               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-1227

                                    Filed: 3 July 2018

Randolph County, No. 03 CVD 508

JEANNE SOUTHALL SCHEINERT, Plaintiff,

              v.

HARRY STEVEN SCHEINERT, Defendant.


        Appeal by plaintiff from judgment entered 25 May 2017 by Judge Robert M.

Wilkins in Randolph County District Court. Heard in the Court of Appeals 18 April

2018.


        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.
                               SCHEINERT V. SCHEINERT

                                   Opinion of the Court



                          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.




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                                    Opinion of the Court



                                        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) the plaintiff has since moved out of the State. See N.C. Gen. Stat. § 50-3.

        The parties agree that the first and third criteria are satisfied in this case and

that the trial court’s order properly found facts supporting those criteria. But they

dispute whether the trial court found that Mr. Scheinert resided outside of Randolph

County when Ms. Scheinert brought the alimony action.

        To be sure, there was at least some competent evidence to support a finding

that Mr. Scheinert did not reside in Randolph County when the alimony action

commenced. In his verified answer and counterclaim, Mr. Scheinert disputed the



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                                   Opinion of the Court



allegation that he was a resident of Randolph County and averred that he was a

resident of Guilford County. But the only finding addressing this issue in the court’s

order is the following: “On June 5, 2003, Defendant/Husband filed an Answer and

Counterclaim alleging that he was a citizen and resident of Guilford County, North

Carolina, as he had moved there recently after the date of separation.”

         This is not a fact-finding; it is merely a recitation of an allegation in Mr.

Scheinert’s answer. This Court has repeatedly held that a trial court cannot find facts

by merely reciting allegations in the parties’ pleadings; instead, the court must make

a finding that the allegation is indeed a fact. See, e.g., In re Anderson, 151 N.C. App.

94, 97, 564 S.E.2d 599, 602 (2002) (“As indicated by the word ‘alleged,’ the findings

are not the ‘ultimate facts’ required by Rule 52(a) to support the trial court’s

conclusions of law, but rather are mere recitations of allegations.”). Thus, we agree

with Ms. Scheinert that the trial court’s order does not contain sufficient findings to

support its conclusion that N.C. Gen. Stat. § 50-3 required the case to be transferred

to Caswell County. Accordingly, as explained below, we remand for further

appropriate proceedings in the trial court’s discretion.

   II.      Applicability of N.C. Gen. Stat. § 50-3 without a separate pending
            motion

         Ms. Scheinert also contends that remand is inappropriate because, as a matter

of law, N.C. Gen. Stat. § 50-3 does not apply in this case. She argues that a defendant




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                                   Opinion of the Court



may invoke Section 50-3 only if there is some pending motion or trial date that will

be transferred as part of the Section 50-3 order. We disagree.

       “Where the language of a statute is clear and unambiguous, there is no room

for judicial construction and the courts must construe the statute using its plain

meaning.” Wilkie v. City of Boiling Spring Lakes, __ N.C. __, __, 809 S.E.2d 853, 858

(2018). Section 50-3 provides that “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 (emphasis added).

The phrase “the action may be removed . . . for any motion in the cause” is forward-

looking—its structure indicates that something will happen now for something to

happen later. In other words, the statute requires the transfer so that a motion in the

cause may be resolved in the new county at some future point. Nothing in the text of

the statute requires that this underlying motion be pending in order to transfer the

matter. All that is required is that there is an ongoing alimony proceeding that has

not been finally resolved, and that the statutory criteria to transfer the matter are

satisfied.

       Indeed, at the hearing on this matter, Mr. Scheinert indicated that “[a]t some

point, there will be a motion to modify or motion to terminate the alimony” and that

he sought to transfer the action to Caswell County so that this future motion could




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                                   Opinion of the Court



be decided there. This is precisely what the text of the statute anticipates.

Accordingly, we reject this argument.

                                     Conclusion

      We vacate and remand this matter for additional fact finding as described in

this opinion. On remand, the trial court, in its discretion, may enter a new order based

on the existing record, or conduct any additional proceedings that the court finds

necessary.

      VACATED AND REMANDED.

      Judges DILLON and ARROWOOD concur.




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