{ "id": 8525892, "name": "DORA KATHERN S. HALL v. WAYNE EUGENE HALL", "name_abbreviation": "Hall v. Hall", "decision_date": "1984-01-03", "docket_number": "No. 8312DC33", "first_page": "797", "last_page": "800", "citations": [ { "type": "official", "cite": "65 N.C. App. 797" } ], "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": "203 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "285 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562608 ], "year": 1974, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0145-01" ] }, { "cite": "266 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553723 ], "year": 1980, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0787-01" ] }, { "cite": "254 S.E. 2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 740", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571176 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0740-01" ] }, { "cite": "64 S.E. 2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "pin_cites": [ { "page": "856" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "233 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611773 ], "weight": 2, "year": 1951, "pin_cites": [ { "page": "504" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0493-01" ] }, { "cite": "250 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "287-88", "parenthetical": "quoting In re Blalock, 233 N.C. 493, 504, 64 S.E. 2d 848, 856 (1951)" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550498 ], "year": 1978, "pin_cites": [ { "page": "89", "parenthetical": "quoting In re Blalock, 233 N.C. 493, 504, 64 S.E. 2d 848, 856 (1951)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0077-01" ] }, { "cite": "246 S.E. 2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563683, 8563718, 8563572, 8563607, 8563641 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0465-04", "/nc/295/0465-05", "/nc/295/0465-01", "/nc/295/0465-02", "/nc/295/0465-03" ] }, { "cite": "243 S.E. 2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552604 ], "year": 1978, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0246-01" ] }, { "cite": "279 S.E. 2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573818 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0367-01" ] }, { "cite": "274 S.E. 2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "302 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564388 ], "year": 1981, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0189-01" ] }, { "cite": "292 S.E. 2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525570 ], "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0650-01" ] } ], "analysis": { "cardinality": 437, "char_count": 7790, "ocr_confidence": 0.796, "pagerank": { "raw": 1.1369844775438424e-07, "percentile": 0.5775431308929594 }, "sha256": "c2ac71d8aac9fab53790521bec17330b1c9a94886bf3810928d7934fc43f76e9", "simhash": "1:50a37cab591f9149", "word_count": 1303 }, "last_updated": "2023-07-14T21:11:09.312138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges-WEBB and WELLS concur." ], "parties": [ "DORA KATHERN S. HALL v. WAYNE EUGENE HALL" ], "opinions": [ { "text": "WHICHARD, Judge.\nI.\nThe issue is whether defendant, who was not served with summons, made a general appearance which entitled the court to exercise jurisdiction over him. We answer in the affirmative, and thus affirm the trial court.\nII.\nThe following facts are not disputed:\nPlaintiff-wife and defendant-husband separated while living in Okinawa. Plaintiff and the minor child born of the marriage moved to Fayetteville, North Carolina, where plaintiff purchased a home in her name and defendant\u2019s. Defendant has not been a legal resident of North Carolina since 1964. He has been a legal resident of Florida since 1972.\nPlaintiff commenced this action against defendant seeking alimony, custody, and child support. Her attorney filed an affidavit averring that defendant had been served by certified mail with summons which was in fact received by one E. C. Hall, a person of suitable age and discretion who resides at defendant\u2019s dwelling house or usual place of abode.\nCounsel for defendant thereafter moved that the action be dismissed for want of personal jurisdiction. The motion alleged that the attempted service had been received by defendant\u2019s father; that defendant was not a party who, when service of process was made, was present within the state; that he was not a party who, when service of process was made, was a natural person domiciled within the state; and that this is not an action which arises out of a marital relationship within this state.\nThe trial court entered findings and conclusions, awarded custody to plaintiff, and ordered defendant to pay alimony pen-dente lite and child support. In a subsequent order, from which this appeal was taken, it found as a fact, to which defendant has not excepted, that the following occurred thereafter:\n[0]n February 10, 1982, Defendant filed a Motion to dismiss the action of the Plaintiff for lack of jurisdiction over the person of the Defendant and for insufficient service of process; that said Motion came on for hearing before this Court on June 1, 1982, wherein the Defendant moved the Court for leave to withdraw his Motion to dismiss for lack of jurisdiction and insufficiency of process to enable him to file a new Motion to set aside the Plaintiffs order and Defendant was granted leave to file further Motions as he saw fit; that on June 25, 1982, Defendant filed the present Motion to dismiss said action for lack of jurisdiction over the Defendant and to set aside the Order entered by this Court on January 13, 1982, but filed on April 26, 1982.\nIt concluded \u201c[t]hat Defendant\u2019s appearance through counsel on June 1, 1982, requesting a withdrawal of his Motion to Dismiss for lack of jurisdiction and insufficiency of process, and obtaining leave to file further Motion is a general appearance within the meaning of G.S. 1-75.7(1), justifying the assumption of personum [sic] jurisdiction by this Court.\u201d It thereupon set aside its prior order, dismissed defendant\u2019s motion to dismiss, granted defendant thirty days to file further pleadings, and retained the cause for further orders.\nFrom this order, defendant appeals.\nIII.\nBecause the order rules adversely to defendant as to the jurisdiction of the court over his person, he has the right of immediate appeal. G.S. l-277(b).\nr \u2014 I <\nBecause defendant did not except to the above quoted finding regarding his 1 June 1982 appearance, it is presumed to be supported by competent evidence and is binding on appeal. Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E. 2d 159, 161 (1982). The question is whether it sustains the court\u2019s conclusion that defendant has made a general appearance in the action.\n\u201c[A] general appearance will waive the right to challenge personal jurisdiction only when it is made prior to the proper filing of a Rule 12(b)(2) motion contesting jurisdiction over the person.\u201d Lynch v. Lynch, 302 N.C. 189, 197, 274 S.E. 2d 212, 219, modified and affirmed, 303 N.C. 367, 279 S.E. 2d 840 (1981). Defendant\u2019s initial action was the filing of a motion which, inter alia, sought dismissal pursuant to Rule 12(b)(2) for lack of jurisdiction over his person. Nothing else appearing, then, a subsequent general appearance would not have waived his right to challenge personal jurisdiction.\nThe above finding establishes, however, that while this motion was pending defendant moved for leave to withdraw it. He further sought leave to file a new motion to set aside plaintiffs order, and he was granted leave to file further motions as he saw fit.\n\u201cA court of this State having jurisdiction of the subject matter may, without serving a summons upon him, exercise jurisdiction in an action over a person: (1) Who makes a general appearance in an action . . . .\u201d G.S. 1-75.7. The concept of a general appearance should be given a liberal construction. Alexiou v. O.R.I.P., Ltd., 36 N.C. App. 246, 248, 243 S.E. 2d 412, 414, disc. rev. denied, 295 N.C. 465, 246 S.E. 2d 215 (1978). \u201c[A] general appearance is one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person.\u201d Swenson v. Thibaut, 39 N.C. App. 77, 89, 250 S.E. 2d 279, 287-88 (1978) (quoting In re Blalock, 233 N.C. 493, 504, 64 S.E. 2d 848, 856 (1951)), disc. rev. denied and appeal dismissed, 296 N.C. 740, 254 S.E. 2d 183 (1979). Defendant must have asked for or received some relief in the cause or participated in some step taken therein. The test is whether he became an actor in the cause. Williams v. Williams, 46 N.C. App. 787, 789, 266 S.E. 2d 25, 27 (1980).\nBy moving for leave to withdraw his motion challenging the court\u2019s jurisdiction over his person, defendant removed the preventive effect of that motion against the normal waiver effect of appearance for other purposes. See Lynch v. Lynch, supra. By then seeking leave to file a new motion to set aside the order for alimony pendente lite and child support, and receiving leave to file further motions as he saw fit, defendant requested and received \u201csome relief in the cause.\u201d He thus became an actor in the cause, thereby submitting his person to the jurisdiction of the court. This general appearance obviated the necessity of service of summons. Simms v. Stores, Inc., 285 N.C. 145, 157, 203 S.E. 2d 769, 777 (1974); Blalock, supra, 233 N.C. at 504, 64 S.E. 2d at 856.\nFor the foregoing reasons, the order is\nAffirmed.\nJudges-WEBB and WELLS concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Harris, Sweeny & Mitchell, by Ronnie M. Mitchell, and Blackwell, Thompson, Swaringen, Johnson & Thompson, P.A., by John V Blackwell, Jr., for plaintiff appellee.", "Reid, Lewis & Deese, by Marland C. Reid and Renny W. Deese, for defendant appellant." ], "corrections": "", "head_matter": "DORA KATHERN S. HALL v. WAYNE EUGENE HALL\nNo. 8312DC33\n(Filed 3 January 1984)\nAppearance \u00a7 1.1; Divorce and Alimony \u00a7 1\u2014 jurisdiction \u2014leave to withdraw motion challenging court\u2019s jurisdiction \u2014filing new motions to set aside the order of alimony \u2014 general appearance\nBy moving for leave to withdraw a motion challenging the court\u2019s jurisdiction over his person, defendant removed the preventive effect of that motion against the normal waiver effect of appearance for other purposes, and by then seeking leave to file a new motion to set aside the order for alimony pendente lite and child support, and receiving leave to file further motions as he saw fit, defendant requested and received \u201csome relief in the cause.\u201d He thus became an actor in the cause, thereby submitting his person to the jurisdiction of the court. This general appearance obviated the necessity of service of summons.\nAPPEAL by defendant from Hair, Judge. Order entered 18 August 1982 in District Court, CUMBERLAND County. Heard in the Court of Appeals 2 December 1983.\nHarris, Sweeny & Mitchell, by Ronnie M. Mitchell, and Blackwell, Thompson, Swaringen, Johnson & Thompson, P.A., by John V Blackwell, Jr., for plaintiff appellee.\nReid, Lewis & Deese, by Marland C. Reid and Renny W. Deese, for defendant appellant." }, "file_name": "0797-01", "first_page_order": 829, "last_page_order": 832 }