              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA16-641

                             Filed: 21 November 2017

Caswell County, No. 15 CVD 312

WILLIAM RUSSELL JOHNSTON, Plaintiff,

             v.

ALLYSON SCOTT JOHNSTON, Defendant.


      Appeal by defendant from order entered 20 January 2016 by Judge Lloyd

Michael Gentry in District Court, Caswell County. Heard in the Court of Appeals 9

January 2017.


      Manning, Fulton, & Skinner, by Michael S. Harrell, for plaintiff-appellee.

      Tharrington, Smith, LLP, by Steve Mansbery, for defendant-appellant.


      STROUD, Judge.


      Defendant Allyson Scott Johnston appeals an order denying her motion to

dismiss the case filed by plaintiff in Caswell County and to have it transferred to

Wake County. Because defendant’s custody claim was filed in Wake County before

plaintiff filed his claim in Caswell County, the district court in Caswell County did

not have subject matter jurisdiction over the custody claim. We reverse the order

denying defendant’s motion to dismiss, remand for consideration of defendant’s

motion for sanctions, and vacate the temporary visitation and custody orders.

                                 I.       Background
                               JOHNSTON V. JOHNSTON

                                  Opinion of the Court



      On 4 April 2009, plaintiff William Russell Johnston (“Husband”) and defendant

Allyson Scott Johnston (“Wife”) were married. The parties had two children, one in

2012 and one in 2014. The parties separated, although the exact date is in dispute,

and on 15 September 2015, Husband filed a complaint in Caswell County against

Wife for custody, divorce from bed and board, and equitable distribution, alleging the

parties had separated on 2 August 2015. On 22 September 2015, the complaint was

served on Wife. Thereafter, on 1 October 2015, Husband voluntarily dismissed his

Caswell County complaint without prejudice.

      On 8 October 2015, Wife filed a complaint against Husband in Wake County

for custody, child support, post-separation support, alimony, and attorney fees. A

temporary custody hearing was set in Wake County for 15 December 2015. Husband

was not served with the Wake County summons and complaint on the sheriff’s initial

attempts, and he later admitted that he intentionally avoided service. On 13 October

2015, Husband filed a second complaint against Wife in Caswell County for custody,

divorce from bed and board, and equitable distribution; the complaint fails to note

the active suit in Wake County, although husband was aware that it had been filed.

      On 19 October 2015, Husband filed a motion in Caswell County requesting

entry of an order for temporary child custody and visitation. On 2 November 2015,

Wife filed a motion to dismiss the Caswell County case for lack of jurisdiction because

of her prior pending action in Wake County. Also on 2 November 2015, the district



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                                  Opinion of the Court



court heard Husband’s request for temporary custody, although Husband was not

present and his attorney admitted he did not come to the hearing he had scheduled

for temporary custody because he was avoiding service in the Wake County case:

             MS. RAMSEY: His client’s not even here. His client is
             asking for temporary custody of the children, and he’s not
             even here. The reason he’s not here is because he knows,
             if he comes in here, he’s going to be served with this Wake
             County action. He’s avoiding service.

             THE COURT: Well, let me say this. Mr. Bradsher, you need
             to get your client available for service so –

             MR. BRADSHER: Your Honor, I don’t doubt it. But there’s
             nothing that says he has to make himself available. And
             we’re prepared to go forward today . . . . We have everybody
             here.

             ....

             MR. BRADSHER: Your Honor, I mean, this is a civil
             matter.

             THE COURT: Okay. Okay. As a directive from the bench,
             make sure your client is available for service on this -- on
             her -- on the Wake County case --

             MR. BRADSHER: I don’t know that I have the ability to do
             --

             THE COURT: -- this week. Somebody in this room can get
             Russell Johnston into the Sheriff’s Office to get served this
             week. Well, maybe I -- I'm just telling you he needs to get
             -- go ahead and get served.

      Despite Husband’s absence and the lack of any apparent emergency or need

for an immediate order, the district court entered a temporary custody order granting


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                                    JOHNSTON V. JOHNSTON

                                       Opinion of the Court



Husband visitation on weekends and holidays and set Wife’s motion to dismiss for

hearing on 18 December 2015.

       On 6 November 2015, Husband was served with the summons and complaint

in the Wake County action. On 30 November 2015, Husband filed a motion to amend

his complaint alleging that he had voluntarily dismissed his prior Caswell County

complaint based upon Wife’s indication that she wanted to reconcile but he later

learned this was not true. On 18 December 2015, Husband responded to Wife’s

motion to dismiss the action in Caswell County, arguing Caswell County was the

proper venue because Wife was served in the Caswell County action before he was

served in the Wake County action and alleging that Wife “tricked” him into

dismissing his first Caswell County action so that she could file in Wake County.

       Also on 18 December 2015, the district court heard Wife’s motion to dismiss.

The parties agreed that the equitable distribution and divorce from bed and board

claims were properly in Caswell County and the post-separation support and alimony

claims were only in Wake County.1 The only claim for which jurisdiction was at issue

was child custody; Husband argued the case was properly in Caswell County and

Wife argued Caswell County had no jurisdiction because the Wake County action

had been filed first. Wife’s counsel directed the district court to the applicable laws



       1 The Wake County complaint included claims for child custody, post-separation support, and
alimony claims; the Caswell county complaint included claims for child custody, divorce from bed and
board, and equitable distribution.

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                              JOHNSTON V. JOHNSTON

                                   Opinion of the Court



in Chapter 50 of the North Carolina General Statutes. In response to the district

court’s focus on where the children had lived for the six months next preceding the

filing of the action, Wife’s counsel pointed out that the UCCJEA, North Carolina

General Statute, Chapter 50A, was not applicable to this case since both parties are

in North Carolina. On 4 January 2016, in Wake County, Husband filed a motion to

dismiss the Wake County action or alternatively for a change of venue to Caswell

County.

      On 13 January 2016, the district court returned to complete the hearing on the

motion to dismiss and to enter an additional order addressing temporary custody.

The district court did not hear any evidence. Wife’s counsel requested a finding of

fact that the district court was basing its temporary custody decision on absolutely

no evidence, and the district court acknowledged that the order was “based solely on

the pleadings and arguments of counsel.” The court’s concern was “whether I think

I’ve got jurisdiction over the child custody.” Ultimately, the district court denied

Wife’s motion to dismiss, and on 20 January 2016 entered an order denying Wife’s

motion to dismiss and an order granting joint temporary custody to Husband and

Wife with an alternating week custodial schedule. Wife appeals the order denying

her motion to dismiss.

                             II.      Motion to Dismiss

      Wife makes two arguments on appeal. We first note that an order which denies



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                                   Opinion of the Court



a motion to dismiss on the ground of a prior pending action, while interlocutory, is

immediately appealable. See Gillikin v. Pierce, 98 N.C. App. 484, 486, 391 S.E.2d

198, 199 (1990). Wife’s first argument challenges many of the district court’s findings

of fact as (1) not being supported by competent evidence since there was no evidence,

testimonial or documentary, presented at the hearing, or (2) actually being

conclusions of law and not findings of fact. As the order notes, the district court

considered only the pleadings and arguments of counsel, so there was no evidence

upon which to base findings regarding custody or visitation. But Wife’s second

argument involves the crucial matter of subject matter jurisdiction to enter any

custody order, so we will address this issue first.

      Wife argues that because she filed her custody complaint first in Wake County,

Wake County had jurisdiction over the custody matter, and Caswell County did not.

Wife specifically contends that “the trial court erred by concluding as a matter of law

that i[t] has jurisdiction over the subject matter and of the parties to this action in

conclusion of law 1 and by denying defendant-appellant’s motion to dismiss.” We

review de novo the denial of Wife’s motion to dismiss on the basis that the district

court had subject matter jurisdiction. See Shoaf v. Shoaf, 219 N.C. App. 471, 474–

75, 727 S.E.2d 301, 304 (2012) (“As a result of the fact that Defendant’s dismissal

motions raise issues of law, the trial court’s refusal to dismiss Plaintiffs’ complaint is

subject to d[e] novo review.”)



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                               JOHNSTON V. JOHNSTON

                                  Opinion of the Court



      The relevant portion of the district court’s order challenged on appeal and its

decree, are as follows:

             1.     The Court has jurisdiction of the subject matter and
             of the parties to this action.

             2.     The findings of fact above are hereby incorporated
             by reference as if restated.

             Ordered, adjudged, and decreed as follows:

             1.     Coble v. Coble, 229 N.C. 81, is the controlling case on
             the issue of Defendant Mother’s Motion to Dismiss.

             2.    Benson v. Benson, 39 N.C. App. 254 is not controlling
             on the issue because Plaintiff father had not yet been
             served with the Wake County Complaint at the time the
             Court entered the Temporary Visitation Order (signed by
             counsel for both parties) on November 2, 2015.

             3.    The legislative intent under the UCCJEA is to stop
             forum shopping.

             4.    Although this Court acknowledges that the
             UCCJEA applies to custody actions between two states, the
             Court believes this legislative intent dissuading forum
             shopping applies to intrastate forum shopping as well.

             5.     The Court has continuing exclusive jurisdiction over
             the issue of child custody.

             6.     The Court has jurisdiction to hear the issues of
             Divorce from Bed and Board and Equitable Distribution,
             raised in Plaintiff Father’s Complaint.

             7.     The Court reserves its ruling on attorney’s fees as
             Defendant Mother’s counsel made an oral notice of appeal
             at the end of the Court’s ruling.



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                              JOHNSTON V. JOHNSTON

                                  Opinion of the Court



            8.     Defendant’s Motion to Dismiss is denied.

      The district court determined “Coble v. Coble, 229 N.C. 81, is the controlling

case[.]” However, Coble addressed an interstate factual situation and was decided

before the adoption of the Uniform Child-Custody Jurisdiction Enforcement Act

(“UCCJEA”) which now controls interstate custody cases in North Carolina. See Coble

v. Coble, 229 N.C. 81, 47 S.E.2d 798 (1948); see generally N.C. Gen. Stat. Ch. 50A

(2015). In Coble, both the wife and children lived outside of the State of North

Carolina and our Supreme Court determined North Carolina did not have jurisdiction

over determining child custody:

            If the custody of children is the issue, they must be within
            the bounds of the State.
                   The action, as it relates to the custody of the
            children, is in the nature of an in rem proceeding. The
            children are the res over which the court must have
            jurisdiction before it may enter a valid and enforceable
            order. Indeed, a divorce action is so considered, the status
            being the res. It is for this reason service of summons by
            publication is permitted.
                   At the time the order was issued, the res was not
            within the jurisdiction of the court. The defendant––the
            custodian––was not served with notice and was not
            accorded an opportunity to be heard. This runs counter to
            the genius of a free people and will not be permitted. The
            order is void.
                   ....
                   It is true that upon the institution of a divorce action
            the court is vested with jurisdiction of the children of the
            marriage for the purpose of entering orders respecting
            their care and custody. But the action is not instituted,
            within the meaning of this rule, until and unless the court
            acquires jurisdiction of the person of the defendant, and is


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                                 JOHNSTON V. JOHNSTON

                                     Opinion of the Court



              subject to the fundamental requirement of notice and
              opportunity to be heard.
                     If both parents are in court and subject to its
              jurisdiction, an order may be entered, in proper instances,
              binding the parties and enforceable through its coercive
              jurisdiction. But such is not the case here. Neither the
              infants nor their mother was subject to the jurisdiction of
              the court at the time the order was entered.
                     It is fundamental that a State has no power to enact
              laws to operate upon things or persons not within her own
              territory.

Coble, 229 N.C. at 84–85, 47 S.E.2d at 800–01 (emphasis added) (citations and

quotation marks omitted). While service was an issue in Coble, the Court’s ruling

was ultimately based upon the fact that North Carolina did not have jurisdiction over

the mother and children, who were not within the State. See id.

       We find it particularly odd that the district court specifically relied upon Coble

in its ruling, a 1948 case, even after expressing a concern that Benson v. Benson, 39

N.C. App. 254, 249 S.E.2d 877 (1978), a 1978 case cited by Wife as controlling, may

not be good law, since “[t]his is a ’78 case and it’s a lot -- a lot of change since then[;]”

apparently the district court was concerned about approximately 40 years of change,

but not about 70 years. Furthermore, Benson, which the district court determined

was “not controlling,” is in fact controlling; see Benson, 39 N.C. App. 254, 249 S.E.2d

877, the district court even noted, at the initial hearing, that Benson appeared to be

controlling, but also noted that the trial court “hated” that result and would do

additional research on the applicable law in the hope of finding a different result.



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                                JOHNSTON V. JOHNSTON

                                   Opinion of the Court



Benson was an intrastate custody case which held that the county where the first

custody case was filed had jurisdiction:

             The defendant’s complaint in the Anson County action was
             filed one day prior to the filing of the plaintiff's complaint
             in this action in Wilkes County. Generally speaking,
             actions for child custody, child support and alimony follow
             the same procedures as other civil actions. A civil action is
             commenced by filing a complaint with the court. Once an
             action is commenced, it is pending before the court. If there
             is a pending action for annulment, divorce, or alimony
             without divorce, there cannot be any subsequent action or
             proceeding instituted for the custody and the support of a
             minor child of the marriage, it being necessary for a
             determination of custody and support of the minor child,
             that the issue be joined in the pending action or by a motion
             in the cause in such action.
                    The defendant’s action in Anson County seeking
             alimony without divorce, child custody and child support,
             having been commenced prior to the commencement of this
             action in Wilkes County, the trial court was without
             jurisdiction to entertain this independent action by the
             plaintiff for custody of the minor child. The trial court did
             not have jurisdiction to consider any matter arising from
             the plaintiff's complaint, and the entire proceeding before
             the trial court and its order are, therefore, null and void.

Id. at 255–56, 249 S.E.2d at 878 (citations and quotation marks omitted).

      Here, the Wake County complaint was filed first. Because Wife filed first in

Wake County, the district court in Caswell County “was without jurisdiction to

entertain this independent action by the plaintiff for custody of the minor child. The

trial court did not have jurisdiction to consider any matter arising from the plaintiff’s

complaint, and the entire proceeding before the trial court and its order are, therefore,



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                                   Opinion of the Court



null and void.” Id. The fact that Husband was avoiding service is of no consequence,

as the legal determination turns on first filed, not first served. See id.

      As to the trial court’s conclusions regarding the UCCJEA, as pointed out by

Wife’s counsel at the hearing, the UCCJEA simply has no relevance to this case since

both parties and the children were all in North Carolina. See generally In re E.X.J.,

191 N.C. App. 34, 49–50, 662 S.E.2d 24, 33 (2008), aff'd, 363 N.C. 9, 672, S.E.2d 19

(2009) “Further, the facts before us are distinguishable from the facts presented in In

re Poole. The UCCJEA did not control the analysis or outcome of that case, because

the issues before the Court in In re Poole dealt solely with intrastate parties and

matters.”) Although the district court’s concern regarding the UCCJEA’s policy goal

of avoiding forum-shopping is well-taken, for intrastate disputes, any forum-shopping

issues are more properly addressed under the venue statutes, as the district court

itself noted at one point: “unless you get a change of venue, to me, it will have to be

tried in Wake County.”

      Looking outside of the numerous errors in the district court’s conclusions of

law, Husband’s brief makes much of the fact that wife “tricked” him into dropping his

originally filed Caswell County case, but ultimately he has no law to support any of

his contentions. It may be impossible to determine whether Wife wanted to reconcile

with Husband or tricked him; perhaps Wife did not even know from moment to

moment, as is quite common in this sort of case where emotions run high.



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                                  Opinion of the Court



Nonetheless, why or how Wife filed in Wake County first is not a relevant legal

consideration in this case; only the date of filing matters. Benson, 39 N.C. App. at

255–56, 249 S.E.2d at 878.

      Husband also focuses on the fact that Caswell County had both subject matter

and personal jurisdiction, but Wake County did not have personal jurisdiction over

him, as he had not yet been served. But again, service of process is simply not part

of the analysis of where the action was first commenced. See id. Furthermore, it is

somewhat ironic that Husband bases his first argument on his claims of Wife’s bad

intent but then ignores the fact that he -- a licensed attorney and Caswell County bar

president -- purposefully avoided being served with the Wake County complaint in

support of his flawed legal theory.

                                  III.   Conclusion

      We reverse the district court’s order denying Wife’s motion to dismiss. Because

the trial court was without subject matter jurisdiction, we vacate the temporary

custody order entered in Caswell County. We remand with instructions to consider

Wife’s motion for attorney fees in Caswell County since that motion was part of her

motion to dismiss, upon which she should have prevailed. The district court in

Caswell County will retain the issues of divorce from bed and board and equitable

distribution because they were not filed in Wake County.

      REVERSED in part, VACATED in part, and REMANDED.



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                    JOHNSTON V. JOHNSTON

                       Opinion of the Court



Chief Judge McGEE and Judge TYSON concur.




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