SANDRA BUTLER,
Plaintiff
v
.
JEFFREY BUTLER,
Defendant
The Rosen Law Firm, by Lee S. Rosen and Erik L. Mazzone, for
plaintiff-appellee.
Staton, Perkinson, Doster, Post, and Silverman, P.A., by
Jonathan Silverman and Charles M. Oldham, III, for defendant-
appellant.
CAMPBELL, Judge.
Jeffrey Butler (“defendant”) appeals from the trial court's
order denying his motion to dismiss plaintiff's action pursuant to
N.C. R. Civ. P. 12(b)(2) based on lack of personal jurisdiction.
We hold that the trial court correctly concluded that sufficient
grounds exist for the courts of this State to exercise personal
jurisdiction over defendant in the instant action. Accordingly, we
affirm the trial court's ruling.
Jeffrey and Sandra Butler (“plaintiff”) were married in
Florida on 19 October 1992. The parties have a daughter, Shannon
Butler, who was born on 12 November 1991 and lived with the parties
in the Bahamas during the first four or five years of theirmarriage.
(See footnote 1)
In 1995 or 1996, plaintiff and her two daughters moved
to Florida, then on to North Carolina, where they took up residence
in a house in Moore County purchased by plaintiff and defendant.
Plaintiff and defendant separated on 1 July 2000, and on 18
September 2000, plaintiff instituted the instant action, seeking
child support, alimony, postseparation support, and equitable
distribution. The complaint alleges that “[d]efendant is a citizen
and resident of Freeport, Grand Bahama Island.” Defendant was
served with the summons and complaint in Florida on 27 September
2000. On 16 October 2000, defendant filed a motion to dismiss
plaintiff's complaint under N.C. R. Civ. P. 12(b)(2), asserting
that the court lacked personal jurisdiction over him “in that he
has at no time been a resident of the State of North Carolina.”
After hearing the testimony of plaintiff and defendant, the trial
court concluded that defendant had sufficient minimum contacts with
this State to allow the court to constitutionally assert personal
jurisdiction over him under this State's long-arm statutes,
including, but not limited to, N.C. Gen. Stat. § 52C-2-201.
Accordingly, the trial court denied defendant's motion to dismiss.
Defendant appeals.
The denial of a motion to dismiss for lack of personal
jurisdiction, although interlocutory, is immediately appealable.
N.C. Gen. Stat. § 1-277(b) (2001); Teachy v. Coble Dairies, Inc.,306 N.C. 324, 293 S.E.2d 182 (1982); Cooper v. Shealy, 140 N.C.
App. 729, 537 S.E.2d 854 (2000). In reviewing an order determining
whether personal jurisdiction is statutorily and constitutionally
permissible, “[t]he trial court's findings of fact are conclusive
if supported by any competent evidence and judgment supported by
such findings will be affirmed, even though there may be evidence
to the contrary.” Shamley v. Shamley, 117 N.C. App. 175, 180, 455
S.E.2d 435, 438 (1994) (citing Little v. Little, 9 N.C. App. 361,
365, 176 S.E.2d 521, 523-24 (1970)).
It is well settled “that a two-step analysis is to be employed
to determine whether a non-resident defendant is subject to the in
personam jurisdiction of our courts.” Miller v. Kite, 313 N.C.
474, 476, 329 S.E.2d 663, 665 (1985). First, it should be
determined whether North Carolina law provides a statutory basis
for the assertion of personal jurisdiction in the action the
plaintiff has brought against the defendant. Id.; see also
Sherlock v. Sherlock, 143 N.C. App. 300, 301, 545 S.E.2d 757, 759
(2001); Shamley, 117 N.C. App. at 178, 435 S.E.2d at 437. If the
court concludes that there is a statutory basis for jurisdiction,
it must determine whether the exercise of personal jurisdiction
comports with the due process requirements of the Fourteenth
Amendment. Miller, 313 N.C. at 476, 329 S.E.2d at 665.
The trial court entered the following findings of fact in
support of its conclusion that personal jurisdiction over defendant
was statutorily and constitutionally permissible in the instant
case: a. Prior to the institution of these lawsuits,
Defendant purchased a house in Moore County
with the Plaintiff partially to allow his
daughter to be schooled in North Carolina,
therefore availing himself of the Moore County
Schools and other associated benefits provided
by the state.
b. While married to the Plaintiff and after
the parties had purchased their residence in
Moore County, the Defendant visited Moore
County at least once per month for at least
two years. During these visits he would
reside in the marital residence for three (or
more) day periods.
c. Defendant maintains a membership in Moore
County [H]ounds, a social and sporting
association and has participated in its
activities in Moore County.
d. Defendant has used the equity line
attached to the marital residence in Moore
County for business purposes.
These findings of fact are supported by the testimony of the
parties, which was the only evidence received by the trial court.
Defendant testified that the parties purchased the house in
Moore County in 1995 and that his name appears on the deed and on
the mortgage to the house. Defendant also testified that he “was
convinced that North Carolina was the best place for education for
the girls.” However, later in his testimony, defendant stated that
he took no part in plaintiff's decision to take the girls to North
Carolina, but that he agreed to purchase the house and let the
girls stay in school here instead of fighting the issue in the
Supreme Court of the Bahamas, which was the girls' legal residence.
According to defendant's testimony, he moved plaintiff and the
girls to Florida in 1995. Two months later, without his knowledge,
plaintiff moved with the girls to North Carolina. Defendanttestified that he visited plaintiff and the girls an average of
once per month following their move to North Carolina. Defendant
also testified that he and plaintiff had taken out an equity line
of credit on the house in Moore County.
Plaintiff testified that she and defendant purchased the house
in North Carolina in 1995 with the intention of moving the
following year, and that defendant made preparations to sell his
business in the Bahamas in anticipation of the family's move to
this State. According to plaintiff, defendant visited her and the
girls every two weeks following their move to Moore County. She
further testified that defendant used the equity line of credit on
the Moore County house to obtain cash to purchase supplies to take
back to the Bahamas for business purposes.
(See footnote 2)
Although the testimony
of the parties conflicts as to certain details of the course of
events, there is competent evidence in the record to support the
findings of fact entered by the trial court. Thus, we must
determine whether these findings support the exercise of personal
jurisdiction over defendant. See Shamley, 117 N.C. App. at 180,
455 S.E.2d at 438.
The trial court found statutory grounds for personal
jurisdiction under the Uniform Interstate Family Support Act
(“UIFSA”), codified in Chapter 52C of the North Carolina GeneralStatutes. See N.C. Gen. Stat. § 52C-1-100 to -9-902 (2001).
(See footnote 3)
We
agree.
UIFSA provides procedural mechanisms for the interstate
establishment, enforcement and modification of child and spousal
support obligations. N.C.G.S. § 52C-1-103 official commentary;
Welsher v. Rager, 127 N.C. App. 521, 524, 491 S.E.2d 661, 663
(1997). UIFSA was enacted to replace its predecessor, the Uniform
Reciprocal Enforcement of Support Act (“URESA”). Under URESA, a
state could assert jurisdiction to establish, vacate, or modify a
child or spousal support obligation even when a similar obligation
had been created in another jurisdiction. Welsher, 127 N.C. App.
at 524, 491 S.E.2d at 663. “The result was often multiple,
inconsistent obligations existing for the same obligor and
injustice in that obligors could avoid their responsibility by
moving to another jurisdiction and having their support obligations
modified or even vacated.” Id. UIFSA creates a structure designed
to correct this problem and provide for only one support order at
a time. N.C.G.S. § 52C-2-201 official commentary.
UIFSA provides two options for a petitioner seeking to
establish a child or spousal support order against a respondent
residing in another state. First, the petitioner may initiate a
two-state proceeding to establish a support order in the
respondent's State of residence. N.C.G.S. § 52C-3-301(c); N.C.G.S.
§ 52C-2-203 to -2-206. This two-state procedure is derived fromthe two-state procedure under URESA. N.C.G.S. § 52C-3-301 official
commentary. In this situation, the initiating State does not
assert personal jurisdiction over the nonresident respondent, but
instead forwards the case to the responding State (the respondent's
State of residence), which has the authority to assert personal
jurisdiction over its resident. N.C.G.S. § 52C-2-203 official
commentary.
The second option is for the petitioner to utilize UIFSA's
long-arm statute to obtain personal jurisdiction over the
nonresident respondent. N.C.G.S. § 52C-2-201. The petitioner may
then file a petition or comparable pleading directly in the State
which has or can obtain personal jurisdiction over the respondent.
N.C.G.S. § 52C-3-301(c).
(See footnote 4)
The purpose of UIFSA's long-arm statute
is to reduce the frequency of the two-state procedure. N.C.G.S. §
52C-2-201 official commentary. In a one-state proceeding under the
long-arm statute, the forum State may utilize certain two-state
procedures which forward the interests of economy, efficiency, and
fair play. N.C.G.S. § 52C-2-202 official commentary. Thus, under
N.C.G.S. § 52C-2-202, when a court of this State exercises personal
jurisdiction over a nonresident under N.C.G.S. § 52C-2-201, it “may
apply G.S. 52C-3-315 to receive evidence from another state, and
G.S. 52C-3-317 to obtain discovery through a tribunal of another
state.” N.C.G.S. § 52C-2-202. In the instant case, plaintiff initiated a one-state action in
this State for child support, spousal support and equitable
distribution, and the trial court found statutory authority for the
exercise of personal jurisdiction under N.C.G.S. § 52C-2-201.
N.C.G.S. § 52C-2-201 allows a tribunal of this State to
exercise personal jurisdiction over a nonresident individual in a
proceeding to establish a child or spousal support order in the
following instances applicable to the instant case:
(3) The individual resided with the child in
this State;
. . .
(5) The child resides in this State as a
result of the acts or directives of the
individual;
. . .
(8) There is any other basis consistent with
the constitutions of this State and the United
States for the exercise of personal
jurisdiction.
N.C.G.S. § 52C-2-201. When personal jurisdiction is alleged to
exist pursuant to subsection (8) of N.C.G.S. § 52C-2-201, the
question of statutory authority to exercise personal jurisdiction
collapses into the question of whether such exercise of personal
jurisdiction meets the due process requirements of the Fourteenth
Amendment.
According to the official commentary to N.C.G.S. § 52C-2-201,
subsection (8) permits the assertion of long-arm jurisdiction over
a nonresident, such as defendant in the instant case, in an action
for spousal support. Further, the official commentary states thatthe assertion of personal jurisdiction under subsection (8) yields
jurisdiction over all matters to be decided between the spouses,
including the division of property on divorce. N.C.G.S. § 52C-2-
201 official commentary.
Applying UIFSA's long-arm statute to the trial court's
findings of fact in the instant case, we conclude that statutory
personal jurisdiction exists as to plaintiff's child support claim
pursuant to subsections (3) and (5) of N.C.G.S. § 52C-2-201. The
trial court found as fact based on competent evidence that
defendant purchased the house in North Carolina partially to allow
his daughter to attend school in this State. This finding of fact
supports the legal conclusion that defendant's minor child “resides
in this State as a result of the acts or directives of the
individual.” N.C.G.S. § 52C-2-201(5). The trial court further
found as fact that, while still married to plaintiff, defendant
visited plaintiff and his daughter in Moore County at least once
per month for at least two years and resided in the marital
residence for three or more days at a time. These factual findings
support the conclusion that defendant “resided with the child in
this State.” N.C.G.S. § 52C-2-201(3). For these reasons, we
conclude that statutory jurisdiction over plaintiff's child support
claim exists under UIFSA.
(See footnote 5)
However, in order to assert statutory personal jurisdiction
over defendant as to plaintiff's claims for spousal support and
equitable distribution, we must rely on subsection (8) of N.C.G.S.
§ 52C-2-201. Accordingly, if the exercise of personal jurisdiction
over defendant complies with constitutional due process standards,
the courts of this State are free to exercise such jurisdiction as
to all of the claims asserted by plaintiff in the case sub judice,
and the order of the trial court must be affirmed.
The constitutional due process requirements for personal
jurisdiction were articulated by the United State Supreme Court in
International Shoe Company v. Washington, 326 U.S. 310, 90 L. Ed.
95 (1945), in which the Court held:
[D]ue process requires only that in order to
subject a defendant to a judgment in personam,
if he be not present within the territory of
the forum, he have certain minimum contacts
with it such that the maintenance of the suit
does not offend 'traditional notions of fair
play and substantial justice.'
Id. at 316, 90 L. Ed. at 102 (citation omitted). The concept of
“minimum contacts” furthers the following two goals: (1) “it
safeguards the defendant from being required to defend an action in
a distant or inconvenient forum,” and (2) “it prevents a state from
escaping the restraints imposed upon it by its status as a coequal
sovereign in a federal system.” Miller, 313 N.C. at 477, 329
S.E.2d at 665 (citing World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 62 L. Ed. 2d 490 (1980).
In Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283 (1958),
the United States Supreme Court held that the unilateral activityof those claiming a relationship with a nonresident defendant may
not, without more, satisfy due process requirements. Rather,
[I]t is essential in each case that there be
some act by which the defendant purposefully
avails itself of the privilege of conducting
activities within the forum State, thus
invoking the benefits and protections of its
laws.
Id. at 253, 2 L. Ed. 2d at 1298. “This 'purposeful availment'
requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of 'random,' 'fortuitous,' or
'attenuated' contacts.” Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475, 85 L. Ed. 2d 528, 542 (1985). However, personal
jurisdiction is constitutionally permissible “where the contacts
proximately result from actions by the defendant himself[.]” Id.
The factors to be considered in determining whether
constitutionally sufficient minimum contacts exist include:
(1) the 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 of the parties.
Filmar Racing Inc. v. Stewart, 141 N.C. App. 668, 672, 541 S.E.2d
733, 737 (2001). The United States Supreme Court has also
indicated that a factor to be considered is whether the
relationship between the defendant and the forum state is such that
the defendant “should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,
62 L. Ed. 2d 490, 501 (1980).
In the instant case, the house in Moore County was purchased
jointly by plaintiff and defendant. Defendant's name appears onboth the deed and the home mortgage. Defendant testified that he
was convinced that North Carolina was the best place for his
daughter and stepdaughter to receive an education. Based on this
competent evidence, the trial court found as fact that one reason
defendant purchased the house in North Carolina was to allow his
daughter to be schooled here. Following their move to North
Carolina, defendant visited plaintiff and the girls at least once
a month for two years, staying in the house for three or more days
at a time. During this period, plaintiff and defendant were still
married. Thus, we agree with the trial court's characterization of
the house in Moore County as a “marital residence.” In addition to
visiting his family in this State, defendant maintained a
membership in Moore County Hounds, a social and sporting
association, and participated in the association's activities in
Moore County. Finally, the evidence shows that defendant further
benefitted from his connections with this State by using the equity
line of credit on the Moore County house for business purposes.
These facts support the conclusion that defendant's contact
with this State is the proximate result of his own actions and not
the unilateral activity of plaintiff moving to North Carolina with
defendant's daughter. In addition, defendant's contacts with this
State are sufficiently related to the instant action (both
defendant's contacts and the instant action arise out of the family
relationship shared by defendant, plaintiff and the parties'
daughter) to support the conclusion that defendant should have
reasonably anticipated being subjected to suit in this State inrelation to those contacts. We further find that North Carolina
has an important interest in the resolution of plaintiff's claims
in the instant action, since plaintiff and the parties' daughter
currently reside in this State. Finally, in light of the nature of
his contacts with this State, defendant has failed to show how the
exercise of personal jurisdiction over him would be so unfair and
inconvenient as to rise to the level of a due process violation.
Defendant relies on our Supreme Court's decision in Miller to
support his contention that he does not possess sufficient minimum
contacts with this State to permit the exercise of personal
jurisdiction over him. In Miller, the evidence showed that the
nonresident defendant married the plaintiff in Illinois in 1967 and
the parties' daughter was born in Illinois in 1968. Following the
parties' separation in 1971, the plaintiff took custody of the
daughter, and in late 1972 or early 1973 the plaintiff and daughter
moved to North Carolina. In January 1973, the defendant began
mailing child support payments to this State, and between 1973 and
1981, the defendant visited his daughter in North Carolina
approximately six times. The defendant in Miller never lived in
North Carolina or purchased property here. Based on these facts,
the Court concluded that the daughter's presence in this State was
solely the result of the plaintiff's decision as the custodial
parent to live here with the child. Miller, 313 N.C. at 479, 329
S.E.2d at 666. The Court further concluded that the defendant had
not purposefully availed himself of the benefits and protections ofthe laws of this State and held that the exercise of personal
jurisdiction over the defendant would violate due process. Id.
Defendant's reliance on Miller is misplaced. The quality and
nature of defendant's contacts with North Carolina in the instant
case far exceed those of the nonresident defendant in Miller.
Defendant purchased property in this State in order to allow his
daughter to benefit from the education provided by this State's
public school system, whereas the defendant in Miller never
purchased any property here. Further, defendant's visits to this
State following the purchase of the house in Moore County occurred
while he and plaintiff were still married and the two of them held
joint custody of their daughter. In Miller, the defendant's visits
to this State occurred after the parties had separated, the
plaintiff had assumed custody of the parties' minor child, and the
plaintiff had moved the minor child to North Carolina. For these
reasons, we distinguish the instant case from Miller.
In sum, we conclude that the record supports the conclusion
that defendant purposefully availed himself of the benefits and
protections of this State's laws. Defendant's contacts with North
Carolina clearly exceed the “minimum contacts” required for the
exercise of personal jurisdiction such that he should have
reasonably been expected to be haled into court in this State.
Thus, defendant's right to due process is not violated by this
State's exercise of personal jurisdiction over him for purposes of
plaintiff's action in the instant case. For the reasons stated herein, we affirm the trial court's
denial of defendant's motion to dismiss.
Affirmed.
Judges WALKER and McGEE concur.
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