{ "id": 4175288, "name": "SARAH ISADORA McKOY, Plaintiff v. WILLIS EUGENE McKOY, Defendant", "name_abbreviation": "McKoy v. McKoy", "decision_date": "2010-02-16", "docket_number": "No. COA09-447", "first_page": "509", "last_page": "515", "citations": [ { "type": "official", "cite": "202 N.C. App. 509" } ], "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": "664 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641630 ], "year": 2008, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0569-01" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "year": 2006, "pin_cites": [ { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "357 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "431-32", "parenthetical": "holding that district court's jurisdiction over abuse, dependency, and neglect proceedings is in \"abeyance\" once adoption petition was filed in superior court, which had exclusive jurisdiction over adoption proceedings" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130846 ], "year": 1987, "pin_cites": [ { "page": "365-66", "parenthetical": "holding that district court's jurisdiction over abuse, dependency, and neglect proceedings is in \"abeyance\" once adoption petition was filed in superior court, which had exclusive jurisdiction over adoption proceedings" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0364-01" ] }, { "cite": "508 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "131 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11199640 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/131/0337-01" ] }, { "cite": "215 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "408", "parenthetical": "\"It is the general rule that where there are courts of concurrent jurisdiction, the court which first acquires jurisdiction retains it.\"" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549971 ], "year": 1975, "pin_cites": [ { "page": "112", "parenthetical": "\"It is the general rule that where there are courts of concurrent jurisdiction, the court which first acquires jurisdiction retains it.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0106-01" ] }, { "cite": "168 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "678", "parenthetical": "holding under prior version of statute providing for support as well as custody that trial court had authority to enter custody and support order although disabled child had attained majority" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549864 ], "year": 1969, "pin_cites": [ { "page": "303", "parenthetical": "holding under prior version of statute providing for support as well as custody that trial court had authority to enter custody and support order although disabled child had attained majority" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0296-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 5043.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 50-13.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.8", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "114 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "698", "parenthetical": "\"It is a fundamental rule of statutory construction that sections and acts in pari materia, and all parts thereof, should be construed together and compared with each other.\"" } ], "opinion_index": 0 }, { "cite": "252 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624853 ], "year": 1960, "pin_cites": [ { "page": "610", "parenthetical": "\"It is a fundamental rule of statutory construction that sections and acts in pari materia, and all parts thereof, should be construed together and compared with each other.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0595-01" ] }, { "cite": "191 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159711 ], "year": 2008, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0256-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "174 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549972 ], "year": 1970, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0162-01" ] }, { "cite": "61 L. Ed. 2d 297", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532170, 1532010, 1532202, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-03", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] }, { "cite": "554 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138306, 138445, 138481, 138365, 138334 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0217-02", "/nc/354/0217-03", "/nc/354/0217-01", "/nc/354/0217-04", "/nc/354/0217-05" ] }, { "cite": "547 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "130" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437004 ], "year": 2001, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0688-01" ] }, { "cite": "585 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "243" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955096 ], "year": 2003, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0209-01" ] } ], "analysis": { "cardinality": 702, "char_count": 17289, "ocr_confidence": 0.728, "pagerank": { "raw": 1.0706166427052074e-06, "percentile": 0.9847848272235177 }, "sha256": "8445a6965afd63669a2b44a2f1dec1226fdc7b0795f0462ebcca66bdf527e64f", "simhash": "1:1a6b774d7afb3ff0", "word_count": 2754 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and GEER concur." ], "parties": [ "SARAH ISADORA McKOY, Plaintiff v. WILLIS EUGENE McKOY, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nThis appeal arises out of a custody dispute in district court between plaintiff Sarah Isadora McKoy and defendant Willis Eugene McKoy regarding their daughter T.M., who was previously adjudicated an incompetent adult by the clerk of superior court under Chapter 35A of the General Statutes. Plaintiff appeals from the trial court\u2019s orders (1) denying plaintiff\u2019s motion to dismiss for lack of subject-matter jurisdiction and (2) granting joint custody of T.M. to plaintiff and defendant. Plaintiff\u2019s sole contention on appeal is that the trial court should have dismissed the parties\u2019 custody action, which was part of their larger divorce and equitable distribution action, for lack of jurisdiction under Chapter 50 because, after the clerk of superior court adjudicated T.M. incompetent under Chapter 35A, the clerk retained exclusive jurisdiction to resolve all disputes regarding custody of T.M. We agree with plaintiff\u2019s contention, and, accordingly, reverse the trial court\u2019s order denying plaintiff\u2019s motion to dismiss and vacate the court\u2019s custody order.\nFacts\nPlaintiff and defendant were married on 29 March 1975. While married the McKoys had two children, M.M., born 1 July 1976, and T.M., born 4 March 1980. T.M. suffers from cerebral palsy, severe mental retardation, scoliosis, chronic kidney disease, high blood pressure, and vision problems. On 25 March 1998, after T.M.\u2019s 18th birthday, the McKoys jointly petitioned the clerk of superior court to declare T.M. incompetent and to appoint both plaintiff and defendant as her guardians under Chapter 35A. On 9 April 1998, the clerk entered an order adjudicating T.M. as being an incompetent adult and finding that she should be appointed a guardian. In another order entered the same day, the clerk appointed both plaintiff and defendant as T.M.\u2019s joint guardians.\nRoughly six years later, on 20 February 2004, plaintiff and defendant separated. On 30 April 2004, plaintiff filed a complaint under Chapter 50 seeking equitable distribution, post-separation support and alimony, and joint legal custody and primary physical custody of T.M. (who was then 24). On 25 June 2004, defendant filed an answer and counterclaim, also seeking custody of T.M. Their divorce was finalized on 23 May 2005.\nThe trial court conducted a hearing on the issue of custody on 23-24 March 2006, which was continued until 20 April 2006. On 20 April 2006, prior to plaintiff finishing presenting her evidence in the custody hearing, plaintiff filed a motion to dismiss the Chapter 50 custody action, asserting that the clerk of superior court retained exclusive jurisdiction over T.M.\u2019s guardianship under Chapter 35A and thus the trial court lacked jurisdiction to adjudicate the custody action. Plaintiff requested in the alternative that a guardian ad litem be appointed for T.M. pursuant to Rule 17(b) of the Rules of Civil Procedure.\nIn an order entered 5 September 2006, the trial court denied plaintiff\u2019s motion to dismiss but appointed T.M. a guardian ad litem. After concluding the custody hearing on 9 February 2007, the trial court entered an order on 19 March 2007, finding that it had subject-matter jurisdiction and awarding plaintiff and defendant joint legal custody of T.M., with plaintiff having custody 60% of the time and defendant having custody 40% of the time. A final equitable distribution judgment was entered 2 September 2008. On 17 December 2008, plaintiff voluntarily dismissed her claim for post-separation support and alimony and appealed to this Court from the trial court\u2019s 5 September 2006 order denying her motion to dismiss and the court\u2019s 19 March 2007 custody order.\nDiscussion\nPlaintiff\u2019s sole argument on appeal is that the trial court lacked subject-matter jurisdiction to determine custody of T.M. Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal. Harper v. City of Asheville, 160 N.C. App. 209, 213, 585 S.E.2d 240, 243 (2003). Subject-matter jurisdiction \u201cinvolves the authority of a court to adjudicate the type of controversy presented by the action before it.\u201d Haker-Volkening v. Haker, 143 N.C. App. 688, 693, 547 S.E.2d 127, 130, disc. review denied, 354 N.C. 217, 554 S.E.2d 338 (2001). Subject-matter jurisdiction derives from the law that organizes a court and cannot be conferred on a court by action of the parties or assumed by a court except as provided by that law. In re Peoples, 296 N.C. 109, 144, 250 S.E.2d 890, 910 (1978), cert. denied sub nom. Peoples v. Judicial Standards Comm\u2019n of N.C., 442 U.S. 929, 61 L. Ed. 2d 297 (1979). \u201cWhen a court decides a matter without the court\u2019s having jurisdiction, then the whole proceeding is null and void, i.e., as if it had never happened.\u201d Hopkins v. Hopkins, 8 N.C. App. 162, 169, 174 S.E.2d 103, 108 (1970). Thus the trial court\u2019s subject-matter jurisdiction may be challenged at any stage of the proceedings. In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006).\nHere, the trial court determined that it had subject-matter jurisdiction under Chapter 50 to enter its custody order. Plaintiff contends, however, that once the clerk of superior court obtained jurisdiction to adjudicate T.M. as an incompetent adult and appointed plaintiff and defendant as her guardians under Chapter 35A, any modification of T.M.\u2019s custody required filing a motion in the cause with the clerk under Chapter 35A rather than filing an action for custody in district court under Chapter 50. Issues of statutory construction are questions of law, reviewed de novo on appeal. Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 264, 664 S.E.2d 569, 575 (2008).\nChapter 35A \u201cestablishes the exclusive procedure for adjudicating a person to be an incompetent adult or an incompetent child.\u201d N.C. Gen. Stat. \u00a7 35A-1102 (2009). Pursuant to N.C. Gen. Stat. \u00a7 35A-1103(a) (2009), the clerk of superior court \u201cha[s] original jurisdiction over proceedings\u201d determining competency. Here, as a result of a hearing conducted pursuant to N.C. Gen. Stat. \u00a7 35A-1112 (2009), T.M. was declared an \u201cincompetent adult.\u201d\nAfter an adjudication of incompetence, N.C. Gen. Stat. \u00a7 35A-1203 (2009) provides the clerk with \u201coriginal jurisdiction for the appointment of guardians of the person, guardians of the estate, or general guardians for incompetent persons and of related proceedings . . . .\u201d In appointing a guardian, the clerk may conduct a hearing and receive evidence regarding, among other things, \u201c[t]he nature and extent of the needed guardianship,\u201d N.C. Gen. Stat. \u00a7 35A-1212(a) (2009), and issue letters of appointment specifying the \u201cpowers and duties of the guardian or guardians,\u201d N.C. Gen. Stat. \u00a7 35A-1215(b) (2009). N.C. Gen. Stat. \u00a7 35A-1241 (2009) specifies the \u201cpowers and duties\u201d of guardians of the person, including:\n(1) The guardian of the person is entitled to custody of the person of the guardian\u2019s ward and shall make provision for the ward\u2019s care, comfort, and maintenance, and shall, as appropriate to the ward\u2019s needs, arrange for the ward\u2019s training, education, employment, rehabilitation or habilitation. . . .\n(2) The guardian of the person may establish the ward\u2019s place of abode within or without this State. . . .\nN.C. Gen. Stat. \u00a7 35A-1241(l)-(2) (emphasis added). Here, the clerk issued letters of appointment naming both plaintiff and defendant as T.M.\u2019s \u201cguardian[s] of the person\u201d and authorizing them \u201cto have . . . custody, care and control of [T.M.]\u201d\nWith respect to authority over guardians of incompetent persons, N.C. Gen. Stat. \u00a7 35A-1203 provides:\n(b) The clerk shall retain jurisdiction following appointment of a guardian in order to assure compliance with the clerk\u2019s orders and those of the superior court. The clerk shall have authority to remove a guardian for cause and shall appoint a successor guardian .... after removal, death, or resignation of a guardian.\n(c) The clerk shall have authority to determine disputes between guardians and to adjust the amount of the guardian\u2019s bond.\nN.C. Gen. Stat. \u00a7 35A-1203(b)-(c) (emphasis added). Chapter 35A also allows \u201c[a]ny interested person [to] file a motion in the cause with the clerk ... to request modification of the order appointing a guardian or guardians or consideration of any matter pertaining to the guardianship.\u201d N.C. Gen. Stat. \u00a7 35A-1207(a) (2009) (emphasis added).\nReading Chapter 35A\u2019s provisions in pari materia, see Redevelopment Commission v. Bank, 252 N.C. 595, 610, 114 S.E.2d 688, 698 (1960) (\u201cIt is a fundamental rule of statutory construction that sections and acts in pari materia, and all parts thereof, should be construed together and compared with each other.\u201d), we conclude that the clerk of superior court is the proper forum for - determining custody disputes regarding a person previously adjudicated an incompetent adult and who has been provided a guardian under Chapter 35A. The Chapter provides that the clerk has the authority to appoint guardians for incompetent persons, N.C. Gen. Stat. \u00a7 35A-1203, and to specify the guardians\u2019 powers and duties, including custody of the person declared incompetent, N.C. Gen. Stat. \u00a7 35A-1241. Chapter 35A further specifies that the clerk retains jurisdiction to ensure compliance with \u201cthe clerk\u2019s orders and those of the superior court\u201d and to \u201cdetermine disputes between guardians.\u201d N.C. Gen. Stat. \u00a7 35A-1203(b), (c). In addition, interested parties are directed to file a motion in the cause with the clerk for \u201cconsideration of any matter pertaining to the guardianship.\u201d N.C. Gen. Stat. \u00a7 35A-1207(a).\nThe custody dispute between plaintiff and defendant \u2014 T.M.\u2019s guardians who have already been granted custody of T.M. \u2014 is a \u201cmatter pertaining to the guardianship.\u201d The parties, therefore, should have filed a motion in the cause under \u00a7 35A-1207(a) with the clerk in order to resolve the dispute in accordance with \u00a7 35A-1203(c).\nAlthough the trial court acknowledged that the clerk had jurisdiction over \u201cissues of guardianship\u201d in this case and that the court did not \u201cha[ve] any jurisdictional authority to become mixed up in a guardianship quarrel,\u201d the court reasoned that Chapter 50 provided jurisdiction to enter a custody order in the parties\u2019 divorce proceedings:\nIn reading [N.C. Gen. Stat. \u00a7 50-13.5 (2009)] and [N.C. Gen. Stat. \u00a7 50-13.8 (2009),] it would appear that the legislature set into motion[] procedures for the court to hear a case identical to this and that this court would have exclusive jurisdiction to do so.\nThus the court concluded that the parties were permitted to \u201cproceed[] in a custody matter in District Court to determine who would get custody and visitation of the minor child.\u201d The flaw in the trial court\u2019s reasoning is that the custody of a \u201cminor child\u201d is not at issue in this case: at the time she was adjudicated incompetent as well as at the time the trial court entered its custody order, T.M. was an adult.\nChapter 50 is titled \u201cDivorce and Alimony.\u201d Within Chapter 50 is Article 1: \u201cDivorce, Alimony, and Child Support, Generally.\u201d Article 1 includes N.C. Gen. Stat. \u00a7\u00a7 50-13.1 through 50-13.12 (2009), provisions relating to child support and custody. N.C. Gen. Stat. \u00a7 50-13.1(a), the provision establishing a cause of action for child custody, provides in pertinent part: \u201cAny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. .. .\u201d (Emphasis added.) This statute, by its plain terms, provides for an action for custody of a \u201cminor child\u201d only\nIn its order denying plaintiff\u2019s motion to dismiss, the trial court relied on N.C. Gen. Stat. \u00a7 50-13.5, concluding that it provided the district court with jurisdiction over \u201call custody matters.\u201d (Emphasis added.) The plain language of the statute, however, does not support such an expansive interpretation. N.C. Gen. Stat. \u00a7 50-13.5 only provides for the \u201cprocedure in actions for custody and support of minor children . . . .\u201d N.C. Gen. Stat. \u00a7 50-13.5(a). The statute also lists the \u201c[t]ype[s]\u201d of custody actions that may be maintained under N.C. Gen. Stat. \u00a7 50-13.5, none of which reference custody of an adult that has been adjudicated incompetent and provided a guardian under Chapter 35A. N.C. Gen. Stat. \u00a7 5043.5(b).\nThe trial court also concluded that it had jurisdiction under N.C. Gen. Stat. \u00a7 50-13.8, which provides: \u201cFor the purposes of custody, the rights of a person who is mentally or physically incapable of self-support upon reaching his majority shall be the same as a minor child for so long as he remains mentally or physically incapable of self-support.\u201d The plain language of \u00a7 50-13.8 provides that the district court has jurisdiction to enter a custody order involving a disabled adult child. See Speck v. Speck, 5 N.C. App. 296, 303, 168 S.E.2d 672, 678 (1969) (holding under prior version of statute providing for support as well as custody that trial court had authority to enter custody and support order although disabled child had attained majority).\nThus the district court has concurrent jurisdiction with the clerk of superior court with respect to custody of disabled adult children. Here, for instance, plaintiff and defendant could have decided not to have T.M. declared an incompetent adult and the district court, in resolving the parties\u2019 other claims under Chapter 50, would have had jurisdiction under \u00a7 50-13.8 to determine custody of T.M. Chapter 35A, however, unequivocally provides that the clerk of superior court has exclusive jurisdiction over guardianship matters. Once the clerk of superior court exercised its jurisdiction under Chapter 35A, adjudicating T.M. an incompetent adult and providing a guardian, the clerk retained jurisdiction to resolve all matters pertaining to the guardianship. See In re Greer, 26 N.C. App. 106, 112, 215 S.E.2d 404, 408 (1975) (\u201cIt is the general rule that where there are courts of concurrent jurisdiction, the court which first acquires jurisdiction retains it.\u201d), superseded on other grounds by statute as recognized in Taylor v. Robinson, 131 N.C. App. 337, 508 S.E.2d 289 (1989); In re James S., 86 N.C. App. 364, 365-66, 357 S.E.2d 430, 431-32 (1987) (holding that district court\u2019s jurisdiction over abuse, dependency, and neglect proceedings is in \u201cabeyance\u201d once adoption petition was filed in superior court, which had exclusive jurisdiction over adoption proceedings).\nWe conclude that the district court obtains jurisdiction under \u00a7 50-13.8 to determine custody only when the disabled adult child at issue has not been declared incompetent and had a guardian appointed. While the superior court clerk retains jurisdiction over all guardianship matters under Chapter 35A, obviously not all disabled adult children are declared incompetent and provided guardians. In those instances, \u00a7 50-13.8 fills the gap, authorizing the district court to determine custody. As the clerk in this case had exercised its jurisdiction under Chapter 35A \u2014 to the exclusion of the district court under N.C. Gen. Stat. \u00a7 50-13.8 \u2014 it retained jurisdiction to resolve the parties\u2019 dispute regarding custody of T.M. Thus, the parties were required to file a motion in the cause with the clerk to resolve the dispute. As the trial court in this case lacked jurisdiction to determine custody of T.M., we reverse the court\u2019s order denying plaintiff\u2019s motion to dismiss and vacate its custody order.\nReversed in part and vacated in part.\nJudges CALABRIA and GEER concur.\n. Chapter 35A defines an \u201cincompetent adult\u201d as \u201can adult or emancipated minor who lacks sufficient capacity to manage the adult\u2019s own affairs or to make or communicate important decisions concerning the adult\u2019s person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.\u201d N.C. Gen. Stat. \u00a7 35A-1101(7) (2009).", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Robinson & Lawing, LLP, by Michelle D. Reingold, for plaintiff-appellant.", "No brief filed on behalf of defendant-appellee." ], "corrections": "", "head_matter": "SARAH ISADORA McKOY, Plaintiff v. WILLIS EUGENE McKOY, Defendant\nNo. COA09-447\n(Filed 16 February 2010)\nGuardian and Ward\u2014 jurisdiction \u2014 custody of incompetent adult\nThe trial court erred by denying plaintiffs motion to dismiss the parties\u2019 custody action, which was part of their larger divorce and equitable distribution action, for lack of jurisdiction under Chapter 50. After the clerk of superior court adjudicated the parties\u2019 adult child an incompetent adult under Chapter 35A, the clerk retained exclusive jurisdiction to resolve all disputes regarding guardianship. The district court obtains jurisdiction under N.C.G.S. \u00a7 50-13.8 to determine custody only when the disabled adult child at issue has not been declared incompetent and had a guardian appointed. The parties should have filed a motion in the cause under N.C.G.S. \u00a7 35A-1207(a) with the clerk in order to resolve the dispute in accordance with N.C.G.S. \u00a7 35A-1203(c).\nAppeal by plaintiff from orders entered 5 September 2006 and 19 March 2007 by Judge Chester C. Davis in Forsyth County District Court. Heard in the Court of Appeals 4 November 2009.\nRobinson & Lawing, LLP, by Michelle D. Reingold, for plaintiff-appellant.\nNo brief filed on behalf of defendant-appellee." }, "file_name": "0509-01", "first_page_order": 537, "last_page_order": 543 }