A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-222


Filed: 20 August 2002


v .                         Mecklenburg County
                            No. 00 CVD 13889

    Appeal by defendant from order signed 21 December 2000 by Judge Jane V. Harper in District Court, Mecklenburg County. Heard in the Court of Appeals 6 December 2001.

    R. Lee Myers and Timothy M. Stokes for plaintiff-appellee.

    Joe T. Millsaps for defendant-appellant.

    McGEE, Judge.

    Donna I. Newlands (plaintiff) and Francis A. Newlands (defendant) were married on 12 June 1965. Plaintiff and defendant separated on 16 November 1992 and on that date executed a Separation and Property Settlement Agreement (separation agreement). The separation agreement stated in part:
            8. Equitable Distribution. This [separation agreement] is intended to define the manner in which the marital property shall be distributed between the parties under . . . N.C.G.S. § 50-20 et. seq. The parties agree and stipulate that there has been a full, frank and exhaustive discussion of the assets and the liabilities held by each party and by themselves jointly, and they do hereby waive and relinquish any further right to make any additional inquiry or investigation into the nature, extent or value of any assets which are or may be owned or held by the otherparty. The distribution of the marital property as defined in this document is just, fair and reasonable and shall constitute an equitable distribution of the marital property in satisfaction of [N.C.G.S.] § 50-20 et. seq. Each party releases, relinquishes and renounces any additional or further claim for equitable distribution of the marital property, and either party may plead this document in bar of or as a defense to any further claim for equitable distribution. This document is executed pursuant to the provisions of N.C.G.S. § 50-20(b). Additionally, each party recognizes that this is a full, final and permanent settlement of all of their marital property rights which shall remain effective . . . . The parties further agree that no court shall have any authority to modify or change in any respect the terms and conditions of this equitable distribution of marital property.

            . . . 

            21. Disclosure and Inducement. Each party warrants to the other that he or she has made a full and complete disclosure as to his or her financial status. Each has informed the other as to all assets, real and personal, tangible and intangible, in which each party has any interest, legal or equitable. FURTHER, EACH HAS MADE DISCLOSURE AS TO THE REASONABLE WORTH OR MARKET VALUE OF SUCH ASSETS. These assets include interest in pension, profit sharing and/or retirement benefits; all real estate; all business interests; all life insurance; all medical, casualty, disability or other insurance coverage; all cash or other deposit accounts; all stocks, bonds and/or mutual funds; all tangible, personal property . . . . Further, each has made a full and complete disclosure as to all income or other funds received by each from any source whatsoever. The disclosures made by each are recognized as being material and are made to induce the other to execute this Agreement. In the event of a later determination of any material misrepresentation or omission with respect to the financial condition as outlined above, then such material misrepresentation or omission may be the basis for a determinationthat this Agreement is null and void.

In the separation agreement, plaintiff and defendant also agreed to execute a Qualified Domestic Relations Order (QDRO) transferring a portion of defendant's tax-deferred savings plan to plaintiff.
    Plaintiff filed a complaint on 30 November 1992 requesting equitable distribution of the marital property pursuant to N.C. Gen. Stat. § 50-20 et. seq. The trial court entered a QDRO on 14 December 1992. The parties were divorced on 4 August 1997. Plaintiff filed a notice of equitable distribution hearing on or about 19 January 2000. Defendant filed a motion to dismiss plaintiff's equitable distribution claim on 8 May 2000. The trial court granted defendant's motion to dismiss in an order dated 2 June 2000, which states in relevant part:
            THIS CAUSE came on for hearing before the Honorable Jane V. Harper, District Court Judge Presiding . . . on defendant's Motion to Dismiss for laches and failure to comply with the Rules of Court.

. . .

            The Court having reviewed the file and having heard arguments of counsel observes that the Complaint, Summons and a Consent Qualified Domestic Relations Order were filed prior to December 12, 1992 by plaintiff's counsel. Thereafter, there was no activity in the file for a period in excess of seven years, at which time plaintiff gave notice of an Equitable Distribution Pretrial Hearing scheduled for Jan. 18, 2000.

            NOW, THEREFORE, in the discretion of the Court defendant's Motion to Dismiss is allowed and plaintiff's claim is dismissed except for the Consent QDRO referenced above.

    Plaintiff appealed the 2 June 2000 order to our Court and wevacated the order of the trial court and remanded the matter for appropriate findings of fact in an unpublished opinion, Newlands v. Newlands, 148 N.C. App. 215, 560 S.E.2d 244 (2001)(Newlands I).
    Plaintiff filed the complaint in the action before us on 12 September 2000 (Newlands II) alleging that defendant breached the terms of the separation agreement by failing to disclose to plaintiff "the value of one or more of the IBM Pension or Retirement accounts held by or on behalf of the [d]efendant by IBM." As a result of the alleged breach, plaintiff requested that the trial court rescind and set aside the separation agreement and declare the separation agreement null and void. Plaintiff also claimed she was entitled to equitable distribution of marital property pursuant to N.C. Gen. Stat. § 50-20, et. seq. and requested the trial court to divide the marital property.
    Defendant was served with copies of the summons and complaint at his residence in Boynton Beach, Florida on 19 September 2000. In response to plaintiff's complaint, defendant filed a motion to dismiss on 11 October 2000 alleging (1) lack of personal jurisdiction, (2) lack of subject matter jurisdiction, and (3) failure to state a claim for relief.
    Plaintiff filed a voluntary dismissal without prejudice of her claim for equitable distribution on 14 November 2000. Following a hearing, the trial court signed an order dated 21 December 2000 denying defendant's motion to dismiss, concluding that the trial court had both personal and subject matter jurisdiction and that the complaint stated a claim for relief. Defendant appeals fromthis order.


    We must first determine whether this appeal is properly before our Court. "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). An interlocutory order is not immediately appealable, unless otherwise authorized by statute. Id. The purpose of this rule "is to prevent fragmentary, premature, and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division." Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978).
    Generally, an order denying a motion to dismiss is interlocutory and therefore not immediately appealable. RPR & Assocs. v. State, 139 N.C. App. 525, 527, 534 S.E.2d 247, 249 (2000) (citation omitted). Nevertheless, when denial of a motion to dismiss affects a substantial right, a party has a right to immediate appeal. Summey v. Barker, 142 N.C. App. 688, 689, 544 S.E.2d 262, 264 (2001) (citing N.C. Gen. Stat. § 1-277(a) and 7A- 27(d)(1)).
    In the case before us, defendant contends the trial court erred in denying his motion to dismiss because the trial court lacked personal jurisdiction. A denial of a motion to dismissbased upon lack of personal jurisdiction is immediately appealable pursuant to N.C. Gen. Stat. § 1-277(b) (1999). Defendant's appeal in this case, based upon lack of personal jurisdiction, is therefore immediately appealable.
    Defendant also contends the trial court erred in denying his motion to dismiss because the trial court lacked subject matter jurisdiction. Ordinarily, an "order denying a motion to dismiss for lack of subject matter jurisdiction is interlocutory and not immediately appealable." Shaver v. Construction Co., 54 N.C. App. 486, 487, 283 S.E.2d 526, 527 (1981). However, when a defendant "challenge[s] the trial court's power to exercise personal jurisdiction over him, we must, at [the same] time, decide the issue he has raised concerning subject matter jurisdiction." Church v. Carter, 94 N.C. App. 286, 288, 380 S.E.2d 167, 168 (1989) (citing N.C. Gen. Stat. § 1-75.4 (1983), which states that subject matter jurisdiction is a prerequisite to a court exercising personal jurisdiction). Accordingly, in the case before us, because defendant challenged both subject matter and personal jurisdiction, defendant's appeal on the issue of subject matter jurisdiction is also properly before this Court.
    Finally, defendant contends the trial court erred in denying his motion to dismiss because plaintiff failed to state a claim for relief. An order denying a motion to dismiss for failure to state a claim is interlocutory and not immediately appealable. Teachy v. Coble Dairies, Inc., 306 N.C. 324, 326, 293 S.E.2d 182, 183 (1982). If an appeal of right does not lie from an interlocutory order,this Court in its discretion may nevertheless entertain an appeal from that decree by the issuance of a writ of certiorari. N.C. Gen. Stat. § 7A-32(c) (1999); N.C.R. App. P. 21. In the present case, defendant has filed a petition for a writ of certiorari asking this Court to review the denial of his motion to dismiss for plaintiff's failure to state a claim. In the interest of judicial economy, we elect to do so in order to hear defendant's appeal in its entirety.

    Defendant first argues that the trial court erred in denying his motion to dismiss because the trial court did not have subject matter jurisdiction.
    N.C. Gen. Stat. § 1-294, states that
        [w]hen an appeal is perfected . . . it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.

N.C. Gen. Stat. § 1-294 (1999).
     Defendant argues essentially that the issues in the case now before us are the same issues determined by our Court in Newlands I. He further argues that in this case, plaintiff is seeking to set aside the separation agreement in order to pursue an equitable distribution of marital property, which claim was dismissed by the trial court in Newlands I. According to defendant, plaintiff's voluntary dismissal of her claim for equitable distribution in this case does not alter the fact that the matters embraced in NewlandsI and in the case before us are the same. Defendant argues that the issues in Newlands II are the same "matter[s] embraced in the judgment" in Newlands I, and the appeal in Newlands I stayed all further proceedings by the trial court, pursuant to N.C.G.S. § 1- 294. We disagree.
    The trial court's order in Newlands I addressed issues related to defendant's motion to dismiss plaintiff's notice of an equitable distribution hearing due to laches and failure to comply with local rules of court. In the complaint filed in the case now before us, plaintiff alleges that defendant violated the terms of the parties' separation agreement. Plaintiff asked the trial court to "rescind and set aside the [separation agreement] and to declare [the] same null and void" and to make an equitable distribution of marital property. Plaintiff later filed a voluntary dismissal of her claim for equitable distribution. Thus, in the case before us, there is no claim by plaintiff for equitable distribution pursuant to N.C. Gen. Stat. § 50-20 et. seq. There is nothing in the Newlands I order showing that the validity of the separation agreement was previously determined by the trial court.
    The trial court, in determining that it had subject matter jurisdiction in Newlands II, did not improperly proceed on a matter included within the action then pending before this Court. The trial court therefore correctly found it had subject matter jurisdiction.

    Defendant also argues that the trial court did not havepersonal jurisdiction over him because when he was served with the summons and complaint in the present case, he had been divorced from plaintiff for over three years and was a "bona fide resident of the State of Florida."
    Upon review of an order determining personal jurisdiction, we must determine if the trial court's findings of fact are supported by competent evidence. Replacements, Ltd. v. Midwesterling, 133 N.C. App. 139, 140, 515 S.E.2d 46, 48 (1999). In this case, the trial court found in relevant part that
            2. Defendant is a resident of the State of Florida. . . .     3. The complaint alleges that the parties were formerly husband and wife and resided together in the State of North Carolina. In 1992, while residing in North Carolina, they entered into a [separation agreement] which was executed here and which by its terms was to be governed by North Carolina law. They were subsequently divorced by a judgment of this court.

The trial court concluded it had personal jurisdiction over defendant.
    Our State's long-arm statute, N.C. Gen. Stat. § 1-75.4 (1999), "lists twelve 'circumstances' under which a court, having subject matter jurisdiction, will also acquire personal jurisdiction." Church, 94 N.C. App. at 290, 380 S.E.2d at 169. Defendant argues that plaintiff must comply with the requirements of N.C.G.S. § 1- 75.4(12), which states that:
        [a] court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action . . . under . . . the following circumstances:
. . .

        (12) Marital Relationship. - In any action under Chapter 50 that arises out of the marital relationship within this State, notwithstanding subsequent departure from the State, if the other party to the marital relationship continues to reside in this State.

N.C. Gen. Stat. § 1-75.4(12) (1999). Defendant argues that because plaintiff took a voluntary dismissal of her equitable distribution claim, no statutory basis for long-arm jurisdiction exists under N.C. Gen. Stat. § 1-75.4(12) because plaintiff's action was not brought under Chapter 50 of our General Statutes.
     Defendant also argues that "[a]lthough the contract of separation was signed in North Carolina, once divorce ensues and Defendant departs this jurisdiction, no statute authorizes jurisdiction by the [trial court] over [defendant], and Plaintiff is required to go to Florida to obtain personal jurisdiction over Defendant." We disagree.
    The trial court's findings of fact supporting its conclusion that the trial court had personal jurisdiction over defendant rely on the separation agreement, and a proper statutory basis exists for plaintiff to assert personal jurisdiction over defendant based upon the separation agreement. Subsection 5(c) of our long-arm statute states that our courts have jurisdiction over an action which:
        [a]rises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value[.]
N.C. Gen. Stat. § 1-75.4(5)(c) (1999).
    "A separation agreement is enforceable at law as is any other contract." Pope v. Pope, 38 N.C. App. 328, 330, 248 S.E.2d 260, 261 (1978). Because "a separation agreement is treated just like any other contract under North Carolina law and since G.S.1- 75.4(5)(c) applies to 'Local . . . Contracts,' it is clear that the statute governs separation agreements as well as purely commercial contracts." Id.
    We hold that the trial court's findings are supported by competent evidence in the record and the trial court did not err in asserting personal jurisdiction over defendant.
    Defendant also argues that N.C. Gen. Stat. § 50-11 destroyed the right of plaintiff to serve defendant with a complaint for equitable distribution. N.C. Gen. Stat. § 50-11 reads in part:
        (a) After a judgment of divorce . . . all rights arising out of the marriage shall cease and determine except as hereinafter set out[.]

. . .

        (e) An absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce[.]

N.C. Gen. Stat. § 50-11(a), (e) (1999). However, as stated above, this is not an action for equitable distribution, but instead an action to declare the separation agreement invalid. Defendant's argument is without merit.


    Finally defendant contends the trial court erred in denyinghis motion to dismiss because plaintiff failed to state a claim for relief. N.C.G.S. § 1A-1, Rule 12(b)(6).
    Upon review of the trial court's denial of defendant's motion to dismiss, we must determine "whether, as a matter of law, the complaint, treating its allegations as true, is sufficient to state a claim upon which relief may be granted." McCarn v. Beach, 128 N.C. App. 435, 437, 496 S.E. 2d 402, 404, disc. review denied, 348 N.C. 73, 505 S.E.2d 874 (1998).
    As previously stated, plaintiff's outstanding claim is based upon breach of contract. To assert a claim for breach of contract, the claimant must show there is a valid contract and the terms of that contract were breached. Lake Mary Ltd. Part. v. Johnston, 145 N.C. App. 525, 536, 551 S.E.2d 546, 554, disc. review denied, 354 N.C. 363, 557 S.E.2d 538 (2001). Taking plaintiff's allegations as true, she has alleged sufficient facts to establish a claim upon which relief can be granted. In her complaint, plaintiff alleged the parties executed a separation agreement, and that defendant failed to fully disclose to her the value of certain accounts, as required by the terms of the separation agreement.
    Defendant does not dispute plaintiff's underlying breach of contract claim. Instead, he contends that res judicata bars the present action, because in Newlands I and II "the parties are the same; the issues are the same, and the judgment is mutually binding and estops either party from raising the precise issue a second time."
    Res judicata is an affirmative defense that is properly raisedin a pleading to a preceding pleading. N.C. Gen. Stat. § 1A-1, Rule 8(c) (1999). However, if a "'complaint discloses an unconditional affirmative defense which defeats the claim asserted or pleads facts which deny the right to any relief on the alleged claim it will be dismissed.'" Brown v. Brown, 21 N.C. App. 435, 437, 204 S.E.2d 534, 536 (1974) (quoting Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970)).
    As we have previously determined, Newlands I embraced matters concerning plaintiff's request for equitable distribution, her notice of equitable distribution hearing, and defendant's motion to dismiss such notice of hearing. In the case now before us, plaintiff seeks to rescind the separation agreement entered into between the parties. The causes of action are not the same and the trial court did not err in finding plaintiff had stated a claim for relief.
    The trial court did not err in denying defendant's motion to dismiss for failure to state a claim upon which relief can be granted, because plaintiff's complaint properly states a claim for breach of contract and is not barred by res judicata. Defendant's assignment of error is overruled.
    The 21 December 2000 order of the trial court is affirmed.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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