68 N.C. App. 760 | N.C. Ct. App. | 1984
The defendant assigns error to the denial of his motion to dismiss all claims. As to the action to forfeit defendant’s right to a share of his deceased daughter’s estate, he contends the court does not have jurisdiction through service of process on him. G.S. 1-75.8 provides in part:
“A court of this State having jurisdiction of the subject matter may exercise jurisdiction in rem or quasi in rem on the grounds stated in this section. A judgment in rem or quasi in rem may affect the interests of a defendant in a status, property or thing acted upon only if process has been served upon the defendant pursuant to Rule 4(k) of the Rules of Civil Procedure. Jurisdiction in rem or quasi in rem may be invoked in any of the following cases:
(1) When the subject of the action is real or personal property in this State and the defendant has or claims any lien or*762 interest therein, or the relief demanded consists wholly or partially in excluding the defendant from any interest or lien therein. This subdivision shall apply whether any such defendant is known or unknown.”
The estate of the defendant’s deceased daughter is personal property in this State and the relief demanded is to exclude the defendant from any interest in this property. No question has been raised as to service pursuant to Rule 4(k). This brings this action within the provisions of G.S. 1-75.8(1) and gives the court jurisdiction.
The defendant also contends the complaint shows on its face that he has not abandoned his children. He says this is so because it is alleged in the complaint that his support payments did not stop until May 1981 and this shows he has substantially complied with the court order for support. He argues that for this reason, the action should be dismissed under G.S. 1A-1, Rule 12(b)(6). We do not believe that from the allegations in the complaint that it clearly appears that plaintiff can prove no set of facts which will entitle her to relief. For this reason the action should not have been dismissed under G.S. 1A-1, Rule 12(b)(6). See F.D.I.C. v. Loft Apartments, 39 N.C. App. 473, 250 S.E. 2d 693, disc. rev. denied, 297 N.C. 176, 254 S.E. 2d 39 (1979). The motion to dismiss as to the first claim was properly denied.
As to the defendant’s motion to dismiss the action for money judgments for arrearages in alimony and child support and to modify the alimony decree because of a change in circumstances, we hold it was error not to grant this motion. There is a judgment in Cumberland County as to these matters. The District Court of Mecklenburg County has no jurisdiction as to them. See Tate v. Tate, 9 N.C. App. 681, 177 S.E. 2d 455 (1970).
Affirmed in part; reversed and remanded in part.
