Chamberlin v. Chamberlin , 70 N.C. App. 474 ( 1984 )

319 S.E.2d 670 (1984)

Thomas H. CHAMBERLIN
v.
Nancy Ann Shipman CHAMBERLIN.

No. 838DC1069.

Court of Appeals of North Carolina.

September 18, 1984.

White, Allen, Hooten, Hodges & Hines by John C. Archie, Kinston, for plaintiff-appellee.

Taylor, Warren, Kerr & Walker by David E. Hollowell, Goldsboro, for defendant-appellant.

EAGLES, Judge.

We note at the outset that an appeal lies immediately from refusal by the trial court to dismiss a cause for want of jurisdiction over the person where the motion is made pursuant to G.S. 1A-1, Rule 12(b)(2). Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982); G.S. 1-277(b). Defendant does not challenge the sufficiency of process or the manner of service in her brief and has thus waived argument concerning the trial court's denial of her motion to dismiss pursuant to G.S. 1A-1, Rules 12(b)(4) and 12(b)(5). Rule 28(b)(5), Rules of Appellate Procedure.

In the sole remaining assignment of error, defendant asserts that the trial court erred in denying her motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(2). We hold that there was no error.

Defendant contends that the trial court does not have personal jurisdiction over her for the purpose of granting an absolute divorce based upon one year's separation as prayed for by the plaintiff. This contention is without merit.

An action for divorce is a statutory proceeding which differs substantially from any other type of proceeding... In some respects a divorce action is in the nature of an action in rem and in others in personam. When the action is limited solely to a dissolution of the marriage, it has been considered a proceeding in rem, the res upon which the judgment operates being the status of the parties. [Emphasis added] 1 Lee, North Carolina Family Law, Section 41 (4th Ed.1979).

G.S. 1-75.8 states, in pertinent part: "A court of this state having jurisdiction over the subject matter may exercise jurisdiction in rem ... (3) [w]hen the action is for a divorce or annulment of a resident of this State."

Our law requires that one of the parties to a divorce action based upon one year's separation be a resident of this State for six months next preceding the filing of the divorce action. This residency requirement is jurisdictional and confers the necessary subject matter jurisdiction for the trial court to proceed in rem under G.S. 1-75.8(3). See, Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975). Since this jurisdictional residency requirement was clearly met in the instant case, the trial court correctly concluded as a matter of law pursuant to G.S. 1-75.8(3) that it could proceed.

While the due process mandates of fairness apply with equal force to actions in rem and quasi in rem as well as to actions in personam, Canterbury v. Monroe Lange Hardwood Imports, 48 N.C.App. 90, 268 S.E.2d 868 (1980), it is also clear that the General Assembly in enacting G.S. 1-75.8(3) intended to confer on the North Carolina courts the full jurisdictional powers permissible under federal due process as they relate to in rem and quasi in rem jurisdiction for divorce and annulment proceedings of North Carolina residents. See, Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977) (holding similarly for G.S. 1-75.4, the State's "Long Arm Statute").

In Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), the United States Supreme Court held the "minimum contacts" test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), applicable to all actions whether in personam, in rem or quasi in rem. However, the Shaffer Court also stated: "It appears, therefore, that jurisdiction over many types of actions which are now or might be brought in rem would not be affected by a holding that any assertion of state court jurisdiction must satisfy the International Shoe standard." 433 U.S. at 208, 97 S.Ct. at 2582.

In a footnote, the Shaffer court continued: "We do not suggest that jurisdictional doctrines other than those discussed in ... [the text of the opinion], such as rules governing adjudications of status, are inconsistent with the standard of fairness." 433 U.S. at 208 n. 30, 97 S.Ct. at 2582 n. 30.

G.S. 1-75.8(3) governs in rem and quasi in rem jurisdiction over the marriage status of residents of this State. G.S. 1-75.8(3) is a necessary means to accomplish the compelling interest of North Carolina courts in adjudicating the status of North Carolina residents. Given the State's compelling interest in determining the status of its residents, balanced against defendant's arguments of lack of "minimum contacts," we cannot say that G.S. 1-75.8(3) is inconsistent with the standard of due process fairness announced in Shaffer v. Heitner, supra.

For these reasons, we hold that the District Court of Lenoir County has jurisdiction pursuant to G.S. 1-75.8(3) to adjudicate the dissolution of the marriage between plaintiff, a resident of this State, and defendant, a resident of the State of Pennsylvania.

Defendant's other assignments of error are without merit.

The judgment of the trial court is affirmed.

ARNOLD and WHICHARD, JJ., concur.