Catawba County ex rel. Rackley v. Loggins

IN THE SUPREME COURT OF NORTH CAROLINA

No. 152PA16

Filed 29 September 2017
CATAWBA COUNTY, by and through its CHILD SUPPORT AGENCY, ex rel.
SHAWNA RACKLEY
v.
JASON LOGGINS

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 784 S.E.2d 620 (2016), affirming an order

entered on 29 December 2014 by Judge Gregory R. Hayes in District Court, Catawba

County. Heard in the Supreme Court on (11 April 2017).

David W. Hood for plaintiff-appellant.

Blair E. Cody, III for defendant-appellee.

Joshua H. Stein, Attorney General, by John F. Maddrey, Solicitor General,
Gerald K. Robbins, Special Deputy Attorney General, and Benjamin Kull,
Assistant Attorney General, for North Carolina Department of Health and
Human Services, amicus curiae.

MORGAN, Justice.

I. Background and Procedural History

In this appeal we consider whether a district court has jurisdiction to modify a

child support order without a party filing a motion to modify asserting that there is

a change in circumstances. The Court of Appeals concluded that the district court
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did not have jurisdiction because Catawba County, by and through its Child Support

Agency, ex rel. Shawna Rackley (plaintiff) failed to comply with procedural mandates

to file a motion to modify the child support order at issue as required by N.C.G.S. §

50-13.7(a) (2015). We hold that the district court maintained continuing jurisdiction

to modify the child support order and that plaintiff’s failure to file a motion to modify

the child support order did not divest the district court of jurisdiction. Accordingly,

we reverse and remand the Court of Appeals decision.

On 15 February 1999, the District Court in Catawba County entered a

Voluntary Support Agreement and Order (VSA) under which Jason Loggins

(defendant) agreed to pay “$0.00” in child support for his two children with Shawna

Rackley (Ms. Rackley). Additionally, starting 1 March 1999, defendant was to

reimburse the State $1,996.00 for public assistance paid on behalf of his children.

Defendant was also required to provide health insurance for the minor children

through his employer or when it was available at a reasonable cost.

Defendant failed to reimburse the State as required, and on 19 October 2000

plaintiff filed a motion to show cause. The district court ordered defendant to appear,

but he failed to do so. Defendant was arrested and later released on a $500.00 cash

bond that was allocated to his arrearage. After hearing the matter in January 2001,

the district court found that defendant was employed at Carolina Hardwoods earning

$9.95 per hour, and was able to comply with the 1999 VSA. The court ordered

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defendant to make $50.00 monthly payments towards his then-arrearages of

$1,165.12.

Subsequently, a second VSA titled “Modified Voluntary Support Agreement

and Order” was signed by defendant on 25 June 2001. This agreement did not

reference the original VSA or the 1999 order, nor did it show that the district court

established defendant’s paternity in 1999. The parties did attach a child support

worksheet stating defendant had a monthly gross income of $1,724.66 and

recommending $419.00 for his monthly child support obligation.1 The 2001 VSA was

approved by the court and entered on 28 June 2001. This order is the basis of all

controversy on appeal. In the 2001 VSA, defendant agreed to pay $419.00 per month

in child support starting 1 July 2001 and to reimburse the State $422.78 for public

assistance given to his children. In addition, defendant agreed to provide health

insurance to his children through his then-employer, Crown Heritage, Inc. Unlike

the 1999 VSA, the 2001 VSA contains no modification provision.

Throughout the following years, defendant failed to comply with the 2001 VSA.

Accordingly, the trial court entered consent contempt orders on 20 November 2003,

21 July 2005 and 25 January 2007. Each time defendant admitted to being in civil

1The parties attached “Work Sheet A,” Form “AOC-CV-627 Rev. 10/98” of the North
Carolina Child Support Guidelines. This is the form used to calculate child support when one
parent (or a third party) has sole physical custody of all children for whom support is being
determined. This form does not contain a provision referencing a change in circumstances.
Thus, in the 2001 Order, the trial court did not find that there were changed circumstances.

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contempt for his failure to pay amounts due under the 2001 VSA. By 2007, the

amount defendant owed totaled $16,422.28. In the 2007 consent order, the trial court

ordered defendant to make monthly child support payments totaling $479.00 with

$60.00 going towards arrears. On 5 April 2007, the district court concluded defendant

was in compliance with the 25 January 2007 order and determined that his

arrearages were $15,572.80. The district court ordered defendant to continue his

monthly child support payments of $419.00 plus $60.00 towards arrears. Eventually,

defendant again failed to pay the child support ordered by the court.

On 7 April 2011, defendant filed, pro se, a motion to modify the 2007 consent

order. Defendant stated there was a change in circumstances because he “draw[s]

unemployment, [and his] kids [ages 17 and 18] have quit school.” The district court

heard the matter on 11 August 2011. Ms. Rackley failed to appear. On 15 September

2011 the district court found a change in circumstances, noting that “[d]efendant was

drawing unemployment benefits, since has obtained fulltime employment. Oldest

child . . . has emancipated according to [N.C.G.S. § 50-13.4(c)].” Based on the child

support guidelines, the district court reduced defendant’s monthly child support

obligation to $247.00 and found his arrears to be $6,640.75.

On 13 March 2014, defendant, now represented by counsel, moved the district

court pursuant to N.C.G.S. § 1A-1, Rule 60, to set aside the 2001 VSA as void.

Defendant contended that “prior to June 28, 2001 there was [sic] not any motions

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filed by [Ms. Rackley] or on her behalf to modify the ‘then’ existing child support

obligation [of $0.00 under the 1999 VSA].” A hearing was held on 31 July 2014,

during which defendant asserted that the 1999 VSA was a permanent order and that

the trial court did not have jurisdiction to modify it without a motion in the cause by

plaintiff and a showing of a change in circumstances. He argued that the 2001 VSA

was void and, as a result, unenforceable. Plaintiff’s counsel conceded, “There’s no

indication that [the 1999 VSA] was a temporary order. We use the colloquial term

‘permanent’ although every order can be modified, but I would agree that that’s what

we normally refer to as a permanent order rather than a temporary order.” Following

the hearing, defense counsel tendered a draft order to the district court without

serving it upon plaintiff’s counsel. The district court entered an order on 18 December

2014 granting defendant’s motion but a few days later set aside that order because it

contained “errors and was not presented following approved procedure” in that

defendant did not serve the proposed order on plaintiff before tendering it to the court.

On 29 December 2014, the district court entered a second order granting

defendant’s Rule 60 Motion. The district court found that it did not have jurisdiction

to enter the 2001 VSA because there was no precipitating motion filed by plaintiff or

on her behalf, nor was there any proof of a change in circumstances; therefore, the

order resulting from the 2001 VSA was void. Plaintiff filed a timely notice of appeal.

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In the Court of Appeals, plaintiff argued, in pertinent part, that the district

court erroneously concluded that a motion to modify a child support obligation must

precede a modification order. The Court of Appeals reasoned that the plain language

of N.C.G.S. § 50-13.7(a) “requires a ‘motion in the cause and a showing of changed

circumstances’ as a necessary condition for the [district] court to modify an existing

support order.” Catawba County ex rel. Rackley v. Loggins, ___ N.C. App. ___, ___,

784 S.E.2d 620, 625-26 (2016) (quoting N.C.G.S. § 50-13.7(a) (2015)). The Court of

Appeals recognized that a district court is without authority to sua sponte modify an

existing support order. Id. at ___, 784 S.E.2d at 626 (quoting Royall v. Sawyer, 120

N.C. App. 880, 882, 463 S.E.2d 578, 580 (1995)). Therefore, according to the Court of

Appeals, it was “impossible to enforce the second [VSA] and order because the trial

court did not have jurisdiction to accept the second [VSA] and enter the modified

order.” Id. at ___, 784 S.E.2d at 626 (citation omitted).

II. Standard of Review

Rule 12(b)(1) of the Rules of Civil Procedure allows for dismissal based upon a

trial court’s lack of jurisdiction over the subject matter of the claim. N.C.G.S. § 1A-

1, Rule 12(b)(1) (2015). We review the decision of a trial court to dismiss an action

for lack of subject matter jurisdiction de novo. Harris v. Matthews, 361 N.C. 265, 271,

643 S.E.2d 566, 570 (2007); see Baumann-Chacon v. Baumann, 212 N.C. App. 137,

139, 710 S.E.2d 431, 433 (2011) (applying a de novo standard of review to a district

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court’s decision to dismiss a plaintiff’s claims for child support for lack of subject

matter jurisdiction).

III. Analysis

Plaintiff contends in the instant case that the trial court retained jurisdiction

to modify the VSA notwithstanding plaintiff’s failure to file a motion to modify the

VSA as addressed in N.C.G.S. § 50-13.7(a). We agree that the trial court retained

jurisdiction to modify the VSA because: (1) the court maintained continuing

jurisdiction over the child support issue; (2) the plain language of N.C.G.S. § 50-

13.7(a) does not create a jurisdictional prerequisite that would divest the district

court of jurisdiction; (3) the legislative history of this statutory provision suggests

that the General Assembly did not intend to create a jurisdictional prerequisite; (4)

the provision requiring a motion to modify a child support order to be filed so as to

prompt a district court’s review of an existing child support order is directory rather

than mandatory, and therefore did not deprive the district court of jurisdiction; and

(5) the VSA filed by plaintiff satisfied the purpose of N.C.G.S. § 50-13.7(a).

A. District Court Maintained Continuing Jurisdiction

The district court maintained continuing jurisdiction to modify the VSA.

“Jurisdiction is ‘[t]he legal power and authority of a court to make a decision that

binds the parties to any matter properly brought before it.’ ” In re T.R.P., 360 N.C.

588, 590, 636 S.E.2d 787, 789-90 (2006) (quoting Black’s Law Dictionary 856 (7th ed.

1999)). The court must have personal jurisdiction and, relevant here, subject matter

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jurisdiction “or ‘[j]urisdiction over the nature of the case and the type of relief sought,’

in order to decide a case.” Id. at 590, 636 S.E.2d at 790 (quoting Black’s Law

Dictionary at 596). “The legislature, within constitutional limitations, can fix and

circumscribe the jurisdiction of the courts of this State.” Bullington v. Angel, 220

N.C. 18, 20, 16 S.E.2d 411, 412 (1941). “Where jurisdiction is statutory and the

Legislature requires the Court to exercise its jurisdiction in a certain manner, to

follow a certain procedure, or otherwise subjects the Court to certain limitations, an

act of the Court beyond these limits is in excess of its jurisdiction.” Eudy v. Eudy,

288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975) (citations omitted), overruled on other

grounds by Quick v. Quick, 305 N.C. 446, 457-58, 290 S.E.2d 653, 661 (1982).

Without regard to the amount in controversy, the district court conducts “the

trial of civil actions and proceedings for annulment, divorce, equitable distribution of

property, alimony, child support, child custody and the enforcement of separation or

property settlement agreements between spouses, or recovery for the breach thereof.”

N.C.G.S. § 7A-244 (2015). Subdivision 50-13.7(a) permits a child support order to be

“modified or vacated at any time, upon motion in the cause and a showing of changed

circumstances by either party.” Id. § 50-13.7(a) (2015). Additionally, “[a] judicial

decree in a child custody and support matter is subject to alteration upon a change of

circumstances affecting the welfare of the child and, therefore, is not final in nature.”

Stanback v. Stanback (Stanback II), 287 N.C. 448, 456, 215 S.E.2d 30, 36 (1975). As

a result, “the jurisdiction of the court entering such a decree continues as long as the

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minor child whose custody is the subject of the decree remains within its jurisdiction.”

Id. at 456, 215 S.E.2d at 36 (citing Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537

(1973), cert. denied, 415 U.S. 918 (1974), and Stanback v. Stanback, 266 N.C. 72, 145

S.E.2d 332 (1965)); see also N.C.G.S. § 50-13.5(f) (2015) (“An action or proceeding in

the courts of this State for custody and support of a minor child may be maintained

in the county where the child resides or is physically present or in a county where a

parent resides . . . .”).

Here, the district court in Catawba County ruled on the original VSA in this

action. According to the principles specified above, the district court thereafter

retained jurisdiction over further proceedings, including modifications to the VSA.

As reasoned by this Court in Stanback II, unless the district court “was somehow

divested of its continuing jurisdiction, it was the only court which could modify the

earlier judgment upon a motion in the cause and a showing of a change of

circumstances.” 287 N.C. at 456, 215 S.E.2d at 36 (citations omitted). At the time

the 2001 VSA was approved, all parties resided in North Carolina. As a result, “the

jurisdiction of the [district court] continue[d] as long as the minor child whose custody

is the subject of the decree remain[ed] within its jurisdiction.” Id. at 456, 215 S.E. 2d

at 36. No circumstances are present here that would divest the district court of its

jurisdiction to modify the VSA. See id. at 456, 215 S.E. 2d at 36; Story v. Story, 221

N.C. 114, 115-16, 19 S.E.2d 136, 137-38 (1942) (concluding that while an order

requiring the husband to make monthly payments for child support was a consent

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judgment, the court had jurisdiction to hear the wife’s subsequent motion for

modification of the order, thereby allowing the court to award permanent custody of

the child to the wife and to increase the husband’s monthly payments); Massey v.

Massey, 121 N.C. App. 263, 273, 465 S.E.2d 313, 319 (1996) (“In view of our holding

affirming the trial court’s voiding of the parties’ Stipulation of Dismissal and because

of the court’s continuing jurisdiction acquired in consequence of its rendering the

original child custody and support order, . . . we discern no abuse of discretion on the

part of the trial court in its order of consolidation and no injury or prejudice suffered

by [the] defendant.”); Jackson v. Jackson, 68 N.C. App. 499, 501-02, 315 S.E.2d 90,

91 (1984) (holding that because the district court originally had jurisdiction over the

child custody and support dispute, it had continuing jurisdiction to rule on a

subsequent motion filed by the defendant for custody and support and sequestration

of the marital home for the children’s use and benefit). Thus, the district court

maintained continuing jurisdiction to modify the 2001 VSA.

B. Plain Meaning of the Statute Does Not Impose a Jurisdictional
Prerequisite

Rules of statutory construction confirm the district court’s jurisdiction. “It is

well settled that ‘[w]here the language of a statute is clear and unambiguous, there

is no room for judicial construction and the courts must construe the statute using

its plain meaning.’ ” In re Estate of Lunsford, 359 N.C. 382, 391-92, 610 S.E.2d 366,

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372 (2005) (emphases added) (quoting Burgess v. Your House of Raleigh, Inc., 326

N.C. 205, 209, 388 S.E.2d 134, 136 (1990)).

In In re D.S., 364 N.C. 184, 185, 694 S.E.2d 758, 759 (2010) the defendant, a

fifth-grade student, was charged as a juvenile for touching a classmate “multiple

times on her buttocks and between her legs with a straw-like candy, known as Pixy

Stix.” A juvenile court counselor filed a juvenile delinquency petition against the

defendant alleging simple assault. Id. at 185, 694 S.E.2d at 759. Over a month later,

the juvenile court counselor filed a second petition alleging that the defendant had

also committed sexual battery during the same incident. Id. at 185-86, 694 S.E.2d

at 759. On appeal the defendant argued, and the Court of Appeals agreed, that the

second petition was not filed within the time period mandated by N.C.G.S. § 7B-1703,

the pertinent statute, and therefore the district court lacked subject matter

jurisdiction over the sexual battery allegation. Id. at 186, 694 S.E.2d at 759-60. In

reversing the decision of the Court of Appeals, this Court reasoned that

[o]n its face section 7B-1703 does not mention
jurisdiction, nor does it indicate that a [juvenile court
counselor’s] failure to meet the timing requirements
contained therein divests the district court of subject
matter jurisdiction. We believe that had the legislature
intended section 7B-1703 to implicate subject matter
jurisdiction, the legislature would have either included
these requirements in Chapter 7B, Article 16 or expressly
stated so in section 7B-1703 itself. Because the legislature
did neither, we conclude that it did not intend for the
section 7B-1703 timelines to function as prerequisites for
district court jurisdiction over allegedly delinquent
juveniles. We note that this decision is consistent with the

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conclusions reached in prior North Carolina appellate
decisions that have addressed Chapter 7B timeline
requirements and jurisdiction, particularly in the contexts
of abuse, neglect, and dependency and termination of
parental rights.

Id. at 193-94, 694 S.E.2d at 764 (internal citation omitted).

While the subject matter of In re D.S. is distinguishable, the essence of this

Court’s reasoning is applicable in the case sub judice. Subsection 50-13.7(a) states

that a child support order can be “modified or vacated at any time, upon motion in

the cause and a showing of changed circumstances by either party.” N.C.G.S. § 50-

13.7(a). Just as with the controlling statute in In re D.S., subsection 50-13.7(a) does

not indicate that a party’s failure to file a motion divests the court of jurisdiction.

There is no language in either law establishing jurisdictional consequences for failure

to follow the statutory provisions; the statutory language is clear and unambiguous

and the plain meaning of each statute imposes no jurisdictional prerequisites. As we

reasoned in In re D.S. regarding the statute at issue there, the legislature here could

have set forth requirements that would affect jurisdiction in N.C.G.S. § 50-13.7(a).

Compare In re A.R.G., 361 N.C. 392, 398-99, 646 S.E.2d 349, 353 (2007) (holding that

while the county department of social services failed to comply with the applicable

statute requiring a juvenile’s address to be included in a petition alleging that a child

was a neglected and dependent juvenile, “[n]othing in the statute suggests that the

information required is jurisdictional” and stating that to hold otherwise “would

elevate form over substance”), with In re T.R.P., 360 N.C. at 591, 636 S.E.2d at 790-

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91 (concluding that a petition filed by the county department of social services

alleging that a child was a neglected juvenile was not verified as required by statute

and therefore, rendered the judgment void because “verification of the petition in an

abuse, neglect, or dependency action . . . is a vital link in the chain of proceedings

carefully designed to protect children at risk on one hand while avoiding undue

interference with family rights on the other”). We decline to create a jurisdictional

prerequisite in this statute where one cannot be originally found. Thus, the district

court had jurisdiction to modify the child support order.2

C. The Legislative History Suggests that the General Assembly Did Not
Intend to Create a Jurisdictional Prerequisite

While the plain meaning of N.C.G.S. § 50-13.7(a) is sufficient for us to

determine that the district court had jurisdiction to modify the VSA, the legislative

history of the statute indicates that the legislature did not intend for the statute to

create a jurisdictional prerequisite to modify child support orders. To determine

legislative intent, this Court can also consider “the legislative history of an act and

the circumstances surrounding its adoption.” In re Banks, 295 N.C. 236, 239-40, 244

2 Defendant also argues that a district court’s jurisdiction “is limited to the specific
issues properly raised by a party or interested person in their motion in the cause.”
Defendant cites Court of Appeals case law suggesting that it is improper for courts to address
issues other than those properly raised, namely, Van Nynatten v. Van Nynatten, 113 N.C.
App. 142, 147, 438 S.E.2d 417, 419 (1993), and Smith v. Smith, 15 N.C. App. 180, 183, 189
S.E.2d 525, 526 (1972). Here the only issue addressed by the district court was modification
of the VSA, a child support issue over which the court had continuing jurisdiction; therefore,
this case is distinguished from the cases cited above in which the district court addressed
child support when the only issue before the court was alimony and vice versa. Van Nynatten,
113 N.C. App. at 147, 438 S.E.2d at 419; Smith, 15 N.C. App. at 183, 189 S.E.2d at 526.

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S.E.2d 386, 389 (1978) (citation omitted). The legislative history of N.C.G.S. § 50-

13.7(a) and other domestic relations statutes yields critical insight regarding the

General Assembly’s intent here.

As early as 1859, judges had statutory authority in certain cases to “make all

needful rules and orders concerning [child] custody, as shall best promote the welfare

of the children.” Act of Feb. 15, 1859, ch. 53, sec. 1, 1858-59 N.C. Sess. Laws 91, 92.

Dissatisfied parties could appeal to the Supreme Court. Id., sec. 2, at 92. In 1872,

the General Assembly enacted a law regarding child support and custody in divorce

actions:

After the filing of a complaint in any proceeding for
divorce, whether from the bonds of matrimony, or from bed
and board, both before and after final judgment therein, it
shall be lawful for the judge of the court, in which such
application is or was pending, to make such orders
respecting the care, custody, tuition and maintenance of
the children of the marriage as may be proper, and from
time to time to modify or vacate such orders: Provided, [sic]
That no order respecting the children, shall be made on the
application of either party without five, [sic] days notice to
the other party, unless it shall appear that the party
having the possession or control of such children, [sic] has
removed or is about to remove the children or himself,
beyond the jurisdiction of the court.

Act of Feb. 12, 1872, ch. 193, sec. 46, 1871-72 N.C. Sess. Laws 328, 343 (consequences

of divorce upon the right to custody of the children). Unlike the current statute, in

the original version of the law the legislature restricted the court’s authority by

expressly stating that, except in exigent circumstances, an order to vacate or modify

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could not be entered if the other party was not given five days notice. The same

language regarding the establishment and modification of support orders—including

the mandatory five-day notice requirement—survived various revisions of the law.

See 1 N.C. Cons. Stat. § 1664 (1919); 1 N.C. Rev. § 1570 (1905); 1 N.C. Code § 1296

(1883). The same language was later incorporated in N.C.G.S. § 50-13 (1943) along

with additional provisions regarding custody; however, in 1967 N.C.G.S. § 50-13

(1943) was repealed and replaced with the original version of the current statute,

N.C.G.S. § 50-13.7(a) (1967). Act of July 6, 1967, ch. 1153, secs. 1, 2, 1967 N.C. Sess.

Laws 1772-73, 1777. The five-day notice requirement was conspicuously removed

from the latest version of the law.

Likewise, our alimony statutes are derived from the same Act of 1872 that

originated the child support and custody statute under present review. Two of these

alimony laws are relevant here. The first of them allowed alimony pendente lite. The

language in this alimony enactment is similar to that used to establish and modify

child support and custody orders, stating that “such order may be modified or vacated

at any time, on the application of either party or of any one [sic] interested: Provided,

That no order allowing alimony pendente lite shall be made unless the husband shall

have had five days’ notice thereof.” Ch. 193, sec. 38, 1871-72 N.C. Sess. Laws at 340

(alimony pendente lite). The laws were later codified, with the modification and

mandatory notice provisions surviving in subsequent versions of the pendente lite

alimony law. See 1 N.C. Code § 1291 (1883); 1 N.C. Cons. Stat. § 1666 (1919); N.C.G.S.

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§ 50-15 (1943). The second of the alimony laws allowed alimony without divorce.

While this edict did not originally have the language concerning modifications or

notice, such wording was later added in 1919 and survived several revisions of the

law. See Ch. 193, sec. 39, 1871-72 N.C. Sess. Laws at 341; 1 N.C. Cons. Stat. § 1667

(1919); N.C.G.S. § 50-16 (1943).

Later, this Court addressed whether the five-day notice provision was

jurisdictional with respect to the alimony laws. Barnwell v. Barnwell, 241 N.C. 565,

566, 85 S.E.2d 916, 916-17 (1955), involved a civil action for alimony without divorce

under N.C.G.S. § 50-16 in which a district court entered an order for alimony pendente

lite without notice to the defendant. This Court determined that the failure to comply

with the five-day notice requirement in N.C.G.S. § 50-16 rendered the order void.3

3 The Court did not expressly use the term “jurisdictional prerequisite,” but after
stating that the order was “void,” the Court cited Collins v. N.C. State Highway & Pub. Works
Comm’n, 237 N.C. 277, 281, 74 S.E.2d 709, 713 (1953), in which this Court stated that a lack
of jurisdiction renders a judgment “void.” Moreover, we have consistently used the terms
“void” and “nullity” to describe a lack of jurisdiction. See In re T.R.P., 360 N.C. at 590, 636
S.E.2d at 790 (“A judgment is void, when there is a want of jurisdiction by the court over the
subject matter . . . .” (quoting Hart v. Thomasville Motors, Inc., 244 N.C. 84, 90, 92 S.E.2d
673, 678 (1956))); Ridge Cmty. Inv’rs, Inc. v. Berry, 293 N.C. 688, 696, 239 S.E.2d 566, 571
(1977) (“[T]he clerk having undertaken to enter a kind of judgment which she had no
jurisdiction to enter [,] the judgment so entered is void and is a nullity, and may be so treated
at all times.” (quoting Moore v. Moore, 224 N.C. 552, 555, 31 S.E.2d 690, 692 (1944))); Ellis v.
Ellis, 190 N.C. 418, 421, 130 S.E. 7, 9 (1925) (“If a judgment is void, it must be from one or
more of the following causes: 1. Want of jurisdiction over the subject-matter; 2. Want of
jurisdiction over the parties to the action, or some of them; or 3. Want of power to grant the
relief contained in the judgment. In pronouncing judgments of the first and second classes,
the court acts without jurisdiction, while in those of the third class it acts in excess of
jurisdiction.” (quoting 1 A.C. Freeman, A Treatise on the Law of Judgments § 116 at 176 (4th
ed. 1892))).

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Id. at 567-68, 85 S.E.2d at 918. In 1967 both alimony statutes were repealed and the

statutory framework that exists today was enacted as evidenced in N.C.G.S. §§ 50-

16.1A through 50-16.10. The notice provision remained intact until it was repealed

in 1995. Act of June 21 1995, ch. 319, sec. 6, 1995 N.C. Sess. Laws 641, 646-47

(changing the laws pertaining to alimony) (codified at N.C.G.S. § 50-16.8 (1995)). In

its present form, the relevant alimony statute includes the same language as appears

in N.C.G.S. § 50-13.7(a) and which is at issue here: “An order of a court . . . for alimony

. . . may be modified or vacated at any time, upon motion in the cause and a showing

of changed circumstances by either party or anyone interested.” N.C.G.S. § 50-16.9(a)

(2015). Moreover, both the child support modification statute at issue here and the

alimony statute cited for purposes of instructive comparison were enacted by the

General Assembly on the same day in successive acts. Act of July 6, 1967, ch. 1152,

1967 N.C. Sess. Laws 1766 (alimony); Ch. 1153, 1967 N.C. Sess. Laws 1772 (child

custody and support). As stated above, the notice provision was removed from the

child support statute in 1967, but remained in the alimony statute until 1995. This

comprehensive analysis of the legislative history of N.C.G.S. § 50-13.7(a), the

governing statute in the case at bar, establishes that the legislature did not intend

that subsection 50-13.7(a) create a jurisdictional prerequisite.

D. The Provision in N.C.G.S. § 50-13.7(a) Is Directory Rather than
Mandatory

The provision of N.C.G.S. § 50-13.7(a) requiring a motion to be filed is directory rather

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Opinion of the Court

than mandatory; consequently, the absence of a motion to modify a child support

order does not divest the district court of jurisdiction to act under the purview of the

statute. With the empirical subject of jurisdiction substantively questioned,

defendant argues that “a motion in the cause by an interested party pursuant to

N.C.G.S. § 50-13.7(a) [must be filed]. Without a motion in the cause the trial court is

without authority/jurisdiction to modify the existing order.” This Court has

previously held that a provision in a statute that is directory rather than mandatory

is not jurisdictional. See In re D.S., 364 N.C. at 193-94, 694 S.E.2d at 763-64 (citing

In re C.L.C., 171 N.C. App. 438, 443-45, 615 S.E.2d 704, 707-08 (2005)) (concluding

that various statutory timelines governing the filing of a petition to terminate

parental rights, the scheduling of the initial post-disposition custody review hearing

and the filing of permanency planning orders under cited provisions of the juvenile

code are “directory, rather than mandatory and thus, not jurisdictional” (quoting In

re B.M., 168 N.C. App. 350, 354, 607 S.E.2d 698, 701 (2005)), aff’d per curiam in part

and disc. rev. improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006)). “

‘Directory’ has been defined in Black’s Law Dictionary as ‘[a] provision in a statute,

rule of procedure, or the like, which is a mere direction or instruction of no obligatory

force, and involving no invalidating consequence for its disregard, as opposed to an

imperative or mandatory provision, which must be followed.’ ” State v. Fulp, 355

N.C. 171, 176, 558 S.E.2d 156, 159 (2002) (quoting Black’s Law Dictionary 460 (6th

ed. 1990)). We have reasoned that:

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Opinion of the Court

In determining the mandatory or directory nature of a
statute, the importance of the provision involved may be
taken into consideration. Generally speaking, those
provisions which are a mere matter of form, or which are
not material, do not affect any substantial right, and do not
relate to the essence of the thing to be done so that
compliance is a matter of convenience rather than
substance, are considered to be directory.

State v. House, 295 N.C. 189, 203, 244 S.E.2d 654, 661-62 (1978) (quoting 73 Am. Jur.

2d, stat. § 19, at 280 (1974) (footnote call numbers omitted)). This Court has

determined that “[t]he meaning and intention of the Legislature must govern; and

these are to be ascertained, not only from the phraseology of the provision, but also

by considering its nature, its design, and the consequences which would follow from

construing it in the one way or the other.” Spruill v. Davenport, 178 N.C. 364, 368-

69, 100 S.E. 527, 530 (1919) (citation omitted).

We conclude that failure to follow the directory requirements of N.C.G.S. § 50-

13.7(a) regarding the filing of a motion in the cause does not divest the district court

of jurisdiction. The provision requiring a motion to be filed for a child support order

to be modified is directory, not mandatory, in nature. The provision concerns a matter

of form, rather than a matter of substance as defendant contends, and merely

addresses the procedural aspects of modifying a child support order. This Court has

issued consistent determinations to this effect, even under varying circumstances.

See House, 295 N.C. at 200-03, 244 S.E.2d at 660-62 (concluding that while a grand

jury foreman signed an indictment that failed to explicitly indicate that at least

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Opinion of the Court

twelve jurors concurred in the finding but stated that the jury found the indictment

to be a true bill, such omission violated only a directory provision); State v. Rogers,

275 N.C. 411, 422-23, 168 S.E.2d 345, 351-52 (1969) (concluding that statutory

provisions requiring county commissioners making up a jury list to use, in addition

to a tax list, “a list of names of persons who do not appear upon the tax list,” are

“directory and not mandatory in the absence of bad faith or corruption”), cert. denied,

396 U.S. 1024 (1970); N.C. State Art Soc’y., Inc. v. Bridges, 235 N.C. 125, 130, 69

S.E.2d 1, 4-5 (1952) (concluding that a statute requiring one of two particular

individuals to appraise art selected to be purchased by the State Art Commission was

directory and the decision to have a different qualified person to appraise the art

constituted substantial compliance with the statute). Thus, the provision stating that

a child support order may be modified “upon” a motion in the cause is merely

directory; therefore, plaintiff’s failure to do so does not divest the district court of

jurisdiction.

E. The VSA Satisfied the Purposes of the Provisions in N.C.G.S. § 50-13.7(a)

While N.C.G.S. § 50-13.7(a) does not create a jurisdictional prerequisite and

does not contain a mandatory requirement that a party or interested person file a

motion for child support modification in order for a district court to exercise

jurisdiction over such a matter, defendant nonetheless asserts that a trial court must

construe the statute in such a fashion to abide by the procedural requirements of

N.C.G.S. § 50-13.7(a). According to defendant, to hold otherwise will encourage

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Opinion of the Court

parties to disregard other procedural requirements such as filing complaints, issuing

summonses and observing other mandatory provisions. This Court is not persuaded

by defendant’s “snowball effect” argument. Here, plaintiff filed a VSA, which was

sufficient to satisfy the purposes of N.C.G.S. § 50-13.7(a). A primary purpose of a

requirement to file a motion in order to modify child support is to make the court

aware of “important new facts unknown to the court at the time of the prior custody

decree.” Tank v. Tank, 2004 ND 15, ¶ 10, 673 N.W.2d 622, 626 (2004) (citations

omitted). When a VSA is filed to modify an earlier court order on child support, the

VSA is customarily a request to modify the child support order because circumstances

have changed. Thus, a VSA submitted to the district court without such a motion

still serves the purpose highlighted in Tank, a case from the State of North Dakota

that is instructive for this analysis. Thus, our decision also harmoniously aligns with

the statutory provision requiring a showing of a change in circumstances in order for

a child support order to be modified.

IV. Conclusion

In light of a VSA’s inherent satisfaction of the purposes of N.C.G.S. § 50-

13.7(a), coupled with the analysis employed regarding statutory construction,

previous case law application and legislative history review, this Court concludes that

plaintiff’s failure to file a motion to modify defendant’s child support obligation did

not divest the district court of jurisdiction to modify the VSA at issue here under

N.C.G.S. § 50-13.7(a). Accordingly, we reverse the decision of the COA affirming the

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Opinion of the Court

trial court’s order declaring the 2001 VSA void and remand this case to that court for

further remand to the District Court, Catawba County for further proceedings not

inconsistent with this opinion.

REVERSED AND REMANDED.

Chief Justice MARTIN concurring in the result only.

In this case, we must decide whether the district court had the power to modify

a child support order even though no party had filed a motion in the cause. Under

subsection 50-13.7(a) of our General Statutes, “an order of a court of this State for

support of a minor child may be modified or vacated at any time, upon motion in the

cause and a showing of changed circumstances.” N.C.G.S. § 50-13.7(a) (2015)

(emphasis added). Here, the district court acted only after defendant had entered

into a proposed Modified Voluntary Support Agreement and Order (the consent

order), which the parties then submitted to the district court for approval. Because

the consent order served as the functional equivalent of a joint motion, I concur in

the result that the majority opinion reaches.

But I do not concur in the majority’s reasoning, as the majority’s rationale

seems to extend much further than the context of this case. Because it holds that the

“motion in the cause” language of subsection 50-13.7(a) is directory rather than

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MARTIN, C.J., concurring

mandatory, the majority seems to allow a district court to modify a child support

order—and thus to alter the legal rights and duties of the parties involved—sua

sponte, without any party invoking the court’s power. This rule, if the majority is

indeed establishing it, ignores the plain language of the very statutory provision that

gives district courts the power to modify these kinds of orders. It also potentially

subverts the customary role that courts play in our adversarial system: to rule on the

issues actually raised and argued by the parties. This seems imprudent at best, and

may raise serious jurisdictional concerns as well. I therefore write separately to

express my opinion that the majority’s reasoning should be read narrowly.

This Court said in State v. House that, “[i]n determining the mandatory or

directory nature of a statute, the importance of the provision involved may be taken

into consideration.” 295 N.C. 189, 203, 244 S.E.2d 654, 661 (1978) (quoting 73 Am.

Jur. 2d Statutes § 19, at 280 (1974)). “Generally speaking, those provisions which are

a mere matter of form, or which are not material, do not affect any substantial right,

and do not relate to the essence of the thing to be done so that compliance is a matter

of convenience rather than substance, are considered to be directory.” Id. at 203, 244

S.E.2d at 661-62 (quoting 73 Am. Jur. 2d Statutes § 19, at 280). Under this standard,

a provision that requires a motion in order for a district court to modify an existing

support order should be viewed as mandatory for several reasons.

First of all, the motion requirement in subsection 50-13.7(a) is not “a mere

matter of form.” It defines both the role of the parties and the role of the court in

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MARTIN, C.J., concurring

child support proceedings. If a party wishes to have a child support order modified,

that party must file a motion in the cause and serve it on the opposing party. That

gives the opposing party notice of the motion and the chance to present arguments

opposing it. And that is how our adversarial system normally operates. But parties

have no opportunity to contest a potential modification when a court acts sua sponte.

Granting a court the power to act sua sponte in this context, as the majority appears

to do, both destabilizes already concluded agreements and affects the substantial

rights of parties who rely on those agreements. Parties also have an interest in the

finality of judgments and the repose that they provide. Under the majority’s apparent

rationale, though, cases once resolved could be reopened even though neither party

wants to continue litigating.

In re T.R.P. is an analogous case. There, we held that a statutory provision

requiring a verification signature on a juvenile petition—the lack of which would in

many cases be a simple oversight—was mandatory. 360 N.C. 588, 598, 636 S.E.2d

787, 794-95 (2006). Requiring the verification procedure “respect[ed] both the right

to family autonomy and the needs of the child.” Id. at 598, 636 S.E.2d at 794. A

similar logic motivates the language of subsection 50-13.7(a). A district court can

always modify a support order on request of a party who shows a change in

circumstances and good reason to modify the order. But if the majority ruling is read

to permit even sua sponte modifications, it would disturb several decades of Court of

Appeals precedent that domestic relations parties and social services agencies

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MARTIN, C.J., concurring

throughout North Carolina have presumably come to rely on. See Royall v. Sawyer,

120 N.C. App. 880, 882, 463 S.E.2d 578, 580 (1995) (concluding that a child support

agreement could not be modified without a motion to modify the agreement); Kennedy

v. Kennedy, 107 N.C. App. 695, 703, 421 S.E.2d 795, 799 (1992) (noting that a district

court may modify a custody order only upon a motion by either party or by anyone

interested); Smith v. Smith, 15 N.C. App. 180, 182-83, 189 S.E.2d 525, 526 (1972)

(holding that it was error for the trial court to modify a custody and support order

when the only question before the trial court at the time was alimony).

I would also observe that the General Assembly has not amended the motion

requirement in subsection 50-13.7(a) in response to this longstanding Court of

Appeals precedent. That suggests that the Court of Appeals correctly understood the

General Assembly’s intent, or, at a minimum, that the General Assembly has

acquiesced to the Court of Appeals’ reading. “The legislature’s inactivity in the face

of the [judiciary’s] repeated pronouncements [on this issue] can only be interpreted

as acquiescence by, and implicit approval from, that body.” In re T.R.P., 360 N.C. at

594, 636 S.E.2d at 792 (alterations in original) (quoting Rowan Cty. Bd. of Educ. v.

U.S. Gypsum Co., 332 N.C. 1, 9, 418 S.E.2d 648, 654 (1992)).

The majority holds that a district court’s failure to observe subsection

50-13.7(a)’s motion requirement is not jurisdictional, but I believe that it may very

well be. At the very least, the majority does not establish that it is not. The majority’s

discussion of jurisdiction establishes only that the district court here had continuing

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MARTIN, C.J., concurring

jurisdiction over this case and these parties. That is clear. But by focusing on

continuing jurisdiction, the majority ducks the real issue: whether, in the absence of

a motion or its functional equivalent, a district court has the power to modify a child

support order, or instead lacks the power to do so unless and until it receives a request

from an interested party to modify the order.

The term “[j]urisdiction” refers to “[a] court’s power to decide a case or issue a

decree.” In re M.I.W., 365 N.C. 374, 379, 722 S.E.2d 469, 473 (2012) (second set of

brackets in original) (emphasis added) (quoting Black’s Law Dictionary 927 (9th ed.

2009)). “[H]aving jurisdiction is simply a state of being that requires, and in some

cases allows, no substantive action from the court.” Id. at 379, 722 S.E.2d at 473.

Put another way, in our adversarial system of justice, a court with jurisdiction

sometimes cannot act—at least not until a party has asked it to. A court that has

subject-matter jurisdiction over a case and personal jurisdiction over the parties may

thus still lack the “power to grant the relief contained in [its] judgment.” Ellis v.

Ellis, 190 N.C. 418, 421, 130 S.E. 7, 9 (1925) (quoting 1 A. C. Freeman, Freeman on

Judgments § 116 (4th ed. 1892)). And a court that enters a judgment without the

power to do so “acts in excess of jurisdiction.” Id. (quoting 1 A. C. Freeman, Freeman

on Judgments § 116 (4th ed. 1892)). That judgment is therefore void and “may be

impeached collaterally or by direct attack.” Id. at 421-22, 130 S.E. at 9; see also State

ex rel. Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952) (“If the court

was without authority, its judgment . . . is void and of no effect. A lack of jurisdiction

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MARTIN, C.J., concurring

or power in the court entering a judgment always avoids the judgment . . . .”). Hence

the concern here: a district court that ignores a mandatory motion requirement in

issuing an order may well be acting in excess of its jurisdiction, and its order may

well be void.

Defending its position, the majority notes that “the jurisdiction of the court

entering . . . a [child support] decree continues as long as the minor child whose

custody is the subject of the decree remains within its jurisdiction,” quoting Stanback

v. Stanback, 287 N.C. 448, 456, 215 S.E.2d 30, 36 (1975). But again, the issue here

is not whether the district court had continuing jurisdiction, but whether the district

court exceeded the scope of its jurisdiction.

A court can, of course, dismiss a case sua sponte for lack of subject-matter

jurisdiction, see N.C. R. Civ. P. 12(h)(3); accord Fed. R. Civ. P. 12(h)(3), but that is

one of the few exceptions that proves the rule. Many other things, including personal

jurisdiction, are waivable and should not be raised sua sponte. See N.C. R. Civ.

P. 12(h)(1); accord Fed. R. Civ. P. 12(h)(1). Courts always have jurisdiction to

determine subject-matter jurisdiction, but they do not always have—in fact, they

usually do not have—the power to determine other matters unless asked to do so by

a party.

By ignoring the possibility that a district court that modified a support order

sua sponte may be acting in excess of its jurisdiction, and by reading the standard for

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MARTIN, C.J., concurring

directory versus mandatory statutes in a way that strongly favors the “directory”

label, the majority raises several troubling questions. What must the General

Assembly do to make a procedural rule actually binding on the courts? Does the

magic word “jurisdictional” now have to be in the statute’s text? Would a court with

both subject-matter and personal jurisdiction have the power to issue a summary

judgment order when no party had moved for summary judgment? Would a court be

able to issue a final judgment in a case that had disputed material facts in the absence

of settlement or trial? These last two questions show the error in the majority’s

thinking, and the inconsistency of its reasoning with foundational principles of our

adversarial system: a district court can plainly have jurisdiction over a case but lack

the power to issue a certain decree.

The consent order satisfied subsection 50-13.7(a)’s motion requirement, so the

district court here did not act sua sponte. We therefore do not have to decide whether

a district court that did act sua sponte in this context would be exceeding its

jurisdiction. It is important, however, that we distinguish in future cases between a

court’s jurisdiction over a case, on the one hand, and a court’s power to issue a

particular order or remedy, on the other. Those two things are not the same.

Accordingly, I concur in the result only.

Justice ERVIN joins in this concurring opinion.

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