Opinion
No. COA10-941
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 26 February 2010 by Judge George J. Franks in Cumberland County District Court. Heard in the Court of Appeals 26 January 2011.
Ryan E. Huston, Pro Se. Lewis, Deese Nance, LLP, by Renny W. Deese for defendant-appellant.
Cumberland County File No. 09 CVD 9966.
Defendant Klaryssa L. Huston appeals from a judgment entered by the trial court granting Plaintiff Ryan E. Huston an absolute divorce. On appeal, Defendant contends that the record evidence did not establish that Plaintiff had been a resident of North Carolina for more than six months before the filing of the present action within the meaning of the applicable statutory provisions governing actions for divorce and that the doctrine of collateral estoppel, upon which the trial court relied in ruling in favor of Plaintiff, had no application to the present proceeding. After careful consideration of the defendant's challenges to the trial court's decision in light of the facts and the applicable law, we conclude that the trial court's judgment should be affirmed.
I. Factual Background A. Substantive Facts
Plaintiff and Defendant were married on 13 March 1999. Before their separation on 30 September 2008, the parties had four children. Plaintiff is a native of Alabama and a member of the United States Army. Although Plaintiff has lived in several states since joining the military, he physically resided in North Carolina from the end of 2000 until about 2004 and from 2005 to the present. After moving to North Carolina, Plaintiff obtained a North Carolina driver's license, paid real and personal property taxes in North Carolina relating to the residence in which he lived with Defendant, and registered two motor vehicles in this state. At the time that the present case came on for hearing, Plaintiff was registered to vote in Alabama and paid state income taxes in that jurisdiction.
Plaintiff left North Carolina in 2004 for a period of six months in order to receive military training in Georgia. Plaintiff returned to North Carolina immediately after completing this training in 2005 and has remained in North Carolina ever since.
Defendant is also a native of Alabama. On 16 February 2009, Defendant filed a complaint against Plaintiff asserting claims for child custody, child support, alimony, and equitable distribution in Cumberland County File No. 09 CVD 1460. On 26 February 2009, Plaintiff filed an answer in File No. 09 CVD 1460 in which he sought the dissolution of his marriage to Defendant and counterclaimed for joint custody, the establishment of a reasonable amount of child support, and equitable distribution, including an appropriate interim distribution. On 11 March 2009, after the Cumberland County District Court awarded temporary custody, post-separation support, and temporary child support to Defendant, Defendant received permission to return to Alabama in order to live with her parents. Defendant has resided in Alabama since that time.
On 8 May 2009, Plaintiff filed a petition seeking a divorce from Defendant in the Circuit Court of Colbert County, Alabama. In his Alabama Petition, Plaintiff alleged that "he has been a bona fide resident of the state of Alabama although domiciled in other states." After the parties failed to reach a settlement at a mediation session held on 2 December 2009, the Alabama divorce petition was dismissed.
Although there are a number of assertions in Defendant's brief to the contrary, Plaintiff never alleged that he was domiciled in Alabama in the Alabama divorce proceeding.
B. Procedural History
On 7 October 2009, Plaintiff filed a complaint in the present case seeking a divorce from Defendant based on one year's separation. On 6 November 2009, Defendant filed an answer in which she denied that Plaintiff was domiciled in North Carolina and alleged that "Plaintiff is, and has been, a citizen and domiciliary of the State of Alabama" and that Plaintiff "has pending in the Circuit Court of Colbert County, Alabama, a petition for divorce against Defendant[.]" The issues raised by the parties' pleadings came on for trial before the trial court at the 14 December 2009 session of the Cumberland County District Court.
On 26 February 2010, after taking the case under advisement, the trial court entered judgment in favor of the Plaintiff. In its written order, the trial court found as fact that:
1. The Plaintiff and Defendant married on March 13, 1999.
4. In 09 CVD 1460, Wife, in her verified Complaint, alleged that she and the husband, Defendant in that action, were "both residents of Cumberland County, North Carolina, and have been for more than six months next preceding the filing of this action."
. . . .
7. In his verified Answer [in File No. 09 CVD 1460], Husband admitted that he was a resident of Cumberland County, North Carolina, and had been for six month[s] preceding the institution of the action by Wife.
. . . .
12. These allegations and admissions by both parties in 09 CVD 1460 were sufficient in that matter to confer jurisdiction within the State of North Carolina for the Court to award, inter alia, [] temporary custody, post separation support, and temporary child support to Wife, with visitation to the Father.
13. On March 11, 2009, an order was entered in 09 CVD 1460 granting Wife temporary primary joint custody with visitation to the Husband and Wife was allowed to relocate to her parent's home in Alabama.
. . . .
18. In his verified Complaint, Plaintiff Husband averred that he currently resided in North Carolina and had for more than six months next preceding the institution of the action and that it was his present intent to remain in North Carolina for the indefinite future.
. . . .
21. The Court notes that this court has had contact with the Honorable Harold V. Hughston, Jr. Presiding Circuit Court Judge of the 31st Judicial Circuit for the State of Alabama concerning Case No RD 2009-200, a "Petition for Divorce," filed on May 8, 2009, in Colbert County, Alabama. . . . The purpose of the communication with the Court in Alabama was to determine custody jurisdiction.
. . . .
27. From the testimony of the Husband, Plaintiff, the Court finds that Husband lived in North Carolina and that his wife and family lived in a home prior to the filing of [File No.] 09 CVD 1460 for a period of at least six months preceding the filing of that action and that during some of that time, Husband was deployed on military service.
28. Husband and Wife owned real property located at 2805 Bardolino Drive, Fayetteville, North Carolina, at the time of the filing of [File No.] 09 CD 1460.
29. Husband has continued to reside in North Carolina since the filing of [File No.] 09 CVD 1460, currently residing in Raleigh, North Carolina, and, therefore, lived and resided in North Carolina for six months next preceding the institution of this action.
30. Husband has a North Carolina driver's license and has registered his vehicles in the State of North Carolina.
31. Husband paid property tax, both real and personal, in the State of North Carolina.
. . . .
33. The Husband, Plaintiff herein, was registered to vote in Alabama as of 2008 and paid State income tax in Alabama for the fiscal years 2007 and 2008 and has not paid North Carolina State Income tax.
34. When questioned as to domicile, neither Husband nor Wife appeared to understand the distinction, but the Husband alleged in his Alabama "Petition For Divorce" that he was a domiciliary of the State of Alabama.
Based on these findings of fact, the trial court concluded as a matter of law that:
1. The parties have admitted jurisdiction over the marriage in [File No.] 09 CVD 1470.
2. Absolute divorce i[s] an in rem action.
3. By virtue of relying on the marital relationship for post separation support and by seeking alimony, equitable distribution, and interim equitable distribution, Defendant wife is collaterally [e]stopped from denying jurisdiction of the marriage, the res herein.
4. The legislature, in drafting [N.C. Gen. Stat. §] 50-6, which allows for "no-fault" divorce in this state, chose the language "has resided" over other options.
5. The facts, as found by the Court, as to the Plaintiff husband residing in North Carolina for six months next preceding the institution of this action are sufficient to meet the jurisdictional threshold of N.C.G.S. 50-6, notwithstanding his having his voter registration in Alabama and paying Alabama State income taxes and the filing of his "Petition for Divorce" in Colbert County, Alabama.
6. The parties were separated for more than one year prior to the filing of this action, entitling Plaintiff to an absolute divorce.
Thus, the trial court ordered that "[t]he bonds of matrimony between the Plaintiff and Defendant are dissolved and Divorce Absolute is granted." Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis A. Standard of Review
"`The standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.'" Stovall v. Stovall, ___ N.C. App. ___, ___, 698 S.E.2d 680, 683 (2010) (quoting Pegg v. Jones, 187 N.C. App. 355, 358, 653 S.E.2d 229, 231 (2007), aff'd per curiam, 362 N.C. 343, 661 S.E.2d 732 (2008)). The trial court's findings are binding for purposes of appellate review in the event that they are supported by substantial evidence even if evidence to the contrary also appears in the record. Id. (quoting Pegg, 187 N.C. App. at 358, 653 S.E.2d at 231). "We have defined `substantial evidence' as such `relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pulliam v. Smith, 348 N.C. 616, 625, 501 S.E.2d 898, 903 (1998) (quoting State v. Mill, 347 N.C. 275, 301, 493 S.E.2d 264, 279 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099, 118 S. Ct. 1850 (1998)). The trial court's conclusions of law, however, are subject to de novo review. Renner v. Hawk, 125 N.C. App. 483, 491, 481 S.E.2d 370, 375, disc. Review denied, 346 N.C. 283, 487 S.E.2d 553 (1997). "[A]ppellate courts do not set aside verdicts and judgments for technical or harmless error[;]" on the contrary, "[i]t must appear that the error complained of was material and prejudicial, amounting to a denial of some substantial right[.]" Walker v. Walker, 201 N.C. 183, 184, 159 S.E. 363, 364 (1931). We will utilize this standard of review in evaluating Defendant's challenges to the trial court's judgment.
B. Substantive Legal Issues 1. Sufficiency of the Evidence
On appeal, Defendant contends that the trial court erroneously concluded that Plaintiff had been a resident of North Carolina for more than six months preceding the filing of this divorce action, on the grounds that the record did not support this determination. In challenging the trial court's decision with respect to the residence issue, Defendant argues that there is a difference between the concept of "residence" and the concept of "domicile;" that a successful divorce claim requires proof of "domicile" rather than mere "residence;" and that, given that Plaintiff had alleged that he was a domiciliary of Alabama in his Alabama divorce complaint and that Plaintiff had paid taxes and been registered to vote in Alabama, he could not have been a domiciliary of North Carolina for the necessary time period prior to the filing of the complaint. We do not find Defendant's argument persuasive.
According to N.C. Gen. Stat. § 50-6, either the "plaintiff or defendant in the suit for divorce [must have] resided in the State for a period of six months" preceding the filing of the divorce action. "In order to constitute residence as a jurisdictional fact to render a divorce decree valid under the laws of this State there must not only be physical presence at some place in the State but also the intention to make such locality a permanent abiding place. There must be both residence and animus manendi." Martin v. Martin, 253 N.C. 704, 706, 118 S.E.2d 29, 31 (1961) (citation omitted); see also State v. Williams, 224 N.C. 183, 191, 29 S.E.2d 744 (1944), aff'd, 325 U.S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092 (1945). "The word `resident' has been interpreted to mean the equivalent of `domicile.'" Andris v. Andris, 65 N.C. App. 688, 690, 309 S.E.2d 570, 571 (1983) (citing Williams v. North Carolina, 317 U.S. 287, 87 L. Ed. 2d, 63 S. Ct. 207 (1942)). As a result, a plaintiff seeking an absolute divorce must establish both that he or she has physically resided in North Carolina for at least six months before initiating a divorce proceeding and that he or she intends to make North Carolina his or her permanent home for the indefinite future. Bryant v. Bryant, 228 N.C287, 289, 45 S.E.2d 572, 574 (1047) (citations omitted).
In addition to enacting N.C. Gen. Stat. § 50-6, the General Assembly has adopted legislation establishing residence requirements applicable to divorce actions involving those in military service. According to N.C. Gen. Stat. § 50-18, individuals who have resided or been stationed in North Carolina for at least six months in connection with the performance of their military duties satisfy the applicable residence requirement. The enactment of N.C. Gen. Stat. § 50-18 has not, however, eliminated the necessity for the plaintiff to satisfy the "intent to remain" requirement. Martin, 253 N.C. at 707, 118 S.E.2d at 32. As a result, a showing that Plaintiff intended to remain in North Carolina was a necessary component of his divorce claim, regardless of whether he is understood to have been proceeding pursuant to N.C. Gen. Stat. § 50-6, as the trial court assumed, or pursuant to N.C. Gen. Stat. § 50-18.
A trial court required to make a residence determination of the type required by N.C. Gen. Stat. §§ 50-6 and 50-18 must necessarily consider all of the facts that are relevant to that issue. Although there is no definitive list of factors that must be considered in the course of making the required intent determination, reported decisions of the Supreme Court and this Court have suggested that establishing a permanent address within the State of North Carolina, obtaining a North Carolina driver's license, paying North Carolina taxes, registering a vehicle in North Carolina, registering to vote in North Carolina, and the subjective statements made by the party in question are all relevant. See Id. at 709-10, 118 S.E.2d at 33-34; Bryant, 228 N.C. at 289-90' 45 S.E.2d at 573-74; Andris, 65 N.C. App. at 690, 309 S.E.2d at 571-72. As a result, the ultimate question before us is whether, based upon the totality of the circumstances, the trial court erred by concluding that Plaintiff satisfied the applicable residence requirement.
Defendant does not, at any point in her brief, challenge the sufficiency of the evidence to support the trial court's findings of fact. For that reason, the trial court's factual findings are binding upon us for purposes of appellate review. As a result, the only remaining issue that we must address is whether the trial court's findings of fact support its determination that Plaintiff met the applicable residence requirement. In light of its unchallenged findings that the parties lived in North Carolina prior to the filing of File No. 09 CVD 1460; that the parties "owned real property located at 2805 Bardolino Drive" in Fayetteville; that Plaintiff has "continued to reside in North Carolina since the filing of" File No. 09 CVD 1460; that Plaintiff is "currently residing in Raleigh;" that Plaintiff "has a North Carolina driver's license and has registered his vehicles in the State of North Carolina;" that Plaintiff "paid property tax, both real and personal, in the State of North Carolina;" and that "it was [Plaintiff's] present intent to remain a resident of North Carolina for the indefinite future and he currently continues to reside in North Carolina," the trial court provided ample support for its determination that Plaintiff met the residence requirement applicable to the successful maintenance of a divorce action in North Carolina. See Martin, 253 N.C. at 709-10, 118 S.E.2d at 33-34 (holding that an individual who had been stationed in North Carolina for more than a year while performing military service and who had obtained a North Carolina driver's license, had paid North Carolina income taxes and had registered his vehicle in North Carolina had presented sufficient evidence to support the submission of the issue of whether he met the residency requirement enunciated in N.C. Gen. Stat. § 50-18 to the jury); Bryant, 228 N.C. at 289-90, 45 S.E.2d at 574-75 (holding that evidence tending to show that the plaintiff had resided in North Carolina for the requisite period of time and intended to remain in North Carolina was sufficient to support a finding that the plaintiff met the residence requirement set out in N.C. Gen. Stat. § 50-6); Andris, 65 N.C. App. at 690-91, 309 S.E.2d at 571072 (holding that evidence tending to show that the plaintiff moved his voter registration to North Carolina, filed a North Carolina income tax return, opened a bank account in North Carolina, registered his motor vehicle in North Carolina, paid North Carolina taxes, and resided with his parents in North Carolina while on leave supported a determination that the plaintiff was a resident of North Carolina for the purposes of jurisdiction in divorce proceedings). In addition, the fact that the trial court specifically mentioned both the necessity for six months residence in North Carolina and Plaintiff's "present intent to remain a resident of North Carolina for the indefinite future" clearly shows that the trial court utilized the correct legal standard in making these findings and conclusions. Thus, the trial court's order adequately addressed the residence issue for purposes of the present case.
In seeking to persuade us to reach a different result, Defendant appears to argue that the allegations concerning the residency issues contained in Plaintiff's Alabama divorce petition, coupled with the fact that Plaintiff was registered to vote and had paid income taxes in Alabama, precluded a finding that Plaintiff satisfied the residence requirement of N.C. Gen. Stat. §§ 50-6 and 50-18. Defendant's argument overlooks the fact that, while Plaintiff's allegation that he was a "bona fide" Alabama resident and the fact that he was registered to vote and had paid taxes in Alabama were all relevant to the residence inquiry, those facts, standing alone, did not conclusively resolve the residence issue or preclude the trial court from determining, on the basis of the totality of the circumstances, that Plaintiff met the North Carolina residence requirement. As we have already determined, the trial court's findings of fact amply support its determination that Plaintiff had resided in North Carolina for more than six months preceding the filing of this divorce action and that he intended to remain in North Carolina indefinitely, which is all that the applicable law requires. The fact that the trial court's order specifically references the information upon which Defendant relies in the course of finding that Plaintiff had satisfied the residence requirement strongly suggests that the trial court adequately comprehended Defendant's argument, but simply found it unpersuasive. At bottom, Defendant's argument represents little more than a request that we reweigh the facts and reach a different conclusion than that deemed appropriate by the trial court, an outcome that is inconsistent with the applicable standard of review. Bryant, 228 N.C. at 290, 45 S.E.2d at 574 (stating that, "[w]hile there was evidence from which a contrary decision might have been rendered, the record also discloses evidence in full support of the finding made by the court"). As a result, the trial court did not commit any legal error in addressing and resolving the residence issue.
2. Applicability of the Doctrine of Collateral Estoppel
Secondly, Defendant contends that the trial court erred by concluding that Defendant was estopped from denying that Plaintiff met North Carolina's residence requirement for the maintenance of a divorce action because she "rel[ied] on the marital relationship for post separation support and [because she sought] alimony, equitable distribution, and interim equitable distribution" in File No. 09 CVD 1460. Assuming, without deciding, that the trial court erred by making this conclusion of law, we hold that any such error did not prejudice Defendant's chances for a more favorable outcome at trial. As we have already noted, the trial court properly concluded, based on adequately supported findings of fact, that Plaintiff met the residence requirement associated with the maintenance of a successful North Carolina divorce action. In light of the fact that the trial court's resolution of the residence issue is completely independent of its discussion of the collateral estoppel issue, we have no hesitancy about concluding that any error that the trial court may have committed in finding that Defendant was collaterally estopped from "denying jurisdiction of the marriage" did not affect the outcome reached in the trial court's judgment. As a result, any error that the trial court may have committed by finding that Defendant was "collaterally estopped from denying jurisdiction of the marriage" does not provide any justification for an award of appellate relief in this instance.
In view of our decision to affirm the trial court's order, we need not determine the issues raised by Plaintiff's motion to dismiss Defendant's appeal based upon an alleged failure to properly serve the notice of appeal and the notice relating to the ordering of the transcript. Thus, Plaintiff's dismissal motion is denied as moot.
III. Conclusion
Thus, for the reasons set forth above, we determine that the trial court did not err by concluding that Plaintiff satisfied the residence prerequisites for the maintenance of a successful North Carolina divorce action in this case. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED.
Judges STEELMAN and ELMORE concur.
Report per Rule 30(e).