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    "judges": [
      "Judges CALABRIA and LEVINSON concur."
    ],
    "parties": [
      "DARLENE PRICE (NERCESSIAN) v. MARK ASTOR PRICE"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nMark Astor Price (\u201cdefendant\u201d) challenges the trial court\u2019s denial of his motion to dismiss plaintiff\u2019s complaint seeking, inter alia, child support. Defendant contends the trial court lacked personal jurisdiction to enter the child support order because the civil summons and complaint were not properly served. Therefore, defendant contends the trial court\u2019s 11 December 2002 order determining defendant owed $187,680.30 in child support arrears and ordering defendant to pay the arrears in monthly installments of $1,904.00 should be vacated. After careful consideration, we conclude defendant was barred by the doctrine of judicial estoppel from challenging the sufficiency of service of process.\nDarlene Price (\u201cplaintiff\u2019) and defendant were married on 15 February 1981, and had two children born in 1982 and 1984. The parties separated in July 1993, and plaintiff filed for a divorce from bed and board in October 1993. She also sought custody of the children, child support, alimony, and possession of the marital home and other marital property. A civil summons was issued on 5 October 1993, but the return of service, dated 9 November 1993, indicates a sheriff\u2019s deputy was unable to serve defendant. A notation on the return of service, dated 10 November 1993, states \u201cplaintiff advised def[endan]t now living on Hwy 26 Orangeburg, South Carolina.\u201d According to an affidavit of service, an Orangeburg, South Carolina deputy sheriff served defendant on 17 November 1993 by delivering a copy of the civil summons to defendant\u2019s fianc\u00e9, \u201ca person of discretion residing-at the defendant\u2019s residence [] and leaving with her one copy of same at 301 Truckstop . . . .\u201d\nAfter a February 1994 hearing, the trial court entered an order on 29 March 1994 indicating defendant had been properly served as evidenced by a sheriffs affidavit of service from the Orangeburg, South Carolina Sheriffs Department. In this order, the trial court granted plaintiff a divorce from bed and board, and inter alia, ordered defendant to pay $1,904.46 per month in child support. After defendant failed to pay child support the following month, an order to show cause was issued requiring defendant to appear in court on 1 July 1994. According to the return of service, the order to show cause was served on 9 May 1994 by leaving a copy of the order at a residence located at 2713 Lafayette Street in Guilford County, which was purportedly defendant\u2019s usual place of abode. The order was left with defendant\u2019s friend living at the residence. After defendant failed to appear at the show cause hearing, an order for arrest was issued. The return of service on the order for arrest, dated 21 September 1994, indicates defendant was not served because he did not live at the 2713 Lafayette Street address.\nOn 4 May 1995, a motion and notice of hearing for modification of child support order was filed by the assistant county attorney. According to the motion, defendant\u2019s residence was in Fossil, Oregon, and defendant was served via U.S. mail. After defendant failed to appear at another show cause hearing, an order for arrest was issued, which indicated defendant\u2019s address was at his place of business in Archdale, North Carolina. The order for arrest was not served, and the 2 August 1995 return of service indicated defendant had not worked at the address for over a year. Thereafter, on 3 October 1995, the trial court authorized the withholding of defendant\u2019s wages in the order modifying child support.\nThe next year, plaintiff\u2019s attorney filed a motion for contempt on 1 May 1996, as defendant had failed to make any child support payments. A copy of the motion and notice for hearing was sent to defendant at his residence in Seattle, Washington, via certified mail. After receiving the motion and hearing notice, defendant moved to dismiss on 27 June 1996 for lack of personal jurisdiction. According to defendant\u2019s affidavit, he contended he had never lived at 301 Truck Stop in Orangeburg, South Carolina, that there was no residence or dwelling house at that location, and that he had never received any papers or documents relating to this matter. The trial court did not rule upon these motions until 2002.\nPrior to filing his motion to dismiss, defendant filed an amended petition for dissolution of marriage on 8 April 1996 in the State of Washington. In the petition, defendant acknowledges the existence of the 29 March 1994 order entered in Guilford County, North Carolina, and states \u201c[t]he effect of this order is conclusive\u201d on the issue of child support.\nIn September 2002, the child support order was terminated as the two children had reached the age of majority and were no longer in primary or secondary school. On 12 November 2002, another motion to show cause was filed by plaintiffs counsel, and on 18 November 2002, defendant filed another motion to dismiss. In an 11 December 2002 order, the trial court determined defendant\u2019s arrears were $187,680.30 and ordered defendant to pay $1,904.00 per month until the arrears were paid in full. Defendant\u2019s motion to dismiss filed on 27 June 1996 was denied in a 7 January 2003 order. Defendant then filed a notice of appeal to this Court from the 16 September 2002 and 7 January 2003 orders.\nDefendant contends the trial court should have granted his motion to dismiss for insufficiency of service of process, and that the trial court should have vacated the 1994 child support order and all subsequent orders based upon the initial child support order, including the 11 December 2002 order ordering defendant to pay $187,680.30 in arrears. We do not reach the issue of whether there was sufficient service of process because defendant\u2019s arguments are barred by judicial estoppel.\nIn Whitacre P\u2019ship[ v. Biosignia, Inc., 358 N.C. 1, 28, 591 S.E.2d 870, 888 (2004)], the North Carolina Supreme Court adopted the test for judicial estoppel set forth by the United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742, 149 L. Ed. 2d 968, reh\u2019g denied, 533 U.S. 968, 150 L. Ed. 2d 793 (2001). Id. While noting that \u201cthe circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,\u201d [i]d. (citation omitted), the Court identified three factors used to determine if the doctrine should apply. Id.\nThe first factor, and the only factor that is an essential element which must be present for judicial estoppel to apply, id. at 28 n.7, 591 S.E.2d at 888 n.7, is that a \u201cparty\u2019s subsequent position \u2018must be clearly inconsistent with its earlier position.\u2019 \u201d Id. at 29, 591 S.E.2d 888 (internal citations omitted). Second, the court should \u201cinquire whether the party has succeeded in persuading a court to accept that party\u2019s earlier position.\u201d Id. at 29, 591 S.E.2d at 889. Third, the court should inquire \u201cwhether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.\u201d Id. (citation omitted). Judicial estoppel is an \u201cequitable doctrine invoked by a court at its discretion.\u201d Id. (citation omitted).\nWiley v. United Parcel Serv., Inc., 164 N.C. App. 183, 188, 594 S.E.2d 809, 812 (2004); see also Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. at 28, 591 S.E.2d at 888.\n\u201cJudicial estoppel, or preclusion against inconsistent positions, is an equitable doctrine designed to protect the integrity of the courts and the judicial process. . . . [It] is to prevent litigants from playing \u2018fast and loose\u2019 with the courts and deliberately changing positions according to the exigencies of the moment.\u201d Medicare Rentals, Inc. v. Advanced Services, 119 N.C. App. 767, 769-70, 460 S.E.2d 361, 363 (1995). Thus, \u201cLj]udicial estoppel forbids a party from asserting a legal position inconsistent with one taken earlier in the same or related litigation. The doctrine prevents the use of \u2018intentional self-contradiction ... as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.\u2019 \u201d Id. at 769, 460 S.E.2d at 363 (citations omitted).\nIn April 1996, defendant filed a petition for dissolution of marriage in the State of Washington, and in the petition, defendant stated:\nOn March 25, 1994 an order was entered in the General Court of Justice, District Court Division of Guilford County, North Carolina concerning the marriage of Petitioner and Respondent. ... As the Plaintiff, Darlene Elizabeth Price was granted a \u201cDivorce from Bed and Board\u201d which provided for child support, custody, maintenance, division and possession of property, attorney fees, and wage withholding. The effect of this order is conclusive on the above issues, but the order does not grant a divorce to the parties. The Petitioner here, Mark Astor Price, therefore seeks a Decree of Dissolution from the above-entitled court.\nAccording to the law of the State of Washington:\nIn entering a decree of dissolution of marriage . . . , the court shall determine the marital status of the parties, make provision for a parenting plan for any minor child of the marriage, make provision for the support of any child of the marriage entitled to support\nWash. Rev. Code \u00a7 26.09.050 (1996) (emphasis added). Therefore, in a petition for dissolution of marriage, the petitioner must allege the names and ages of any dependent child and any arrangements for support of the children. Wash. Rev. Code \u00a7 26.09.020 (1996). As defendant stated in his petition for dissolution of marriage in the State of Washington that a conclusive order had been entered in North Carolina resolving the issue of child support, the courts in the State of Washington were led to believe that there were no issues regarding child support to be resolved.\nAfter defendant filed his petition for dissolution of marriage, plaintiff filed a motion for contempt in North Carolina on 1 May 1996 based upon defendant\u2019s failure to pay, inter alia, child support. Upon being served with the motion for contempt, defendant moved to dismiss based upon insufficient service of process. In his supporting affidavit, defendant stated that he had never lived at 301 Truck Stop in Orangeburg, South Carolina, and had never been served in this matter. Defendant\u2019s motion to dismiss was not heard until November 2002, after his children had reached the age of majority and plaintiff was no longer entitled to child support.\nDefendant\u2019s legal contention in the State of Washington that the March 1994 order entered in Guilford County was conclusive on the issue of child support, and his legal argument in North Carolina that the case should be dismissed and the child support order vacated because service was improper are inconsistent legal contentions. By stating the 1994 order was conclusive in his Washington petition for dissolution of marriage, defendant led the Washington courts to believe the child support issue had been properly resolved. Then, defendant presented an inconsistent legal contention in North Carolina by challenging the child support order by arguing service of process was improper. After the motion, defendant did not seek a ruling from the court until after his children had reached the age of majority. A ruling in defendant\u2019s favor would prejudice plaintiff as she would be precluded from seeking arrears or child support as the children had reached the age of majority.\nAs previously stated, the doctrine of judicial estoppel \u201cprevents the use of \u2018intentional self-contradiction ... as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.\u2019 \u201d Medicare Rentals, 119 N.C. App. at 769, 460 S.E.2d at 363. In our discretion, we invoke the doctrine of judicial estoppel and preclude defendant from challenging the service of process of the civil summons and complaint for divorce from bed and board. See Whitacre P\u2019ship, 358 N.C. at 38, 591 S.E.2d at 894-95 (quoting New Hampshire v. Maine, 532 U.S. at 750, 149 L. Ed. 2d at 977-78 (citation omitted), which states \u201cjudicial estoppel \u2018is an equitable doctrine invoked by a court at its discretion\u2019 \u201d). Accordingly, we affirm the trial court\u2019s denial of defendant\u2019s motion to dismiss for insufficient service of process.\nAffirmed.\nJudges CALABRIA and LEVINSON concur.",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "Guilford County Attorney\u2019s Office, by Deputy County Attorney Michael K. Newby, for plaintiff-appellee.",
      "Tate Law Offices, by C. Richard Tate, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "DARLENE PRICE (NERCESSIAN) v. MARK ASTOR PRICE\nNo. COA04-393\n(Filed 15 March 2005)\nEstoppel\u2014 judicial estoppel \u2014 inconsistent legal contentions on child support\nThe doctrine of judicial estoppel precluded defendant father from challenging the service of process of the civil summons and complaint in the mother\u2019s action for divorce from bed and board and child support, and thus, the trial court\u2019s denial of defendant\u2019s motion to dismiss the child support complaint based on insufficient service of process is affirmed because: (1) the equitable doctrine of judicial estoppel prevents the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice; (2) defendant\u2019s legal contention in the State of Washington that the March 1994 child support order entered in Guilford County was conclusive on the issue of support, and his legal argument in North Carolina that the case should be dismissed and the child support order vacated based on improper service, are inconsistent legal contentions; and (3) defendant did not seek a ruling from the court until after his children had reached the age of majority, and a ruling in defendant\u2019s favor would prejudice plaintiff as she would be precluded from seeking arrears or child support as the children had reached the age of majority.\nAppeal by defendant from orders entered 16 September 2002 and 7 January 2003 by Judges H. Thomas Jarrell, Jr. and Patrice Hinnant, respectively, in Guilford County District Court. Heard in the Court of Appeals 3 November 2004.\nGuilford County Attorney\u2019s Office, by Deputy County Attorney Michael K. Newby, for plaintiff-appellee.\nTate Law Offices, by C. Richard Tate, Jr., for defendant-appellant."
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  "file_name": "0187-01",
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