Benson v. Benson

Court of Appeals of North Carolina

Benson v. Benson

249 S.E.2d 877, 39 N.C. App. 254, 1978 N.C. App. LEXIS 2372

CourtCourt of Appeals of North Carolina

DecidedDecember 19, 1978

DocketNo. 7823DC268

StatusPublished

Cited by2 cases

This text of 249 S.E.2d 877 (Benson v. Benson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benson v. Benson, 249 S.E.2d 877, 39 N.C. App. 254, 1978 N.C. App. LEXIS 2372 (N.C. Ct. App. 1978).

Pincite

Opinion

MITCHELL, Judge.

■The defendant assigns as error the trial court’s actions in conducting a hearing and awarding custody of the minor child to the plaintiff. In support of this assignment, the defendant contends that her action was commenced in Anson County prior to the commencement of this action and vested exclusive jurisdiction and venue of the child custody proceeding in Anson County. We agree.

No other actions concerning the matters raised in this action were pending at the time the defendant filed her complaint commencing her action against the plaintiff in Anson County. The defendant’s complaint in the Anson County action was filed one day prior to the filing of the plaintiff’s complaint in this action in Wilkes County. Generally speaking, actions for child custody, child support and alimony follow the same procedures as other civil actions. G.S. 50-13.5(a); G.S. 50-16.8(a). “A civil action is commenced by filing a complaint with the court.” G.S. 1A-1, Rule 3. Once an action is commenced, it is pending before the court. “If there is a pending action for annulment, divorce, or alimony without divorce, there cannot be any subsequent action or proceeding instituted for the custody and the support of a minor child of the marriage, it being necessary for a determination of custody and support of the minor child, that the issue be joined in the pending action or by a motion in the cause in such action.” 3 Lee, North Carolina Family Law § 222 (1976 Supp.).

The defendant’s action in Anson County seeking alimony without divorce, child custody and child support, having been commenced prior to the commencement of this action in Wilkes County, the trial court was without jurisdiction to entertain this independent action by the plaintiff for custody of the minor child. G.S. 50-13.5(f); Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E. 2d 923 (1978). The trial court did not have jurisdiction to consider [256]*256any matter arising from the plaintiffs complaint, and the entire proceeding before the trial court and its order are, therefore, null and void. Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E. 2d 923 (1978); Hopkins v. Hopkins, 8 N.C. App. 162, 174 S.E. 2d 103 (1970). The order of the trial court must be and is vacated and the cause remanded.

Vacated and remanded.

Judges Clark and Webb concur.

Free access — add to your briefcase to read the full text and ask questions with AI

MITCHELL, Judge.

■The defendant assigns as error the trial court’s actions in conducting a hearing and awarding custody of the minor child to the plaintiff. In support of this assignment, the defendant contends that her action was commenced in Anson County prior to the commencement of this action and vested exclusive jurisdiction and venue of the child custody proceeding in Anson County. We agree.

No other actions concerning the matters raised in this action were pending at the time the defendant filed her complaint commencing her action against the plaintiff in Anson County. The defendant’s complaint in the Anson County action was filed one day prior to the filing of the plaintiff’s complaint in this action in Wilkes County. Generally speaking, actions for child custody, child support and alimony follow the same procedures as other civil actions. G.S. 50-13.5(a); G.S. 50-16.8(a). “A civil action is commenced by filing a complaint with the court.” G.S. 1A-1, Rule 3. Once an action is commenced, it is pending before the court. “If there is a pending action for annulment, divorce, or alimony without divorce, there cannot be any subsequent action or proceeding instituted for the custody and the support of a minor child of the marriage, it being necessary for a determination of custody and support of the minor child, that the issue be joined in the pending action or by a motion in the cause in such action.” 3 Lee, North Carolina Family Law § 222 (1976 Supp.).

The defendant’s action in Anson County seeking alimony without divorce, child custody and child support, having been commenced prior to the commencement of this action in Wilkes County, the trial court was without jurisdiction to entertain this independent action by the plaintiff for custody of the minor child. G.S. 50-13.5(f); Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E. 2d 923 (1978). The trial court did not have jurisdiction to consider [256]*256any matter arising from the plaintiffs complaint, and the entire proceeding before the trial court and its order are, therefore, null and void. Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E. 2d 923 (1978); Hopkins v. Hopkins, 8 N.C. App. 162, 174 S.E. 2d 103 (1970). The order of the trial court must be and is vacated and the cause remanded.

Vacated and remanded.

Judges Clark and Webb concur.

Cite This Page — Counsel Stack

Bluebook (online)

249 S.E.2d 877, 39 N.C. App. 254, 1978 N.C. App. LEXIS 2372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benson-v-benson-ncctapp-1978.

Opinion

Related

Cite This Page — Counsel Stack