228 N.C. App. 177
N.C. Ct. App.2013Background
- Child Sean born October 10, 2010; prospective adoptive parents (the Joneses) filed an adoption petition on November 2, 2010 with the mother’s consent.
- Gregory Johns (father) moved to intervene and to dismiss the adoption; trial judge (Trosch) concluded Johns was not a party and that his consent was not required, granting summary judgment for petitioners in February 2012.
- Johns then filed a separate custody action on January 4, 2012 and sought an injunction to stop the adoption; the Joneses moved to dismiss the custody action for lack of subject-matter jurisdiction under the prior pending action doctrine.
- The Mecklenburg County District Court granted the dismissal for lack of subject-matter jurisdiction on January 26, 2012.
- On appeal, the court considered whether the district court was deprived of jurisdiction by the pending adoption proceeding and whether the custody action should instead be held in abeyance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pending adoption proceeding deprives the district court of subject-matter jurisdiction over a subsequently filed custody action | Johns: District court retains jurisdiction; prior pending action doctrine does not automatically bar the custody suit | Joneses: The pending adoption concerns the same child and thus abates the custody action for lack of jurisdiction | Court: Dismissal for lack of subject-matter jurisdiction was error; district court has jurisdiction but should hold the custody action in abeyance while adoption is pending |
| Whether the court should enjoin the adoption as part of the custody suit | Johns: Requested injunction to stop adoption pending custody determination | Joneses: Injunction unnecessary because adoption proceeding controls custody issues | Court: Did not decide injunction because custody dismissal subsumed injunction request; remanded with instruction to hold custody action in abeyance |
Key Cases Cited
- Fairfield Harbour Property Owners Ass’n, Inc. v. Midsouth Golf, LLC, 715 S.E.2d 273 (N.C. Ct. App.) (standard of review for Rule 12(b)(1) motion is de novo)
- In re Appeal of Greens of Pine Glen Ltd., 576 S.E.2d 316 (N.C.) (de novo review principle cited)
- Shoaf v. Shoaf, 727 S.E.2d 301 (N.C. Ct. App.) (explains prior pending action/abatement test)
- McKoy v. McKoy, 689 S.E.2d 590 (N.C. Ct. App.) (concurrent jurisdiction and first-acquired jurisdiction rule in family/guardianship context)
- In re Greer, 215 S.E.2d 404 (N.C. Ct. App.) (first-acquired jurisdiction principle)
- Petersen v. Rogers, 445 S.E.2d 901 (N.C.) (scope of district court custody jurisdiction under Chapter 50)
- France v. France, 738 S.E.2d 180 (N.C. Ct. App.) (one trial court judge may not overrule another on same issue; discourages judge shopping)
- Griffin v. Griffin, 456 S.E.2d 329 (N.C. Ct. App.) (prior decision addressing concurrent custody and adoption proceedings)
- Jessee v. Jessee, 713 S.E.2d 28 (N.C. Ct. App.) (holding related action should be held in abeyance when interrelated)
- Keith v. Wallerich, 687 S.E.2d 299 (N.C. Ct. App.) (holding related claim must be held in abeyance pending resolution of primary related action)