260 N.C. App. 234
N.C. Ct. App.2018Background
- Jeanne Scheinert filed an alimony action in Randolph County after separating from Harry Scheinert; the trial court previously ordered alimony payments.
- After the action began, Jeanne moved out of North Carolina to Indiana; Harry later moved to Caswell County.
- Harry moved to transfer the ongoing alimony proceeding from Randolph County to Caswell County under N.C. Gen. Stat. § 50-3.
- The trial court granted the transfer and Judge Wilkins entered an order transferring the matter to Caswell County.
- The trial court’s order quoted Harry’s verified answer (which alleged he was a Guilford County resident) but did not expressly find as a fact that he resided outside Randolph County when the action was filed.
- Jeanne appealed, arguing the order lacked sufficient findings and that § 50-3 requires a pending motion or trial date to justify transfer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court made sufficient factual findings to trigger mandatory transfer under § 50-3 | Scheinert: order fails to make an actual finding that defendant resided outside Randolph County when the suit was filed; merely recites his pleading | Scheinert: there was competent evidence (defendant’s verified answer) supporting transfer | Trial court’s order lacks sufficient factual findings; vacated and remanded for proper findings or further proceedings |
| Whether § 50-3 requires a pending motion or trial to authorize transfer | Scheinert: transfer statute applies only when there is a pending motion/trial to transfer | Scheinert: statute permits removal for future motions; no pending motion is required so long as proceeding remains open | Court rejects plaintiff’s argument; statute’s plain language allows transfer to facilitate future motions in the cause |
Key Cases Cited
- Gardner v. Gardner, 300 N.C. 715 (1980) (§ 50-3 is mandatory when its conditions are shown)
- In re Anderson, 151 N.C. App. 94 (2002) (court may not treat pleadings’ allegations as factual findings)
- Wilkie v. City of Boiling Spring Lakes, 809 S.E.2d 853 (2018) (apply plain-meaning statutory construction)