separation agreements create rights and duties not expressly provided for

by statute. Blount v. Blount, 72 N.C. App. 193, 195, 323 S.E.2d 738, 740 (1984).


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“Where the terms are plain and explicit the court will determine the legal effect of a

contract and enforce it as written by the parties.” Church v. Hancock, 261 N.C. 764,

766, 136 S.E.2d 81, 83 (1964) (citations omitted).

      Parties retain the right and ability, and are encouraged to resolve and

privately settle their disputes, in a written agreement for payment and performance.

The Agreement before us expresses: “It is the intent of this [Enforcement Section] to

induce both Husband and Wife to comply with the terms of this Agreement to the end

that no litigation as between the parties is necessary in the areas dealt with by this

Agreement.” While expressing the intent and hope that no further “litigation as

between the parties is necessary,” the Agreement is not self-executing. Plaintiff

carries the burden to show an enforceable contract, breach thereof, and damages.

                                  C. Military Pension

      Division of a military service member’s pension and payment thereof to a

former spouse is allowed, subject to 10 U.S.C. § 1408(c):

             Authority for court to treat retired pay as property of the
             member and spouse.
                  (1) Subject to the limitations of this section, a court
                  may treat disposable retired pay payable to a
                  member for pay periods beginning after June 25,
                  1981, either as property solely of the member or as
                  property of the member and his spouse in accordance
                  with the law of the jurisdiction of such court. A court
                  may not treat retired pay as property in any
                  proceeding to divide or partition any amount of
                  retired pay of a member as the property of the
                  member and the member’s spouse or former spouse


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                                  Opinion of the Court



                   if a final decree of divorce, dissolution, annulment,
                   or legal separation (including a court ordered,
                   ratified, or approved property settlement incident to
                   such decree) affecting the member and the member’s
                   spouse or former spouse (A) was issued before June
                   25, 1981, and (B) did not treat (or reserve
                   jurisdiction to treat) any amount of retired pay of the
                   member as property of the member and the
                   member’s spouse or former spouse.

                    ....

                   (4) A court may not treat the disposable retired pay
                   of a member in the manner described in paragraph
                   (1) unless the court has jurisdiction over the member
                   by reason of (A) his residence, other than because of
                   military assignment, in the territorial jurisdiction of
                   the court, (B) his domicile in the territorial
                   jurisdiction of the court, or (C) his consent to the
                   jurisdiction of the court.

10 U.S.C. § 1408 (2017) (emphasis supplied).

      Subject to the provisions of 10 U.S.C. § 1408, state courts may treat a military

service member’s pension as the property of the service member and their spouse, in

accordance with the laws of the state. Defendant asserts 10 U.S.C. § 1408(c)(4)

articulates requirements for subject matter jurisdiction.

      In Judkins v. Judkins, this Court examined 10 U.S.C. § 1408(c)(4) to determine

whether this federal code provision establishes and requires personal or subject

matter jurisdiction over the claim. Judkins v. Judkins, 113 N.C. App. 734, 736-37,

441 S.E.2d 139, 140 (1994). The defendant in Judkins, who had made a general

appearance in the courts of North Carolina, argued that the federal statute, 10 U.S.C.


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                                  Opinion of the Court



§ 1408(c)(4), limited the state court’s subject matter jurisdiction. Id. at 737, 441

S.E.2d at 140. We held: “We read this provision as establishing the requirements for

personal jurisdiction and proceed to determine whether the trial court properly

obtained in personam jurisdiction over defendant as required by § 1408(c)(4).” Id.

      Both the Supreme Court of North Carolina and this Court have long recognized

that “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a

different case, a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373,

384, 379 S.E.2d 30, 37 (1989). This Court recently discussed In re Civil Penalty in

State v. Gonzalez and held:

             In re Civil Penalty stands for the proposition that, where a
             panel of this Court has decided a legal issue, future panels
             are bound to follow that precedent. This is so even if the
             previous panel’s decision involved narrowing or
             distinguishing an earlier controlling precedent—even one
             from the Supreme Court—as was the case in In re Civil
             Penalty. Importantly, In re Civil Penalty does not authorize
             panels to overrule existing precedent on the basis that it is
             inconsistent with earlier decisions of this Court.

State v. Gonzalez, __ N.C. App. __, __, 823 S.E.2d 886, 888-89 (2019).

      We are without authority to overturn the ruling of a prior panel of this Court

on the same issue. See In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37. Prior

precedent of this Court has interpreted 10 U.S.C. § 1408(c)(4) as referencing




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requirements for in personam and not subject matter jurisdiction. Judkins, 113 N.C.

App. at 736-37, 441 S.E.2d at 140.

      Subject matter jurisdiction is conferred upon our state’s courts by North

Carolina’s Constitution and by statute. N.C. Gen. Stat. § 7A-244 confers subject

matter jurisdiction over domestic actions in the district court:

             The district court division is the proper division without
             regard to the amount in controversy, for the trial of civil
             actions and proceedings for annulment, divorce, equitable
             distribution of property, alimony, child support, child
             custody and the enforcement of separation or property
             settlement agreements between spouses, or recovery for the
             breach thereof.

N.C. Gen. Stat. § 7A-244 (2019) (emphasis supplied).

      N.C. Gen. Stat. § 7A-244, not the federal code provision, provides the district

court in North Carolina with subject matter jurisdiction over this Agreement. No

supremacy nor preemption issue exists between the state statute and the federal

code. Defendant’s consent to personal jurisdiction in North Carolina is expressly

contained in the Agreement and the divorce decree. Defendant also stipulated that

North Carolina courts possess personal jurisdiction over him, which satisfies the

personal jurisdictional consent requirements set forth in 10 U.S.C. § 1408(c)(4).

      This action is not to determine whether there will be a division of “retired pay

payable to a [service] member,” which the parties’ consented to in the Agreement. 10

U.S.C. § 1408. Plaintiff, a resident of North Carolina and a party to the Agreement,



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seeks enforcement for breach of an asserted prior mutually agreed-upon division,

which N.C. Gen. Stat. § 7A-244 confers in the district court of North Carolina.

      Defendant consented to in personam jurisdiction in North Carolina. The

parties contest how, when, and to what extent the division of “retired pay payable to

a [service] member” is to occur and whether the terms in the Agreement are

ambiguous. Id. As such, the district court possesses subject matter jurisdiction over

the Agreement, personal jurisdiction over the parties, and is a proper forum to

adjudicate Plaintiff’s and Defendant’s disputed claims. N.C. Gen. Stat. § 7A-244. The

trial court’s grant of Defendant’s Rule 12(b)(1) motion was error.

                                    V. Conclusion

      N.C. Gen. Stat. § 7A-244 confers subject matter jurisdiction over the

Agreement in the North Carolina district court. 10 U.S.C. § 1408(c)(4) requires

Defendant’s consent and, based upon Defendant’s consent in the Agreement and

stipulation, confers personal jurisdiction in North Carolina to resolve disputes over

the Agreement’s allocation of Defendant’s service member’s retirement with Plaintiff,

a former spouse. See Judkins, 113 N.C. App. at 736-37, 441 S.E.2d at 140.

      The trial court’s grant of Defendant’s motion to dismiss Plaintiff’s pleading for

lack of subject matter jurisdiction is reversed. North Carolina’s courts possess subject

matter jurisdiction over the Agreement, possess personal jurisdiction over the parties

by residence of the Plaintiff and by consent of the Defendant. North Carolina is a



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proper forum to resolve any disputed issues in the Agreement. The case is remanded

for further proceedings, which are not inconsistent with this opinion. It is so ordered.

      REVERSED AND REMANDED.

      Judges DIETZ and INMAN concur.




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