Hopkins v. Hopkins ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1229
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
SHELLY A. HOPKINS,
Plaintiff
v. Forsyth County
No. 12 CVD 8177
ZELLA HOPKINS
Defendant.
Appeal by Plaintiff from order entered 12 June 2013 by
Judge Lawrence J. Fine in Forsyth County District Court. Heard
in the Court of Appeals 5 March 2014.
Bailey & Ryan, PLLC, by Nora Ryan and Earnest Bailey, for
Plaintiff-appellant.
Stacey D. Rubain, for Defendant-appellee.
DILLON, Judge.
Shelly A. Hopkins (“Plaintiff”) appeals from the trial
court’s order dismissing his complaint for divorce from bed and
board, post-separation support, alimony, equitable distribution,
and attorney’s fees against his wife, Zella Hopkins
(“Defendant”) for lack of personal jurisdiction pursuant to N.C.
Gen. Stat. § 1A-1, Rule 12(b)(2). For the following reasons, we
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reverse the trial court’s order and remand for further
proceedings.
I. Background
The findings of fact which are not challenged by Plaintiff
tend to show as follows: In 1954, Plaintiff and Defendant were
married in Forsyth County, North Carolina. In 1966, they moved
to California where Defendant obtained employment as a public
school teacher. The parties separated in 2011, and Plaintiff
moved to North Carolina in 2012. Defendant, however, has
remained a citizen and resident of California.
During her tenure as a California public school teacher,
Defendant returned to North Carolina during each of her summer
breaks to visit with relatives, normally staying all summer.
After retirement, Defendant spent even more time in North
Carolina, staying approximately six months in 2012.
Since 1986, Defendant has owned a house in Winston-Salem,
which was deeded to her and her father by her grandmother. She
has been the sole owner of this house since 1995. Defendant has
attempted to rent the property, including one occasion which
ended when Defendant filed a summary ejectment action against a
tenant. The house has been vacant for the past ten years.
Plaintiff also has been deeded an ownership interest in two
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other North Carolina properties since her move to California;
however, she no longer retains an ownership interest in these
two properties.
Defendant currently receives a pension from the State of
California in the amount of $5,000 per month, while Plaintiff’s
sole source of income is Social Security in the amount of $1,000
per month. Plaintiff is in poor health, suffers from dementia,
and is legally blind.
On 12 December 2012, Plaintiff filed this action against
Defendant for divorce from bed and board, post-separation
support, alimony, equitable distribution, divorce, and
attorney’s fees. On 18 January 2013, Defendant filed a motion
to dismiss all the claims, except for Plaintiff’s claim for
divorce, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2),
contending that North Carolina did not have personal
jurisdiction over her. On 16 May 2013, Plaintiff filed a
memorandum in opposition to Defendant’s motion, with supporting
documentation and three affidavits.
On 12 June 2013, the trial court entered an order,
including findings of fact and conclusions of law, granting
Defendant’s motion to dismiss for lack of personal jurisdiction.
On 10 July 2013, Plaintiff voluntarily dismissed his sole
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remaining claim - that being his divorce claim – and filed his
notice of appeal from the trial court’s order dismissing his
other claims.
II. Standard of Review
“The standard of review of an order determining personal
jurisdiction is whether the findings of fact by the trial court
are supported by competent evidence in the record[.]” Bell v.
Mozley, 216 N.C. App. 540, 543, 716 S.E.2d 868, 871 (2011)
(quotation omitted). Findings which are not challenged on
appeal are “presumed to be supported by competent evidence and
[are] binding on appeal.” Id. “We review de novo the issue of
whether the trial court’s findings of fact support its
conclusion of law that the court has personal jurisdiction over
defendant.” Id.III. Argument
On appeal, Plaintiff challenges five of the trial court’s
findings and puts forth a number of arguments to support his
contention that the trial court erred by concluding it lacked
personal jurisdiction over Defendant. We believe that the
unchallenged findings by the trial court and the uncontradicted
evidence supports the conclusion that North Carolina does have
general jurisdiction over Defendant; and, accordingly, we
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reverse the order of the trial court dismissing Plaintiff’s
claims1.
We have held that when the exercise of personal
jurisdiction is challenged by a non-resident defendant, “the
trial court must undertake a two-pronged inquiry. First, the
court must determine whether the controversy falls within the
language of the relevant long-arm statute. Second, the exercise
of jurisdiction must not violate the due process clause of the
Fourteenth Amendment to the United States Constitution.” Shaner
v. Shaner, ___ N.C. App.___, ___, 717 S.E.2d 66, 68 (2011)
(citations omitted). Here, Plaintiff makes no argument
regarding the application of the long-arm statute. Accordingly,
we will only address the trial court’s conclusions as to due
1
We note that finding of fact 20 suggests that the trial
court had concluded that North Carolina does have general
jurisdiction. Specifically, that finding states that “[u]nder
North Carolina’s long-arm statute . . . , North Carolina has
general jurisdiction over the Defendant based upon her
aforementioned contacts with North Carolina.” Based on the
context, it appears that the trial court was merely stating that
our long-arm statute provided for jurisdiction rather than that
due process requirements had been met. Indeed, the trial court
ultimately concluded the opposite. In any event, this statement
is not important in our resolution of this appeal since we
review de novo whether the findings support a conclusion
regarding personal jurisdiction. See Bell, 216 N.C. App. at
540, 716 S.E.2d at 871.
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process. See Dailey v. Popma, 191 N.C. App. 64, 69, 662 S.E.2d
12, 16 (2008).
To satisfy the due process requirement for a court to
exercise personal jurisdiction over a non-resident defendant,
there must exist “certain minimum contacts between the non-
resident defendant and the forum state such that the maintenance
of the suit does not offend traditional notions of fair play and
substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S.
310, 316, 90 L. Ed. 95, 102 (1945). Our Supreme Court has
stated that “[i]n each case, there must be some act by which the
defendant purposefully avails himself of the privilege of
conducting activities within the forum state, thus invoking the
benefits and protections of its laws; the unilateral activity
within the forum state of others who claim some relationship
with a nonresident defendant will not suffice.” Tom Togs, Inc.
v. Ben Elias Indus. Corp., 318 N.C. 361, 365, 348 S.E.2d 782,
786 (1986).
There are two types of personal jurisdiction, general
jurisdiction and specific jurisdiction. “General jurisdiction
exists when the defendant’s contacts with the state are not
related to the cause of action but the defendant’s activities in
the forum are sufficiently ‘continuous and systematic.’
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Specific jurisdiction exists when the cause of action arises
from or is related to defendant’s contacts with the forum.”
Skinner v. Preferred Credit, 361 N.C. 114, 122, 638 S.E.2d 203,
210 (2006) (citing Helicopteros Nacionales de Colombia v. Hall,
466 U.S. 408, 414-16, 80 L. Ed. 2d 404, 410-13 (1984)).
In order for a court to assert general jurisdiction, we
have stated that there must be “substantial” forum-related
minimum contacts on the part of the defendant. Fraser v.
Littlejohn, 96 N.C. App. 377, 383, 386 S.E.2d 230, 234 (1989)
(citing Helicopteros Nacionales de Colombia, 466 U.S. at 414, 80
L. Ed. 2d at 411).
In determining whether substantial forum-related minimum
contacts exist, we examine the following factors: “(1) quantity
of the contacts, (2) nature and quality of the contacts, (3) the
source and connection of the cause of action to the contacts,
(4) the interest of the forum state, and (5) convenience to the
parties.” Inspirational Network, Inc. v. Combs, 131 N.C. App.
231, 240, 506 S.E.2d 754, 761 (1998) (citation omitted).
With respect to the first factor, we believe that the
quantity of Defendant’s contacts with North Carolina have been
substantial. She was a native of North Carolina; she married
Plaintiff in 1954 in North Carolina; she resided with Plaintiff
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for twelve years and had three children in North Carolina; and
she has visited North Carolina every year since her move to
California in 1966.
With respect to the second factor, we believe that the
nature and quality of Defendant’s contacts with North Carolina
have been substantial. Specifically, not only has Defendant
frequently visited North Carolina, but also these stays have
generally been for extended periods of time. Additionally,
uncontradicted evidence shows that Defendant filed a summary
ejectment action2 in a North Carolina court to evict a tenant
from the house she owns in Forsyth County. See Strother v.
Strother, 120 N.C. App. 393, 397, 462 S.E.2d 542, 545 (1995)
(holding that due process was satisfied when the defendant filed
a lawsuit in North Carolina as “it may be said [he has] invoked
the benefits and protections of the law of the forum” (citation
omitted)). Further, the trial court found that Defendant was a
defendant in another North Carolina action, where Defendant did
not seek a dismissal based on a lack of personal jurisdiction,
but rather submitted herself to the jurisdiction of the North
Carolina courts.
2
The trial court found that the person managing the property for
Defendant filed the summary ejectment action. It may be that
the property manager filed the paperwork, but the filing shows
that Defendant was the named plaintiff in the action.
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As to the third factor, regarding the connection of this
action to the contacts, we recognize that a majority of the
marriage, including much of the past fifty years, occurred in
California. However, we note that the parties were married in
North Carolina and resided as a married couple here for twelve
years. We note that the unchallenged evidence in the affidavits
included by Plaintiff in the record on appeal show that
witnesses in North Carolina observed Defendant’s frequent visits
to North Carolina every summer and Plaintiff’s frail condition
once he was dropped off in North Carolina by Defendant in 2012,
supporting Plaintiff’s claims for constructive abandonment.
Unchallenged evidence in the affidavits also state that
witnesses in North Carolina knew details surrounding possible
infidelity by Defendant in North Carolina at the beginning of
the parties’ marriage, supporting Plaintiff’s claims of marital
misconduct in his complaint. See Robinson v. Robinson, 56 N.C.
App. 737, 739, 289 S.E.2d 612, 614 (1982) (stating that there
were sufficient minimum contacts where “defendant was married in
North Carolina. He and plaintiff resided as husband and wife in
North Carolina. Defendant’s alleged abandonment of plaintiff was
an act occurring within the State.”).
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As to the fourth factor, we believe that North Carolina has
an interest in this matter. Specifically, the parties were
married here; and Plaintiff is a resident of North Carolina.
North Carolina has an interest in protecting the rights of its
citizens and the institution of marriage. See Cooper v. Shealy,
140 N.C. App. 729, 735, 537 S.E.2d 854, 858 (2000) (stating that
“North Carolina’s legislature and courts have repeatedly
demonstrated the importance of protecting marriage.”)3
3
Defendant argues that Plaintiff is engaged in “forum
shopping” by filing this action in North Carolina by recently
moving here after spending 46 years of the marriage in
California. In the context of a personal jurisdiction
determination, prior cases have found “forum shopping” when
there was an insignificant nexus between the claims in the
plaintiff’s complaint and the forum state, and/or the
plaintiff’s claims had been abolished by the resident states of
the parties or in the state where the relevant allegations
occurred. See Dillon v. Numismatic Funding Corp., 291 N.C. 674,
679, 231 S.E.2d 629, 632 (1977) (finding “no hint of forum
shopping” in the plaintiff’s decision to file his breach of
contract claim in North Carolina, as he was a resident of North
Carolina and the defendant, a New York corporation, had
solicited orders from residents of North Carolina on a regular
basis for twenty-one months); Bell, 216 N.C. at 547-48, 716
S.E.2d at 873-74 (concluding that the plaintiff’s decision to
sue for alienation of affection and criminal conversation in
North Carolina “smack[ed] of forum shopping” because those torts
had been abolished in South Carolina, the parties’ state of
residence, and little if any of the conduct occurred in North
Carolina, and the relevant witnesses were located in South
Carolina); Eluhu v. Rosenhaus, 159 N.C. App. 355, 361, 583
S.E.2d 707, 712 (2003) (concluding that the plaintiff’s decision
to sue for alienation of affection in North Carolina “smack[ed]
of forum shopping” because that tort had been abolished in
Tennessee and California, the parties’ resident states, and
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As to the fifth factor, the convenience of the parties, see
Inspirational Network, Inc., 131 N.C. App. at 240, 506 S.E.2d at
761, the unchallenged findings and evidence in the record, show
that Plaintiff resides in North Carolina and Defendant resides
in California. In Brown v. Ellis, this Court stated that “it is
true that the travel burden on defendant, a California resident,
would be much greater than that imposed on a resident of Georgia
or South Carolina. However, we must consider all of the factors
regarding minimum contacts, not just convenience of the
parties.” 206 N.C. App. 93, 100-01, 696 S.E.2d 813, 819 (2010),
appeal dismissed and disc. review denied, 365 N.C. 209, 709
S.E.2d 928 (2011). In examining this factor, the Brown Court
stated that “[t]he only factor to weigh in defendants’ favor is
there was “little, if any at all, connection between defendant’s
contacts with North Carolina and plaintiff’s cause of action”),
affirmed per curiam, 358 N.C. 372, 595 S.E.2d 146 (2004). Here,
Defendant’s current state of residence, California, generally
recognizes claims similar as Plaintiff raises in his complaint.
See Cal. Fam. Code §§ 2310-2313 (West 2012) (Grounds for
Dissolution or Legal Separation); Cal. Fam. Code §§ 4320-4339(West 2012) (Spousal Support upon Dissolution or Legal
Separation); and Cal. Fam. Code §§ 2500-2660 (West 2012)
(Division of Property). Defendant fails to explain in her brief
any advantage to Plaintiff inherent to his claims being
litigated in North Carolina rather than California. Also, as
determined above, there is sufficient nexus between North
Carolina and Plaintiff’s claims. Therefore, we see no “forum
shopping” in Plaintiff filing his claims in North Carolina in
2012.
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the inconvenience of attending to litigation in North Carolina,
but plaintiff has alleged that evidence regarding his claims is
located in North Carolina.” Id. at 101, 696 S.E.2d at 819.
Likewise, here, the only factor weighing in Defendant’s favor is
the travel burden from California to North Carolina. But, as
determined above, Plaintiff’s complaint makes a sufficient nexus
with North Carolina, as evidence and witnesses supporting his
claims are in North Carolina. We also recognize that many of
the witnesses and facts surrounding the marriage may also be in
California. But it has been established that the interest in
the forum and the convenience to the parties are “secondary”
factors to consider in making a minimum contacts determination.
B.F. Goodrich Co. v. Tire King of Greensboro, Inc., 80 N.C. App.
129, 132, 341 S.E.2d 65, 67 (1986) (citation omitted).
Defendant argues that we should apply Eluhu v. Rosenhaus to
the case sub judice. The Eluhu Court stated that “a finding of
continuous and systematic contacts does not automatically
authorize the exercise of general personal jurisdiction over a
defendant” if the exercise of personal jurisdiction violates the
defendant’s due process rights “based on inconvenience to the
defendant and/or a lack of interest of the forum state in the
litigation.” 159 N.C. App. 355, 361, 583 S.E.2d 707, 712
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(2003), affirmed per curiam, 358 N.C. 372, 595 S.E.2d 146(2004). In Eluhu, the Court found that Defendant’s contacts in
North Carolina were “continuous and systematic” but did not find
general jurisdiction. Id. at 361-62, 583 S.E.2d at 712. After
stating that North Carolina had an interest in protecting the
institution of marriage, the Court found that the forum’s
interest in this action was low given the insufficient nexus
between the action and the forum because neither party was a
resident of North Carolina; the plaintiff’s allegations
involving actions by the defendant in North Carolina were
rebutted by the defendant’s affidavits; and the plaintiff did
not allege the existence of witnesses or evidence within North
Carolina necessary to his case. Id. at 362, 583 S.E.2d at 712.
The Court in affirming the denial of personal jurisdiction over
the defendant noted that without an interest on the part of
North Carolina in adjudicating this dispute, the inconvenience
to the non-resident defendant was not “mitigated.” Id. The
Court in Eluhu ultimately decided not to exercise personal
jurisdiction over the defendant because there was an
insufficient nexus between North Carolina and the action for
alienation of affection to overcome the travel burden to the
defendant. See id.-14-
In the present case, like the defendant in Eluhu, there is
some travel burden on Defendant. However, Plaintiff is a
resident of North Carolina and, as stated above, this State
would have an interest in the institution of marriage and in
protecting the rights of its residents. Further, unlike Eluhu,
there is a sufficient nexus between Plaintiff’s claims and the
forum state. Accordingly, we find Eluhu to be distinguishable
from the present case.
Therefore, after balancing the relevant factors and
considering the fundamental fairness and circumstances of the
case, see Banc of Am. Secs. LLC v. Evergreen Int’l Aviation,
Inc. 169 N.C. App. 690, 693, 611 S.E.2d 179, 182 (2005), we
hold that the unchallenged findings of fact and the unchallenged
evidence in the record do not support the trial court’s
conclusion that Defendant did not have sufficient minimum
contacts with North Carolina to establish personal jurisdiction
over Defendant based on general jurisdiction. As we find the
issue of personal jurisdiction based on general jurisdiction
dispositive, we need not address Plaintiff’s other arguments.
Accordingly, we reverse the trial court’s conclusion that
it did not have personal jurisdiction over Defendant based on
general jurisdiction and remand for further proceedings.
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REVERSED AND REMANDED.
Judge BRYANT and Judge STEPHENS concur.
Report per Rule 30(e).