Hopkins v. Hopkins

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
 -13-
(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.
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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.
 -15-
REVERSED AND REMANDED.

Judge BRYANT and Judge STEPHENS concur.

Report per Rule 30(e).