Scheinert v. Scheinert
Scheinert v. Scheinert
Opinion
*234
Plaintiff Jeanne Southall Scheinert appeals from an order transferring this alimony proceeding from Randolph County to Caswell County under
Facts and Procedural History
Plaintiff Jeanne Southall Scheinert and Defendant Harry Steven Scheinert married in March 1980 and separated in March 2003. At the *235 time of separation, both parties lived in North Carolina. After the separation, Ms. Scheinert filed an action for alimony in Randolph *115 County. The court ordered Mr. Scheinert to pay $3,900.00 per month in alimony to Ms. Scheinert. Ms. Scheinert later moved from North Carolina to Indiana and Mr. Scheinert moved to Caswell County.
On 28 March 2017, Mr. Scheinert filed a motion to transfer the alimony proceeding from Randolph County to Caswell County under
After a hearing, the trial court ordered that the matter be transferred to Caswell County under
Analysis
I. Sufficiency of the trial court's findings of fact
The central issue in this appeal is whether the trial court's order contains sufficient findings to trigger the transfer provision in
The "particular situation" discussed in
Gardner
, as applicable to this alimony proceeding, is this: (1) at the time the alimony action was brought, both parties resided in North Carolina; (2) at that same time, the plaintiff resided in the county where the action was brought, but the defendant resided in a different county; and (3) the plaintiff has since moved out of the State.
See
The parties agree that the first and third criteria are satisfied in this case and that the trial court's order properly found facts supporting those criteria. But they dispute whether the trial court found that Mr. Scheinert resided outside of Randolph County when Ms. Scheinert brought the alimony action.
*236 To be sure, there was at least some competent evidence to support a finding that Mr. Scheinert did not reside in Randolph County when the alimony action commenced. In his verified answer and counterclaim, Mr. Scheinert disputed the allegation that he was a resident of Randolph County and averred that he was a resident of Guilford County. But the only finding addressing this issue in the court's order is the following: "On June 5, 2003, Defendant/Husband filed an Answer and Counterclaim alleging that he was a citizen and resident of Guilford County, North Carolina, as he had moved there recently after the date of separation."
This is not a fact-finding; it is merely a recitation of an allegation in Mr. Scheinert's answer. This Court has repeatedly held that a trial court cannot find facts by merely reciting allegations in the parties' pleadings; instead, the court must make a finding that the allegation is indeed a fact.
See
,
e.g.
,
In re Anderson
,
II. Applicability of
Ms. Scheinert also contends that remand is inappropriate because, as a matter of law,
"Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning."
Wilkie v. City of Boiling Spring Lakes
,
Indeed, at the hearing on this matter, Mr. Scheinert indicated that "[a]t some point, there will be a motion to modify or motion to terminate the alimony" and that he sought to transfer the action to Caswell County so that this future motion could be decided there. This is precisely what the text of the statute anticipates. Accordingly, we reject this argument.
Conclusion
We vacate and remand this matter for additional fact finding as described in this opinion. On remand, the trial court, in its discretion, may enter a new order based on the existing record, or conduct any additional proceedings that the court finds necessary.
VACATED AND REMANDED.
Judges DILLON and ARROWOOD concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.