{ "id": 8521893, "name": "DONNA R. POWERS v. CHARLES N. PARISHER", "name_abbreviation": "Powers v. Parisher", "decision_date": "1991-11-05", "docket_number": "No. 9026SC1306", "first_page": "400", "last_page": "411", "citations": [ { "type": "official", "cite": "104 N.C. App. 400" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "326 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719540 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0063-01" ] }, { "cite": "343 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "584-85", "parenthetical": "hence evidence of change of circumstances \"is not an absolute requirement to justify an increase\" in support" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521398 ], "year": 1986, "pin_cites": [ { "page": "76", "parenthetical": "hence evidence of change of circumstances \"is not an absolute requirement to justify an increase\" in support" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0071-01" ] }, { "cite": "312 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "907", "parenthetical": "litigants not permitted to engage \"in mere fishing expeditions\"" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526189 ], "year": 1984, "pin_cites": [ { "page": "273", "parenthetical": "litigants not permitted to engage \"in mere fishing expeditions\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0271-01" ] }, { "cite": "239 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565860, 8565831, 8565883, 8565915, 8565951 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0589-02", "/nc/293/0589-01", "/nc/293/0589-03", "/nc/293/0589-04", "/nc/293/0589-05" ] }, { "cite": "237 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547502 ], "year": 1977, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0144-01" ] }, { "cite": "181 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1971, "pin_cites": [ { "page": "191" }, { "page": "191" }, { "page": "191" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555201 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0397-01" ] }, { "cite": "204 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563377, 8563252, 8563348, 8563289, 8563324 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0234-05", "/nc/285/0234-01", "/nc/285/0234-04", "/nc/285/0234-02", "/nc/285/0234-03" ] }, { "cite": "202 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "20 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554624 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/20/0607-01" ] }, { "cite": "188 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "160 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "110-111" }, { "page": "92", "parenthetical": "italics omitted" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550419 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0108-01" ] }, { "cite": "387 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "172", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 15", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307541 ], "year": 1990, "pin_cites": [ { "page": "21", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0015-01" ] }, { "cite": "444 U.S. 286", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11306135 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "297" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/us/444/0286-01" ] }, { "cite": "387 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "97 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519814 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/97/0118-01" ] }, { "cite": "357 U.S. 235", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162253 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "253" }, { "page": "1298" } ], "opinion_index": 0, "case_paths": [ "/us/357/0235-01" ] }, { "cite": "377 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "77-78", "parenthetical": "citing Hanson v. Denckla, 357 U.S. 235, 253, 2 L.Ed.2d 1283, 1298 (1958)" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527912 ], "year": 1989, "pin_cites": [ { "page": "145", "parenthetical": "citing Hanson v. Denckla, 357 U.S. 235, 253, 2 L.Ed.2d 1283, 1298 (1958)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0142-01" ] }, { "cite": "330 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726019, 4722090, 4724332, 4725677, 4720721 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0604-05", "/nc/313/0604-03", "/nc/313/0604-02", "/nc/313/0604-01", "/nc/313/0604-04" ] }, { "cite": "325 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527242 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0585-01" ] }, { "cite": "386 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "234", "parenthetical": "citing Marion v. Long, 72 N.C. App. 585, 325 S.E.2d 300, disc. rev. denied and appeal dismissed, 313 N.C. 604, 330 S.E.2d 612 (1985)" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522505 ], "year": 1989, "pin_cites": [ { "page": "383", "parenthetical": "citing Marion v. Long, 72 N.C. App. 585, 325 S.E.2d 300, disc. rev. denied and appeal dismissed, 313 N.C. 604, 330 S.E.2d 612 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0377-01" ] }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 2, "year": 1945, "pin_cites": [ { "page": "316" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "329 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724089 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0474-01" ] }, { "cite": "338 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "134" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523510 ], "year": 1986, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0657-01" ] }, { "cite": "259 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572202, 8572243, 8572172 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0305-02", "/nc/298/0305-03", "/nc/298/0305-01" ] }, { "cite": "255 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 756", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552024 ], "year": 1979, "pin_cites": [ { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0756-01" ] }, { "cite": "390 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524153 ], "year": 1990, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0299-01" ] }, { "cite": "188 S.E,2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 378", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549614 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0378-01" ] } ], "analysis": { "cardinality": 1036, "char_count": 25981, "ocr_confidence": 0.776, "pagerank": { "raw": 2.647558600893846e-07, "percentile": 0.823753431184598 }, "sha256": "8e37a00dd1e7c2c1a194b0acbc20b8c6ef0fe076c1e060af7494f8696337191c", "simhash": "1:854dc963766fe74b", "word_count": 4134 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Eagles concur." ], "parties": [ "DONNA R. POWERS v. CHARLES N. PARISHER" ], "opinions": [ { "text": "PARKER, Judge.\nPlaintiff is a resident of North Carolina and the former wife of defendant, who currently resides in New Mexico. Plaintiff instituted this action on 5 December 1989 in Mecklenburg County District Court to obtain a judicial order for the support of the two minor children of the parties\u2019 marriage. The Parisher family lived in North Carolina from 1967 until the parties\u2019 divorce in this State in 1982.\nDefendant left North Carolina in 1983. He was served with the complaint and summons in this action at a temporary business address in Salt Lake City, Utah. In response to plaintiff\u2019s complaint, defendant moved to dismiss pursuant to Rules 12(b)(1), (2), (4), (5) and (6) of the North Carolina Rules of Civil Procedure for lack of subject matter and personal jurisdiction, insufficiency of process and service of process and failure to state a claim upon which relief can be granted. The court denied defendant\u2019s motion to dismiss. Defendant also moved for a protective order under Rule 26(c) against plaintiff\u2019s request for production of financial documents; the trial court denied defendant\u2019s motion and granted plaintiff\u2019s motion to compel defendant to produce the requested documents. Defendant appeals from the trial court\u2019s adverse rulings. On 4 September 1991 defendant also filed a motion to amend the record on appeal, which this Court denied.\nDefendant first contends the trial court erred in finding personal jurisdiction over defendant, a New Mexico resident. We disagree. Under a non-judicial separation agreement dated 5 June 1981, defendant obligated himself to pay child support. On 2 February 1983 the parties modified the support portion of their agreement by increasing the monthly payment to $300.00 per child. Thus, although plaintiff\u2019s complaint prayed for \u201can increase in child support based upon a substantial change in circumstances,\u201d plaintiff\u2019s action was in fact brought pursuant to N.C.G.S. \u00a7 5043.4(a), which provides that \u201c[a]ny parent . . . having custody of a minor child ... may institute an action for the support of such child.\u201d Defendant concedes that plaintiff is asking \u201cthe Court to enter an original award of child support.\u201d A court must have personal jurisdiction over the defendant in an action for child support. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E,2d 711 (1972); N.C.G.S. \u00a7 50-13.5(c)(1).\nIn support of his argument that the trial court lacked in per-sonam jurisdiction, defendant contends that (i) no statutory basis for long-arm jurisdiction exists in this case under N.C.G.S. \u00a7 1-75.4 and (ii) in any event, the court\u2019s exercise of personal jurisdiction offends the constitutional requirement of minimum contacts with this State. Defendant correctly states the two-step analysis \u201cto determine whether personal jurisdiction may be exercised over a foreign defendant.\u201d Tompkins v. Tompkins, 98 N.C. App. 299, 301, 390 S.E.2d 766, 767 (1990). Contrary to defendant\u2019s arguments, however, the trial court properly found that it had personal jurisdiction in this case.\nThe applicable statutory ground for personal jurisdiction is subsection 12 of our long-arm statute:\nA court of this State having jurisdiction of the subject matter has jurisdiction over a person . . . under any of the following circumstances:\n(12) Marital Relationship. \u2014 In any action under Chapter 50 that arises out of the marital relationship within this State, notwithstanding subsequent departure from the State, if the other party to the marital relationship continues to reside in this State.\nN.C.G.S. \u00a7 1-75.4(12) (1983). We hold that plaintiff\u2019s action meets the dual requirements of subsection 12.\nFirst, plaintiff\u2019s action is brought \u201cunder Chapter 50.\u201d As already mentioned, plaintiff seeks an initial judicial determination of child support, N.C.G.S. \u00a7 5043.4(a), and not a court-ordered modification of the parties\u2019 amended separation agreement. The existence of a valid separation agreement relating to child support or custody \u201cdoes not prevent one of the parties\u201d \u201cfrom instituting an action for a judicial determination of those same matters.\u201d Winborne v. Winborne, 41 N.C. App. 756, 760, 255 S.E.2d 640, 643, disc. rev. denied, 298 N.C. 305, 259 S.E.2d 918 (1979). Further, N.C.G.S. \u00a7 50-13.4 is available to this plaintiff, as defendant\u2019s prior action for absolute divorce \u201cwas filed on or after 1 October 1981.\u201d Cf. Schofield v. Schofield, 78 N.C. App. 657, 659, 338 S.E.2d 132, 134 (1986).\nSecond, plaintiff\u2019s action \u201carises out of the marital relationship within this State.\u201d Plaintiff states, and the trial court found, that the parties\u2019 marriage took place in North Carolina in 1967. Defendant did not assign error to that finding. Nor did defendant contest the finding that the family resided in North Carolina from 1967 up through the date of absolute divorce, 19 July 1982. Both children were born during the 1970s and presently reside in Mecklenburg County with their mother. For the period 1988-89, the mother and the parties\u2019 children lived in Florida. On the ground that plaintiff moved for a time to Florida, defendant contends that the marital relationship within this State \u201cis not the source of this action.\u201d We do not agree with defendant\u2019s interpretation of the legal significance of plaintiff\u2019s temporary move to Florida. The record shows that the family spent at least fifteen years domiciled in North Carolina; and, since the divorce in 1982, plaintiff and her children have also resided almost continuously in this State. On these facts the trial court properly concluded that the statutory requirements for personal jurisdiction over defendant were satisfied.\nIn addition to the statutory basis for the assertion of in per-sonam jurisdiction, the trial court\u2019s exercise of jurisdiction must also satisfy constitutional due process requirements, Miller v. Kite, 313 N.C. 474, 329 S.E.2d 663 (1985), in order that the maintenance of the action not offend \u201ctraditional notions of fair play and substantial justice.\u201d International Shoe v. Washington, 326 U.S. 310, 316, 90 L.Ed. 95, 102 (1945). Defendant argues that the trial court was incorrect in its conclusion of law that \u201cdefendant has sufficient minimum purposeful contacts with the State of North Carolina to establish in personam jurisdiction.\u201d This argument is also without merit, given the evidence in the record of defendant\u2019s extensive contacts with this State.\nIn assessing the particular facts of each case, courts consider factors such as:\n(1) the quantity of the contacts, (2) the nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) convenience.\nFraser v. Littlejohn, 96 N.C. App. 377, 383, 386 S.E.2d 230, 234 (1989) (citing Marion v. Long, 72 N.C. App. 585, 325 S.E.2d 300, disc. rev. denied and appeal dismissed, 313 N.C. 604, 330 S.E.2d 612 (1985)). In appropriate cases the court will look for \u201csome act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of the forum state\u2019s laws.\u201d Buck v. Heavner, 93 N.C. App. 142, 145, 377 S.E.2d 75, 77-78 (1989) (citing Hanson v. Denckla, 357 U.S. 235, 253, 2 L.Ed.2d 1283, 1298 (1958)).\nIn this case we need not go beyond an examination of the extent and quality of defendant\u2019s contacts with North Carolina and the significant connection between those contacts and plaintiff\u2019s present action. Defendant having failed to assign error to the finding that the parties and their two children resided in North Carolina from 1967 through 1982, a period co-extensive with defendant\u2019s marriage to plaintiff, defendant is bound by this finding on appeal. N.C.R. App. P. 10(a); Williams v. Williams, 97 N.C. App. 118, 387 S.E.2d 217 (1990).\nThus, \u201cdefendant\u2019s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court [in North Carolina].\u201d World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L.Ed.2d 490, 501 (1980). This case is quite unlike the cases in which a plaintiff\u2019s unilateral acts in this State are the sole basis for the court\u2019s assertion of personal jurisdiction over a non-resident defendant. The factual differences between this case and Miller v. Kite, 313 N.C. 474, 329 S.E.2d 663 (1985), are striking. In Miller our Supreme Court held that a State court could not constitutionally exercise personal jurisdiction over defendant father in a 1982 child support action where: the parties married in Illinois; their child was born in Illinois; mother and child moved to North Carolina some time after a 1972 divorce; defendant had never lived in North Carolina and never purchased property in the State; and defendant merely mailed support payments to this State and visited his child in North Carolina approximately six times during a nine-year period.\nGiven our conclusion that the trial court had personal jurisdiction over defendant, we examine only briefly defendant\u2019s specific assignments of error to the trial court\u2019s factual findings that (i) two children were born of the marriage in North Carolina; (ii) the parties entered into separation agreements in North Carolina; and (iii) \u201cdefendant regularly visits the State of North Carolina to see his family as well as visit with the minor children.\u201d Defendant argues that there\u2019 is no evidence in the record to support these findings. We disagree.\nDefendant\u2019s verified divorce complaint, an exhibit in the record on appeal, gives the names and birth dates of the two children born of the marriage with plaintiff and references \u201ca Separation Agreement dated June 5, 1981.\u201d An affidavit filed by defendant in Mecklenburg County District Court on 9 April 1990 repeats the names and birth dates of the two children, 1974 and 1977 respectively, and avers defendant\u2019s consistent and faithful compliance with monthly support payments for the children as \u201cset forth in our agreement of February 2, 1983.\u201d Hence defendant\u2019s own evidence is consistent with the more detailed references to the separation agreements in plaintiff\u2019s complaint in this action. Moreover, considering (i) the record evidence that the parties resided in North Carolina at the time of their divorce, (ii) the lack of any evidence in the record that the parties executed their separation agreement and its amendment outside North Carolina and (iii) the absence of any reason they would have done so, we can reasonably infer that the parties\u2019 separation agreement as amended is a North Carolina contract governed by North Carolina law.\nThe actual birthplaces of the children and the precise frequency of defendant\u2019s visits to North Carolina are inconsequential factors, in light of the undisputed evidence of defendant\u2019s substantial, long-term contacts with North Carolina. We also note that plaintiff showed defendant purchased property ip Mecklenburg County in 1983, although that fact is not essential to our holding. Under all these facts, the trial court properly concluded that defendant had sufficient purposeful contacts with North Carolina to satisfy due process requirements.\nIn his second assignment of error, defendant presents his theory that the divorce action he filed in Mecklenburg County in 1982 is still pending and that plaintiff, therefore, cannot bring a second action in the same cause. Defendant consequently assigns error to the trial court\u2019s conclusions that \u201c[t]here is no child custody or child support action pending in any other cause\u201d and that the issue of support \u201cwas not raised in the 1982 divorce action.\u201d Defendant argues that his prior divorce action placed the question of child support at issue with the results that (i) the original divorce court retains jurisdiction over that question and (ii) the present independent action by his wife should, therefore, have been dismissed under a theory of abatement. We disagree.\n\u201cThe ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of a prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?\u201d\nClark v. Craven Regional Med. Authority, 326 N.C. 15, 21, 387 S.E.2d 168, 172 (1990) (citations omitted). As discussed hereafter, defendant\u2019s assertion that his 1982 divorce complaint placed the question of child support at issue is in conflict with existing case law construing the relevant statute, N.C.G.S. \u00a7 50-13.5(f). Defendant has not shown the identity of subject matter, issues involved and relief requested under the standard tests applied to a plea in abatement.\nN.C.G.S. \u00a7 5043.5(f), enacted in 1967, is the venue provision for a child support action. It includes the following language:\nIf an action for . . . divorce . . . has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action.\nN.C.G.S. \u00a7 5043.5(f) (1987).\nThe seminal case interpreting this statutory provision is In re Holt, 1 N.C. App. 108, 160 S.E.2d 90 (1968). Holt held that N.C.G.S. \u00a7 5043.5(f) modified the prior rule that a court trying a divorce action ordinarily obtained and retained \u201cexclusive jurisdiction of custody and support of children . . . where no custody or support questions [were] raised prior to, or determined in, the final judgment in the divorce action.\u201d Id. at 110-111, 160 S.E.2d at 92 (italics omitted); see also Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972).\nIn Holt the husband\u2019s complaint for divorce contained no prayer for custody or child support. Similarly, defendant\u2019s 1982 action for divorce in this case contained only the prayer \u201cthat the marriage of the parties be dissolved and that he be granted an absolute divorce.\u201d In Holt, as in this case, the wife filed no answer or crossclaim, so that no responsive pleading raised any additional issues. Finally, the final judgment of divorce in Holt made no mention of custody or child support, exactly like the present defendant\u2019s divorce judgment. On these facts the Holt Court held that the support and custody issues had \u201cnot been brought to issue or determined,\u201d thus permitting the former wife to file an independent proceeding for child support.\nDespite the clarity of the holding in Holt, defendant argues that the following paragraph in his complaint for divorce brought child support to issue:\nThere were two children born of the marriage between Plaintiff and Defendant, namely, Brandon Chas Parisher, born February 2, 1974 and Courtney Anne Parisher, born February 13, 1977. The children are in the custody of Defendant and Plaintiff is providing for their support under the provisions of a Separation Agreement dated June 5, 1981.\nAllegations of the names and ages of any children of a party seeking divorce in North Carolina are required by N.C.G.S. \u00a7 50-8, in order that the court may protect the interests of such children if the parties have failed to do so. Jones v. Jones, 20 N.C. App. 607, 202 S.E.2d 279, cert. denied, 285 N.C. 234, 204 S.E.2d 23 (1974). Followed to its logical conclusion, defendant\u2019s argument \u2014 based as it is on a simple mandatory averment concerning children \u2014 would mean that every divorce complaint would place the question of child support at issue where the parties had minor children.\nSuch a conclusion is inconsistent with our case law. In Wilson v. Wilson, 11 N.C. App. 397, 181 S.E.2d 190 (1971), this Court held that child support had not been brought to issue or determined under the following facts. The divorce complaint and answer raised \u201ccertain issues,\u201d id. at 399, 181 S.E.2d at 191; but the divorce judgment expressly stated that \u201c \u2018the parties have disposed of all matters at issue by a separation agreement and the sole matter that remains to be determined in this action is [their] divorce,\u2019 \u201d id. at 398, 181 S.E.2d at 191. In the present case, the judgment of divorce contained findings only of then-plaintiff\u2019s residency in North Carolina, his marriage to Donna Parisher (now Powers) and a continuous separation of the parties for more than one year. The sole relief in the 'decree was dissolution of the parties\u2019 marriage, just as in Wilson and Holt; and, as in both those cases, that was the only relief sought by defendant in his prior divorce action.\nFurther, in defendant\u2019s divorce decree, there is not even any mention, let alone an incorporation of, the parties\u2019 separation agreement, unlike the decree in Wilson, which recited:\n\u201cNOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the bonds of matrimony . . . are hereby dissolved . . . [and] that the plaintiff shall have the custody of the minor children in accordance with the amended separation agreement heretofore mentioned . . .\nId. Despite this express allusion to the parties\u2019 separation agreement, the Wilson Court held that the prior divorce action did not place the question of child support at issue. The reasoning in Wilson applies in the present case.\nThe judgment is completely silent as to support of the children and does not even refer to any such provision in the separation agreement. . . . The judgment refers to a separation agreement and an amended separation agreement, but contains nothing by which any separation agreement could be identified as to date or content. Certainly, the separation agreements referred to are not incorporated in the divorce judgment.\nId. at 399, 181 S.E.2d at 191. Based on these observations in Wilson we also hold that defendant\u2019s mere mentioning of \u201ca Separation Agreement dated June 5,1981\u201d in his divorce complaint was insufficient to raise the issue of child support. As defendant\u2019s divorce complaint did not ask the divorce court to review the question of child support and as the divorce judgment did not even allude to the parties\u2019 separation agreement, we overrule defendant\u2019s second assignment of error.\nFinally, defendant assigns error to the trial court\u2019s refusal to issue a protective order against plaintiff\u2019s extensive requests for documents concerning defendant\u2019s financial status. The general rule is \u201cthat orders regarding matters of discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion.\u201d Hudson v. Hudson, 34 N.C. App. 144, 145, 237 S.E.2d 479, 480, disc. rev. denied, 293 N.C. 589, 239 S.E.2d 264 (1977)., We hold that it was an abuse of discretion not to have granted defendant some relief under Rule 26(c) of the North Carolina Rules of Civil Procedure in this case, on the ground that plaintiff\u2019s requests for discovery under Rule 34 far exceed the scope of financial documents relevant to plaintiff\u2019s action and are, therefore, unduly burdensome. Absent relevance, plaintiff cannot possibly establish the necessity for many of the documents sought in this case. See Williams v. State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271, 273, 312 S.E.2d 905, 907 (1984) (litigants not permitted to engage \u201cin mere fishing expeditions\u201d).\nPlaintiff requests copies of all these materials for each of the past five years and the current year to date, where applicable: defendant\u2019s federal and State income tax returns; financial statements; \u201c[a]n itemization and all written proof\u201d of income; an itemization of all money received \u201cfrom any and all sources,\u201d other than income; documents showing ownership of any realty or personalty; \u201c[a]ll written documents illustrative of all tangible [sic] assets\u201d including \u201cstocks, bonds, mutual funds, account statements from brokerage firms, certificates of deposit, and the like\u201d; \u201c[a]ll your checking account records,\u201d including \u201cmonthly account statements, the checkstub book and all cancelled checks\u201d; \u201c[a]ll savings account records,\u201d including \u201call deposit slips, passbooks, withdrawal slips, and any other documents related to maintenance of the savings account\u201d; and evidence of debt. Plaintiff\u2019s position that all such documents are \u201cnecessary\u201d is untenable.\nPlaintiff\u2019s position is untenable because the relevant inquiries in an action under N.C.G.S. \u00a7 5043.4(a) are \u201cthe reasonable needs of the child\u201d and the parties\u2019 present, relative financial abilities to contribute to those needs. N.C.G.S. \u00a7 5043.4(c).\nWhen a motion is made to modify the child support provisions of a separation agreement which has not previously been incorporated into an order or judgment of the court, the court is called upon, for the first time, to exercise its authority to see that the reasonable needs of the child are provided for commensurate with the abilities of those responsible for the child\u2019s support. . . . [T]he moving party\u2019s only burden is to show the amount of support necessary to meet the reasonable needs of the child at the time of the hearing.\nBoyd v. Boyd, 81 N.C. App. 71, 76, 343 S.E.2d 581, 584-85 (1986) (hence evidence of change of circumstances \u201cis not an absolute requirement to justify an increase\u201d in support).\nOrdinarily the ability of the supporting spouse to pay child support is determined by the amount that parent is earning at the time of the court\u2019s award. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985); 3 R. Lee, North Carolina Family Law \u00a7 229, at 121 (4th ed. 1981). While the trial court\u2019s thinking in approving plaintiff\u2019s discovery requests is not apparent from the record, the court found that plaintiff\u2019s request for production was \u201creasonable . . . in scope.\u201d The scope of plaintiff\u2019s discovery request is, however, not reasonable, when viewed from the proper perspective of determining defendant\u2019s current ability to pay the support reasonably needed by the children.\nFor the foregoing reasons, we affirm the trial court\u2019s assertion of personal jurisdiction over defendant and its determination that the theory of abatement was not applicable to these facts. We reverse, however, the trial court\u2019s orders granting plaintiff\u2019s discovery motion to compel document production and denying defendant\u2019s motion for a protective order under Rule 26(c) and remand for reconsideration, consistent with this Court\u2019s opinion, of defendant\u2019s motion to limit the scope of discovery.\nAffirmed in part; reversed and remanded in part.\nJudges Johnson and Eagles concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Hicks, Hodge and Cranford, P.A., by Christy T. Mann and Terri L. Young, for plaintiff-appellee.", "James, McElroy & Diehl, P.A., by William K. Diehl, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "DONNA R. POWERS v. CHARLES N. PARISHER\nNo. 9026SC1306\n(Filed 5 November 1991)\n1. Process \u00a7 9.1 (NCI3d); Divorce and Separation \u00a7 451 (NCI4th) \u2014 child support \u2014New Mexico defendant \u2014personal jurisdiction\nThe trial court did not err in a child support action by finding personal jurisdiction over defendant, a New Mexico resident, where defendant obligated himself to pay child sup- \u25a0 port under a non-judicial separation agreement in 1981; the parties increased the monthly payment in 1983; and plaintiffs action was brought pursuant to N.C.G.S. \u00a7 5043.4(a) and sought an original award of child support. Plaintiffs action met the statutory requirements of N.C.G.S. \u00a7 1-75.4(12) in that the action was brought under Chapter 50 and plaintiffs action arises out of the marital relationship within this State, even though plaintiff moved for a time to Florida, and constitutional due process requirements are satisfied by the extent and quality of defendant\u2019s contacts with North Carolina and the significant connection between those contacts and plaintiffs present action.\nAm Jur 2d, Divorce and Separation \u00a7 243; Process \u00a7\u00a7 173, 175, 178.\n2. Divorce and Separation \u00a7 451 (NCI4th)\u2014 child support-jurisdiction \u2014 findings\u2014supported by the evidence\nThe trial court properly concluded under the facts that defendant had sufficient purposeful contacts with North Carolina to satisfy due process requirements where it could reasonably be inferred that the parties\u2019 separation agreement as amended is a North Carolina contract governed by North Carolina law. The actual birthplaces of the children and the precise frequency of defendant\u2019s visits to North Carolina are inconsequential factors in light of the undisputed evidence of defendant\u2019s substantial, long-term contacts with North Carolina and, though not essential, defendant\u2019s purchase of property in North Carolina.\nAm Jur 2d, Divorce and Separation \u00a7 243.\n3. Divorce and Separation \u00a7 458 (NCI4th)\u2014 original action for child support \u2014pending divorce action \u2014no abatement\nThere was no abatement of plaintiffs action for child support, even though there had been a prior divorce, where the divorce complaint did not ask the court to review the question of child support and the divorce judgment did not even allude to the parties\u2019 separation agreement. Defendant\u2019s divorce complaint cont\u00e1ined allegations of the names and ages of the children, as required by N.C.G.S. \u00a7 50-8, and mentioned a separation agreement, but did not place the question of child support in issue and did not meet the tests of a plea in abatement. N.C.G.S. \u00a7 50-13.5(0.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1092, 1093.\n4. Discovery and Depositions \u00a7 45 (NCI4th)\u2014 child support\u2014 requests for documents concerning financial status \u2014protective order denied\nThe trial court erred in a child support action by granting plaintiff\u2019s motion to compel document production and denying defendant\u2019s motion for a protective order where the scope of plaintiff\u2019s discovery request was not reasonable when viewed from the proper perspective of determining defendant\u2019s current ability to pay the support reasonably needed by the children.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 344, 345; Divorce and Separation \u00a7 344.\nAPPEAL by defendant from order entered 12 September 1990 by Judge Marilyn R. Bissell in MECKLENBURG County District Court. Heard in the Court of Appeals 18 September 1991.\nHicks, Hodge and Cranford, P.A., by Christy T. Mann and Terri L. Young, for plaintiff-appellee.\nJames, McElroy & Diehl, P.A., by William K. Diehl, Jr., for defendant-appellant." }, "file_name": "0400-01", "first_page_order": 428, "last_page_order": 439 }