{ "id": 4079101, "name": "BEATRIZ BAUMANN-CHACON, Plaintiff v. KARSTEN BAUMANN, Defendant", "name_abbreviation": "Baumann-Chacon v. Baumann", "decision_date": "2011-05-17", "docket_number": "No. COA10-359", "first_page": "137", "last_page": "147", "citations": [ { "type": "official", "cite": "212 N.C. App. 137" } ], "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": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "year": 2006, "pin_cites": [ { "page": "793", "parenthetical": "stating that \"[sjubject matter jurisdiction 'cannot be conferred upon a court by consent, waiver or estoppel,' \" so that a \" 'failure to ... object to the [lack of] jurisdiction is immaterial' \"" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "624 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634820 ], "year": 2006, "pin_cites": [ { "page": "348", "parenthetical": "citing Elec. Supply Co. of Durham v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0345-01" ] }, { "cite": "273 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "734" }, { "page": "735" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2676672 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "398" }, { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0394-01" ] }, { "cite": "366 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522763 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0458-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 5043.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "407 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "263" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 801", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523725 ], "year": 1991, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0801-01" ] }, { "cite": "154 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "270 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566436 ], "year": 1967, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0180-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "595", "parenthetical": "stating that \"[sjubject matter jurisdiction 'cannot be conferred upon a court by consent, waiver or estoppel,' \" so that a \" 'failure to ... object to the [lack of] jurisdiction is immaterial' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "110 S.E. 863", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "opinion_index": 0 }, { "cite": "183 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655593 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/183/0139-01" ] }, { "cite": "79 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "251", "parenthetical": "citing Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922)" }, { "page": "250-51", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "239 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625828 ], "year": 1953, "pin_cites": [ { "page": "100", "parenthetical": "citing Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922)" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0097-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "204 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "563" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 403", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556236 ], "year": 1974, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0403-01" ] }, { "cite": "484 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "530", "parenthetical": "discussing the \"state's well-established interest in protecting the welfare of children\"" } ], "opinion_index": 0 }, { "cite": "346 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139523 ], "year": 1997, "pin_cites": [ { "page": "72", "parenthetical": "discussing the \"state's well-established interest in protecting the welfare of children\"" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0068-01" ] }, { "cite": "245 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562565, 8562540, 8562521, 8562619, 8562588 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0261-03", "/nc/295/0261-02", "/nc/295/0261-01", "/nc/295/0261-05", "/nc/295/0261-04" ] }, { "cite": "208 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "240-41" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548012 ], "year": 1974, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0102-01" ] }, { "cite": "228 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555591 ], "year": 1976, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0683-01" ] }, { "cite": "242 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "396-97" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551026 ], "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0610-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" }, { "page": "(c)" }, { "page": "(c)(l)" }, { "page": "(c)(2)" }, { "page": "(g)" }, { "page": "(b)" }, { "page": "(g)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(a)" }, { "page": "(e)" }, { "page": "(e)", "parenthetical": "stating that \"[p]ayment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order\"" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "360 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794819 ], "year": 2006, "pin_cites": [ { "page": "268", "parenthetical": "citing Elec. Supply Co. of Durham v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0263-01" ] }, { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "392 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "607", "parenthetical": "citing In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978)" } ], "opinion_index": 0 }, { "cite": "326 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309774 ], "year": 1990, "pin_cites": [ { "page": "739", "parenthetical": "citing In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0732-01" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "385", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "629", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "119 S. Ct. 1576", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11633683 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/br/232/1576-01" ] }, { "cite": "143 L. Ed. 2d 671", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1098", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11178628, 11178790, 11178507, 11178542, 11178897, 11178867, 11178836, 11178709, 11178675, 11178586, 11178751 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1098-04", "/us/526/1098-08", "/us/526/1098-01", "/us/526/1098-02", "/us/526/1098-11", "/us/526/1098-10", "/us/526/1098-09", "/us/526/1098-06", "/us/526/1098-05", "/us/526/1098-03", "/us/526/1098-07" ] }, { "cite": "507 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "349 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571505 ], "year": 1998, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0290-01" ] }, { "cite": "548 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "517", "parenthetical": "citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671, 119 S. Ct. 1576 (1999)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 659", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135857 ], "year": 2001, "pin_cites": [ { "page": "664", "parenthetical": "citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671, 119 S. Ct. 1576 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0659-01" ] }, { "cite": "16 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "220 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11298486 ], "year": 1941, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0018-01" ] }, { "cite": "31 S.E. 265", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1898, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "123 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657012 ], "year": 1898, "pin_cites": [ { "page": "21-22" } ], "opinion_index": 0, "case_paths": [ "/nc/123/0019-01" ] }, { "cite": "92 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "678", "parenthetical": "stating that \" 'subject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act' \"" } ], "opinion_index": 0 }, { "cite": "244 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219548 ], "year": 1956, "pin_cites": [ { "page": "90", "parenthetical": "stating that \" 'subject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0084-01" ] }, { "cite": "302 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "793", "parenthetical": "explaining that subject matter jurisdiction is \"the power to pass on the merits of the case\"" } ], "opinion_index": 0 }, { "cite": "308 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707437 ], "year": 1983, "pin_cites": [ { "page": "491", "parenthetical": "explaining that subject matter jurisdiction is \"the power to pass on the merits of the case\"" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0488-01" ] }, { "cite": "529 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "513-14", "parenthetical": "stating that an \"appellate court reviews de novo an order of the trial court allowing a motion to dismiss for lack of subject matter jurisdiction, but the trial court's findings of fact axe binding on appeal if supported by competent evidence\"" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11096131 ], "year": 2000, "pin_cites": [ { "page": "757", "parenthetical": "stating that an \"appellate court reviews de novo an order of the trial court allowing a motion to dismiss for lack of subject matter jurisdiction, but the trial court's findings of fact axe binding on appeal if supported by competent evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0755-01" ] } ], "analysis": { "cardinality": 1041, "char_count": 26977, "ocr_confidence": 0.75, "pagerank": { "raw": 6.240799296801584e-08, "percentile": 0.3856807867949058 }, "sha256": "7c38970092f66bef2ff37b561ec92ac1828c0f648676978cb192d4246bdcd724", "simhash": "1:8b8856b656a95cf0", "word_count": 4389 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McGEE concur." ], "parties": [ "BEATRIZ BAUMANN-CHACON, Plaintiff v. KARSTEN BAUMANN, Defendant" ], "opinions": [ { "text": "ERVIN, Judge.\nPlaintiff Beatriz Baumann-Chacon appeals from a judgment dismissing her claims for child custody, child support, and spousal support on the grounds that the trial court lacked jurisdiction over the subject matter of those claims. After careful consideration of Plaintiffs challenges to the trial court\u2019s judgment in light of the record and the applicable law, we find no error in the trial court\u2019s decision to dismiss Plaintiff\u2019s spousal support claim. On the other hand, we conclude that the trial court\u2019s decision to dismiss Plaintiff\u2019s claims for child custody and child support on subject matter jurisdiction grounds should be reversed and that this case should be remanded to the trial court for further proceedings not inconsistent with this opinion.\nI. Factual Background\nPlaintiff and Defendant Karsten Baumann were married on 5 November 1994. Two children were subsequently born of the parties\u2019 marriage.\nOn 29 April 2009, Plaintiff filed a complaint against Defendant in the Wake County District Court seeking temporary and permanent custody of the parties\u2019 children, temporary and permanent child support, postseparation support and alimony, and attorney\u2019s fees. As of the filing of Plaintiff\u2019s complaint, the parties had not separated. In her complaint, Plaintiff alleged that she \u201cdesire[d] to separate from [Defendant], but believes it is in the parties\u2019 and minor children\u2019s best interest that the issues set forth herein be resolved before said separation occurs[.]\u201d On 7 July 2009, Defendant filed an answer in which he responded to the material allegations of Plaintiff\u2019s complaint; asserted a number of affirmative defenses; and counterclaimed for custody and child support.\nThe issues raised by the parties\u2019 pleadings came on for hearing before the trial court at the 9 September 2009 session of Wake County District Court. After hearing the parties\u2019 testimony and the arguments of counsel, the trial court entered an order on 19 January 2010 in which it made the following findings of facts:\n1. Both parties are residents of Wake County, North Carolina, and have so resided for . at least six (6) months prior to the commencement of this action.\n2. The parties were married on November 5, 1994 and were currently married and still residing together with their minor children in the marital home on the date of the hearing (September 9, 2009).\n3. Two children were born of the marriage[.]\n4. Neither party filed a claim for divorce from bed and board in the instant action.\n5. Plaintiff made no written allegations of marital misconduct on the part of Defendant in her complaint. Her financial affidavit listed her current expenses and her \u201canticipated\u201d expenses, which she testified were estimates of the expenses she would incur after moving out of the marital residence.\n6. Plaintiff desires to separate from Defendant and requested that the Court enter temporary orders on child custody, child support and post separation support prior to her leaving the residence and obtaining alternate housing.\n7. Plaintiff has not asked the Court to remove the Defendant from the marital home.\n8. Plaintiff testified that [she] did not wish to vacate the marital home herself without having a ruling on temporary child custody before she moved out.\nBased on these findings of fact, the trial court concluded as a matter of law that:\n1. This Court has personal jurisdiction over the parties to this action; however, this Court does not have subject matter jurisdiction in the instant action under the circumstances existing at the time this matter was called for trial on September 9, 2009 because there was no evidence of a physical separation and there was no pending claim by Plaintiff for divorce from bed and board or possession of the marital residence.\n2. The Plaintiffs complaint should be dismissed for lack of subject matter jurisdiction.\nPlaintiff noted an appeal to this Court from the trial court\u2019s judgment.\nII. Legal Analysis\nOn appeal, Plaintiff argues that the trial court erred by dismissing her claims for child custody, child support, and postseparation support on subject matter jurisdiction grounds. We review the trial court\u2019s decision utilizing a de novo standard of review. Cooke v. Faulkner, 137 N.C. App. 755, 757, 529 S.E.2d 512, 513-14 (2000) (stating that an \u201cappellate court reviews de novo an order of the trial court allowing a motion to dismiss for lack of subject matter jurisdiction, but the trial court\u2019s findings of fact axe binding on appeal if supported by competent evidence\u201d) (citation omitted). After reviewing the trial court\u2019s order in a manner consistent with the applicable standard of review, we conclude that Plaintiff\u2019s challenge to the dismissal of her child custody and child support claims has merit and that the trial court correctly dismissed her spousal support claim. As a result, we affirm the trial court\u2019s judgment in part, reverse the trial court\u2019s judgment in part, and remand this case to the Wake County District Court for further proceedings not inconsistent with this opinion.\nA. Subject Matter Jurisdiction\nA court must, in order to properly decide a case, have jurisdiction over the type of case under consideration. Boyles v. Boyles, 308 N.C. 488, 491, 302 S.E.2d 790, 793 (1983) (explaining that subject matter jurisdiction is \u201cthe power to pass on the merits of the case\u201d) (citations omitted). Hart v. Thomasville Motors, Inc., 244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956) (stating that \u201c \u2018subject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act\u2019 \u201d) (quoting Stafford v. Gallops, 123 N.C. 19, 21-22, 31 S.E. 265, 266 (1898)). The General Assembly is, \u201cwithin constitutional limitations, [empowered to] fix and circumscribe the jurisdiction of the courts of this State.\u201d In re T.R.P., 360 N.C. at 590, 636 S.E.2d at 790 (quoting Bullington v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941)). As a result, our decision in this case hinges upon a proper construction of the statutory provisions governing claims for child custody, child support, and spousal support.\n\u201cThe principal goal of statutory construction is to accomplish the legislative intent.\u201d Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671, 119 S. Ct. 1576 (1999)). \u201cThe best indicia of that intent are the language of the statute ..., the spirit of the act and what the act seeks to accomplish.\u201d Concrete Co. v. Board of Commissioners, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations omitted). \u201cIndividual expressions must be construed as part of the composite whole and be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.\u201d State v. Tew, 326 N.C. 732, 739, 392 S.E.2d 603, 607 (1990) (citing In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978)). \u201cThe Court may also consider the policy objectives prompting passage of the statute and should avoid a construction which defeats or impairs the purpose of the statute.\u201d O & M Indus. v. Smith Eng\u2019r. Co., 360 N.C. 263, 268, 624 S.E.2d 345, 348 (2006) (citing Elec. Supply Co. of Durham v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)). Thus, we will attempt to construe the relevant statutory provisions utilizing these well-' established rules of construction.\nB. Child Custody and Child Support\nAccording to N.C. Gen. Stat. \u00a7 50-13.1(a), \u201c[a]ny 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[.]\u201d Similarly, N.C. Gen. Stat. \u00a7 50-13.4(a) provides that \u201c[a]ny parent, or any person, agency, organization or institution having custody of a minor child, or bringing an action or proceeding for the custody of such child, or a minor child by his guardian may institute an action for the support of such child[.]\u201d N.C. Gen. Stat. \u00a7 50-13.5(a) delineates the proper \u201cprocedure [for use] in actions for custody and support of minor children[,]\u201d so we will consider Plaintiffs challenge to the trial court\u2019s ruling concerning her child custody and child support claims in combination.\nAn action for custody or support of children may be brought as \u201ca civil action[,]\u201d separate and apart from an action for \u201cannulment...[,] divorce, either absolute or from bed and board, or . . . alimony without divorce.\u201d N.C. Gen. Stat. \u00a7 50-13.5(b). In addition, N.C. Gen. Stat. \u00a7 50-13.5(c) specifically provides that \u201c[t]he jurisdiction of the courts of this State to enter orders providing for the support of a minor child shall be as in actions or proceedings for the payment of money or the transfer of property,\u201d N.C. Gen. Stat. \u00a7 50-13.5(c)(l), and that \u201c[t]he courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under [N.C. Gen. Stat. \u00a7\u00a7 50A-201, 50A-202, and 50A-204]\u201d, none of which have any bearing on the exact issue before us in this case. N.C. Gen. Stat. \u00a7 50-13.5(c)(2). Finally, the General Assembly has clearly stated that \u201c[o]rders for custody and support of minor children may be entered when the matter is before the court as provided by this section, irrespective of the rights of the wife and the husband as between themselves in an action for annulment or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.\u201d N.C. Gen. Stat. \u00a7 50-13.5(g).\nBased upon our examination of the relevant provisions of N.C. Gen. Stat. \u00a7\u00a7 50-13.1 and 50-13.5, we are unable to agree with the trial court\u2019s conclusion that, absent \u201cphysical separation ... [or a claim for] divorce from bed and board or possession of the marital residence [,]\u201d courts lack subject matter jurisdiction over claims for custody or child support. Aside from our inability to identify any support for such an interpretation in the relevant statutory language, our conclusion that the trial court\u2019s decision was in error is reinforced by the history of the applicable statutory provisions and the reasons underlying their enactment.\nPrior to its repeal and replacement with new statutory language in 1967, N.C. Gen. Stat. \u00a7 50-13 specifically provided that custody-related issues could be litigated in instances involving either a divorce or separation. 1967 N.C. Sess. Law ch. 1153, \u00a7 1. The General Assembly\u2019s decisions to repeal this statutory limitation on the availability of child custody and child support actions and to refrain from including similar language in the replacement legislation strongly suggests that the General Assembly did not intend to preclude the litigation of child custody and child support issues outside the context of physical separation or the institution of an action for divorce from bed and board, particularly given the language contained in N.C. Gen. Stat. \u00a7 50-13.5(b) stating that custody and support claims may be maintained in \u201ca civil action\u201d without the necessity for joinder with other claims typically asserted at the time that a party seeks the dissolution of the marital relationship and the language contained in N.C. Gen. Stat. \u00a7 50-13.5(g) indicating the irrelevance \u201cof the rights of the wife and the husband as between themselves\u201d to a trial court\u2019s ability to enter orders addressing child custody and child support claims. Thus, aside from the absence of any language in the relevant statutory provisions that supports the trial court\u2019s decision, nothing in what we have been able to discern concerning the General Assembly\u2019s intent suggests the existence of a jurisdictional limitation on the availability of child custody and child support actions like that upon which the trial court relied.\nThe fact that Plaintiff and Defendant continued to live within the same residence at the time of the hearing before the trial court does not require us to reach a different result. According to N.C. Gen. Stat. \u00a7 50-13.4(e), a trial court is authorized to address possession of the marital home in awarding child support without any indication that a divorce, either absolute or from bed and board, or separation is a necessary precondition for such an award. N.C. Gen. Stat. \u00a7 50-13.4(e) (stating that \u201c[p]ayment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order\u201d); see also Martin v. Martin, 35 N.C. App. 610, 615, 242 S.E.2d 393, 396-97 (stating that \u201c[w]e have previously rejected the contention that our courts may not award possession of real estate as a part of child support\u201d on the theory that \u201c \u2018shelter is a necessary component of a child\u2019s needs and in many instances it is more feasible for a parent to provide actual shelter as part of his child support obligations than it is for the parent to provide monetary payments to obtain shelter\u2019 \u201d ) (citing Arnold v. Arnold, 30 N.C. App. 683, 685, 228 S.E.2d 48, 50 (1976), and quoting Boulware v. Boulware, 23 N.C. App. 102, 103, 208 S.E.2d 239, 240-41 (1974)), cert. denied, 295 N.C. 261, 245 S.E.2d 778 (1978); Suzanne Reynolds, 1 Lee\u2019s North Carolina Family Law \u00a7 6.23(A) (5th ed. 1993) (stating that \u201ca court may order possession of real property as a payment of child support or as a way to effectuate an order for custody\u201d). In light of the absence of any indication in the relevant statutory language that the parents must have physically separated or initiated an action for divorce from bed and board as a precondition for the entry of an order awarding the marital residence as a component of child support, we find further evidence that the General Assembly did not intend to require physical separation or the initiation of an action for divorce from bed and board as a precondition for the maintenance of claims for child custody and child support.\nFinally, the policy justifications for child custody and child support awards militate in favor of a determination that relief is available pursuant to N.C. Gen. Stat. \u00a7\u00a7 50-13.1 and 50-13.4 even if the parties are not living separate and apart and have not initiated an action for divorce from bed and board. In essence, the purpose of actions for child custody and child support is, consistently with the law\u2019s overriding interest in protecting minor children, to assure that the needs of such children are adequately met. See Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530 (1997) (discussing the \u201cstate\u2019s well-established interest in protecting the welfare of children\u201d). Although there is no question but that, in most instances, the entry of a formal order addressing child custody and child support issues would be unnecessary in the event that the children\u2019s parents are living together and providing adequate support for their children, we are able to foresee situations, such as the one at issue here, where that might not necessarily be the case. In particular, there might be merit in having child custody and child support issues adjudicated prior to separation in order to ensure that the children of the separating parents are properly addressed. As a result, particularly given the general principle that \u201c[a] court having jurisdiction of children located within the state surely has the inherent authority to protect those children and make such temporary orders as their best interests may require[,]\u201d MacKenzie v. MacKenzie, 21 N.C. App. 403, 407, 204 S.E.2d 561, 563 (1974), we find that child custody and child support claims are not precluded by the fact that Plaintiff and Defendant have neither physically separated nor asserted divorce from bed and board claims against each other and that the trial court erred by dismissing Plaintiff\u2019s child custody and child support claims on subject matter jurisdiction grounds.\nC. Spousal Support\nSpousal support claims, whether in the form of claims for post-separation support, alimony, or both, are readily distinguishable from child custody and child support claims in that they relate to the economic needs of dependent spouses rather than the custody and care of minor children. For that reason, we reach a different result with respect to the issue of the necessity for a physical separation or the initiation of an action for divorce from bed and board as a prerequisite for the maintenance of a spousal support claim and, for that and other reasons, affirm the trial court\u2019s decision to dismiss Plaintiff\u2019s spousal support claim on jurisdictional grounds.\nThe General Assembly has defined postseparation support as \u201cspousal support to be paid until the earlier of any of the following:\na. The date specified in the order for postseparation support.\nb. The entry of an order awarding or denying alimony.\nc. The dismissal of the alimony claim.\nd. The entry of a judgment of absolute divorce if no claim of alimony is pending at the time of entry of the judgment of absolute divorce.\ne. Termination of postseparation support as provided in [N.C. Gen. Stat. \u00a7] 50-16.9(b). Postseparation support may be ordered in an action for divorce, whether absolute or from bed and board, for annulment, or for alimony without divorce. However, if postseparation support is ordered at the time of the entry of a judgment of absolute divorce, a claim for alimony must be pending at the time of the entry of the judgment of divorce.\nN.C. Gen. Stat. \u00a7 50-16.1A(4). Alimony is defined as \u201cpayment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.\u201d N.C. Gen. Stat. \u00a7 50-16.1A(1). As a result of the fact that Plaintiff\u2019s appellate challenge to the trial court\u2019s order focuses exclusively on the dismissal of her claim for postseparation support, we limit our discussion to a determination of whether \u201c[a] trial court [has] subject matter jurisdiction to award post separation support pre-date of separation of the parties.\u201d\nN.C. Gen. Stat. \u00a7 50-16.2A provides that:\n(a) In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for postseparation support. The verified pleading, verified motion, or affidavit of the moving party shall set forth the factual basis for the relief requested.\n(b) In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties\u2019 accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party\u2019s respective legal obligations to support any other persons.\n(c) Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.\n(d) At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support. When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.\n(e) Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation.\nA careful reading of this statutory language reveals the presence of no less than three references to the \u201cdate of separation.\u201d Based upon that fact, it appears to us that the General Assembly has not contemplated the availability of postseparation support in the event that the parties have not physically separated. As a result, despite Plaintiffs observation that the statute \u201cmakes no reference to any required timing for the filing of the [postseparation support] claim,\u201d we believe that the occurrence of a separation is presumed in the context of post-separation support claims.\nThe purpose of postseparation support is to ensure \u201csubsistence for the [dependent spouse] during the period of separation.\u201d Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 251 (1953) (citing Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922)). As a result, whenever there is a \u201creconciliation and resumption of marital relations in the home, the necessity for [such support] ceases [,]\u201d so that \u201can allowance for temporary alimony falls\u201d upon the \u201creconciliation between husband and wife who have been living apart.\u201d Id. at 100, 79 S.E.2d at 250-51 (citations omitted). Although we understand the concerns that motivate Plaintiff to seek an award of spousal support before separating from Defendant, we cannot overlook the fact that the relevant statutory language clearly presupposes that the parties have already separated. Had the General Assembly intended that claims lodged pursuant to N.C. Gen. Stat. \u00a7 50-16.2A could be litigated and decided prior to separation, it would not have made so many references to the parties\u2019 separation in the relevant statutory language. As a result, we are unable to determine that the General Assembly authorized the maintenance of a claim for postseparation support under such circumstances. Thus, we conclude that the trial court correctly dismissed Plaintiff\u2019s claim for postseparation support on subject matter jurisdiction grounds.\nIII. Conclusion\nTherefore, for the reasons set forth above, we conclude that the trial court correctly dismissed Plaintiff\u2019s claim for postseparation support. However, we also conclude that the trial court erred by dismissing Plaintiff\u2019s claims for child custody and child support. As a result, we affirm the portion of the trial court\u2019s order that dismissed Plaintiff\u2019s claim for spousal support, reverse the trial court\u2019s order to the extent that it dismissed Plaintiff\u2019s claim for child custody and child support, and remand this case to the trial court for further proceedings not inconsistent with this opinion.\nAFFIRMED IN PART; REVERSED AND REMANDED IN PART.\nChief Judge MARTIN and Judge McGEE concur.\n. Plaintiff\u2019s claim for attorney\u2019s fees rests on N.C. Gen. Stat. \u00a7\u00a7 50-13.6 and 50-16.4, which authorize such relief in the event that a litigant successfully prosecutes child support, child custody, or spousal support claims and meets any other applicable conditions for such an award. As a result, we need not give separate consideration to the viability of Plaintiff\u2019s claim for attorney\u2019s fees, which rises or falls with her claims for child custody, child support, and spousal support.\n. Defendant did not raise a subject matter jurisdictional challenge to any of Plaintiff\u2019s claims in his answer. However, since the absence of subject matter jurisdiction is not a waivable defense, In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (stating that \u201c[sjubject matter jurisdiction \u2018cannot be conferred upon a court by consent, waiver or estoppel,\u2019 \u201d so that a \u201c \u2018failure to ... object to the [lack of] jurisdiction is immaterial\u2019 \u201d) (quoting In re Sauls, 270 N.C. 180, 187, 154 S.E.2d 327, 333 (1967), we are required to address Plaintiff\u2019s claims on the merits despite the fact that Defendant did not raise a subject matter jurisdiction defense in the court below.\n. Our reading of the relevant statutory provisions is consistent with our decision in Freeman v. Freeman, 103 N.C. App. 801, 803, 407 S.E.2d 262, 263 (1991), in which we stated that \u201cN.C. Gen. Stat. \u00a7 5043.4(a) does not specifically require a judicial determination of custody before a person or agency can bring an action for support.\u201d Id. (citing Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249 (1988)).\n. The purpose served at the time of our decision in Hester is now served by post-separation support.\n. In Harper v. Harper, 50 N.C. App. 394, 398, 273 S.E.2d 731, 734 (1981), this Court addressed a trial court\u2019s ability, \u201cin the absence of allegations... that would also support an award of alimony or divorce],]\u201d to permit one spouse to \u201cmaintain an action to evict the other, get sole custody of the children and obtain an order for child support,\u201d essentially declining to allow \u201cwhat appealed] to be for most practical purposes, a \u2018no fault\u2019 divorce from bed and board.\u2019 \u201d In reaching this conclusion, we stated that, while \u201c [t]he law cannot require [the wife] to live with her husband,... it will not allow her to evict him.\u201d Harper, 50 N.C. App. at 400, 273 S.E.2d at 735. We do not believe that our decision in Harper stands as an insurmountable obstacle to the relief requested by Plaintiff in this case given that Plaintiff has not sought to \u201cevict\u201d Defendant and is, as a result of our decision here, limited to claims for child custody and child support, which may or may not be successful depending on the facts that are ultimately established when Plaintiff\u2019s claim is heard and decided on the merits. In addition, given that the General Assembly amended N.C. Gen. Stat. \u00a7 50-13.4(e) to explicitly allow a trial court to award possession of the marital residence as an element of child support after our decision in Harper, it is. clear that the General Assembly reiterated the paramount importance of ensuring adequate support for minor children shortly after Harper was decided.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Ellis Family Law, PLLC, by Alyscia G. Ellis, for Plaintiff" ], "corrections": "", "head_matter": "BEATRIZ BAUMANN-CHACON, Plaintiff v. KARSTEN BAUMANN, Defendant\nNo. COA10-359\n(Filed 17 May 2011)\n1. Child Custody and Support\u2014 parents not yet separated\u2014 subject matter jurisdiction\nThe trial court erred by dismissing claims for child custody and support for lack of subject matter jurisdiction where the parties had not yet separated.\n2. Divorce\u2014 post-separation support\u2014 pre-separation claim\u2014 no subject matter jurisdiction The trial court correctly dismissed a claim for post separation spousal support for lack of subject matter jurisdiction where the parties had not yet separated. The relevant statutory language clearly presupposed that the parties had already separated.\nAppeal by plaintiff from judgment entered 19 January 2010 by Judge Lori Christian in Wake County District Court. Heard in the Court of Appeals 1 November 2010.\nEllis Family Law, PLLC, by Alyscia G. Ellis, for Plaintiff" }, "file_name": "0137-01", "first_page_order": 147, "last_page_order": 157 }