Supreme Court of North Carolina, 2017

Catawba Cnty. ex rel. Rackley v. Loggins

Catawba Cnty. ex rel. Rackley v. Loggins
Supreme Court of North Carolina · Decided September 29, 2017 · Martin, Only
804 S.E.2d 474; 370 N.C. 83; 2017 WL 4322747; 2017 N.C. LEXIS 688 (South Eastern Reporter, Second Series)

Counsel

Subsequently, a second VSA titled "Modified Voluntary Support Agreement and Order" was signed by defendant on 25 June 2001. This agreement did not reference the original VSA or the 1999 order, nor did it show that the district court established defendant's paternity in 1999. The parties did attach a child support worksheet stating defendant had a monthly gross income of $1,724.66 and recommending $419.00 for his monthly child support obligation.1 The 2001 VSA was approved by the court and entered on 28 June 2001. This order is the basis of all controversy on appeal. In the 2001 VSA, defendant agreed to pay $419.00 per month in child support starting 1 July 2001 and to reimburse the State $422.78 for public assistance given to his children. In addition, defendant agreed to provide health insurance to his children through his then-employer, Crown Heritage, Inc. Unlike the 1999 VSA, the 2001 VSA contains no modification provision., **86Throughout the following years, defendant failed to comply with the 2001 VSA. Accordingly, the trial court entered consent contempt orders on 20 November 2003, 21 July 2005 and 25 January 2007. Each time defendant admitted to being in civil contempt for his failure to pay amounts due under the 2001 VSA. By 2007, the amount defendant owed totaled $16,422.28. In the 2007 consent *477order, the trial court ordered defendant to make monthly child support payments totaling $479.00 with $60.00 going towards arrears. On 5 April 2007, the district court concluded defendant was in compliance with the 25 January 2007 order and determined that his arrearages were $15,572.80. The district court ordered defendant to continue his monthly child support payments of $419.00 plus $60.00 towards arrears. Eventually, defendant again failed to pay the child support ordered by the court., On 7 April 2011, defendant filed, pro se, a motion to modify the 2007 consent order. Defendant stated there was a change in circumstances because he "draw[s] unemployment, [and his] kids [ages 17 and 18] have quit school." The district court heard the matter on 11 August 2011. Ms. Rackley failed to appear. On 15 September 2011 the district court found a change in circumstances, noting that "[d]efendant was drawing unemployment benefits, since has obtained fulltime employment. Oldest child ... has emancipated according to [ N.C.G.S. § 50-13.4(c) ]." Based on the child support guidelines, the district court reduced defendant's monthly child support obligation to $247.00 and found his arrears to be $6,640.75., In the Court of Appeals, plaintiff argued, in pertinent part, that the district court erroneously concluded that a motion to modify a child support obligation must precede a modification order. The Court of Appeals reasoned that the plain language of N.C.G.S. § 50-13.7(a) "requires a 'motion in the cause and a showing of changed circumstances' as a necessary condition for the [district] court to modify an existing support order." Catawba County ex rel. Rackley v. Loggins , --- N.C. App. ----, ----, 784 S.E.2d 620, 625-26 (2016) (quoting N.C.G.S. § 50-13.7(a) (2015) ). The Court of Appeals recognized that a district court is without authority to sua sponte modify an existing support order. Id. at ----, 784 S.E.2d at 626 (quoting Royall v. Sawyer, 120 N.C. App. 880, 882, 463 S.E.2d 578, 580 (1995) ). Therefore, according to the Court of Appeals, it was "impossible to enforce the second [VSA] and order because the trial court did not have jurisdiction to accept the second [VSA] and enter the modified order." Id. at ----, 784 S.E.2d at 626 (citation omitted)., Rule 12(b)(1) of the Rules of Civil Procedure allows for dismissal based upon a trial court's lack of jurisdiction over the subject matter of the claim. N.C.G.S. § 1A-1, Rule 12(b)(1) (2015). We review the decision *478of a trial court to dismiss an action for lack of subject matter jurisdiction de novo. Harris v. Matthews , 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007) ; see Baumann-Chacon v. Baumann , 212 N.C. App. 137, 139, 710 S.E.2d 431, 433 (2011) (applying a de novo standard of review to a district court's decision to dismiss a plaintiff's claims for child support for lack of subject matter jurisdiction)., Without regard to the amount in controversy, the district court conducts "the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof." N.C.G.S. § 7A-244 (2015). Subdivision 50-13.7(a) permits a child support order to be "modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party." Id. § 50-13.7(a) (2015). Additionally, "[a] judicial decree in a child custody and support matter is subject to alteration upon a change of circumstances affecting the welfare of the child and, therefore, is not final in nature." Stanback v. Stanback (Stanback II ) , 287 N.C. 448, 456, 215 S.E.2d 30, 36 (1975)., **89As a result, "the jurisdiction of the court entering such a decree continues as long as the minor child whose custody is the subject of the decree remains within its jurisdiction." Id. at 456, 215 S.E.2d at 36 (citing Spence v. Durham , 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied , 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974), and Stanback v. Stanback , 266 N.C. 72, 145 S.E.2d 332 (1965) ); see also N.C.G.S. § 50-13.5(f) (2015) ("An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides....")., Here, the district court in Catawba County ruled on the original VSA in this action. According to the principles specified above, *479the district court thereafter retained jurisdiction over further proceedings, including modifications to the VSA. As reasoned by this Court in Stanback II , unless the district court "was somehow divested of its continuing jurisdiction, it was the only court which could modify the earlier judgment upon a motion in the cause and a showing of a change of circumstances." 287 N.C. at 456, 215 S.E.2d at 36 (citations omitted). At the time the 2001 VSA was approved, all parties resided in North Carolina. As a result, "the jurisdiction of the [district court] continue[d] as long as the minor child whose custody is the subject of the decree remain[ed] within its jurisdiction." Id. at 456, 215 S.E.2d at 36. No circumstances are present here that would divest the district court of its jurisdiction to modify the VSA. See id. at 456, 215 S.E.2d at 36 ; Story v. Story , 221 N.C. 114, 115-16, 19 S.E.2d 136, 137-38 (1942) (concluding that while an order requiring the husband to make monthly payments for child support was a consent judgment, the court had jurisdiction to hear the wife's subsequent motion for modification of the order, thereby allowing the court to award permanent custody of the child to the wife and to increase the husband's monthly payments); Massey v. Massey , 121 N.C. App. 263, 273, 465 S.E.2d 313, 319 (1996) ("In view of our holding affirming the trial court's voiding of the parties' Stipulation of Dismissal and because of the court's continuing jurisdiction acquired in consequence of its rendering the original child custody and support order, ... we discern no abuse of discretion on the part of the trial court in its order of consolidation and no injury or prejudice suffered by [the] defendant."); Jackson v. Jackson , 68 N.C. App. 499, 501-02, 315 S.E.2d 90, 91 (1984) (holding that because the district court originally had jurisdiction over the child custody and support dispute, it had continuing jurisdiction to rule on a subsequent motion filed by the defendant for custody and support and sequestration of the marital home for the children's use and benefit). Thus, the district court maintained continuing jurisdiction to modify the 2001 VSA. **90B. Plain Meaning of the Statute Does Not Impose a Jurisdictional Prerequisite, Rules of statutory construction confirm the district court's jurisdiction. "It is well settled that '[w]here 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 .' " In re Estate of Lunsford , 359 N.C. 382, 391-92, 610 S.E.2d 366, 372 (2005) (emphases added) (quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990) )., In In re D.S. , 364 N.C. 184, 185, 694 S.E.2d 758, 759 (2010) the defendant, a fifth-grade student, was charged as a juvenile for touching a classmate "multiple times on her buttocks and between her legs with a straw-like candy, known as Pixy Stix." A juvenile court counselor filed a juvenile delinquency petition against the defendant alleging simple assault. Id. at 185, 694 S.E.2d at 759. Over a month later, the juvenile court counselor filed a second petition alleging that the defendant had also committed sexual battery during the same incident. Id. at 185-86, 694 S.E.2d at 759. On appeal the defendant argued, and the Court of Appeals agreed, that the second petition was not filed within the time period mandated by N.C.G.S. § 7B-1703, the pertinent statute, and therefore the district court lacked subject matter jurisdiction over the sexual battery allegation. Id. at 186, 694 S.E.2d at 759-60. In reversing the decision of the Court of Appeals, this Court reasoned that, **91While the subject matter of In re D.S. is distinguishable, the essence of this Court's reasoning is applicable in the case sub judice . Subsection 50-13.7(a) states that a child support order can be "modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party." N.C.G.S. § 50-13.7(a). Just as with the controlling statute in In re D.S., subsection 50-13.7(a) does not indicate that a party's failure to file a motion divests the court of jurisdiction. There is no language in either law establishing jurisdictional consequences for failure to follow the statutory provisions; the statutory language is clear and unambiguous and the plain meaning of each statute imposes no jurisdictional prerequisites. As we reasoned in In re D.S. regarding the statute at issue there, the legislature here could have set forth requirements that would affect jurisdiction in N.C.G.S. § 50-13.7(a). Compare In re A.R.G. , 361 N.C. 392, 398-99, 646 S.E.2d 349, 353 (2007) (holding that while the county department of social services failed to comply with the applicable statute requiring a juvenile's address to be included in a petition alleging that a child was a neglected and dependent juvenile, "[n]othing in the statute suggests that the information required is jurisdictional" and stating that to hold otherwise "would elevate form over substance"), with In re T.R.P. , 360 N.C. at 591, 636 S.E.2d at 790-91 (concluding that a petition filed by the county department of social services alleging that a child was a neglected juvenile was not verified as required by statute and therefore, rendered the judgment void because "verification of the petition in an abuse, neglect, or dependency action ... is a vital link in the chain of proceedings carefully designed to protect children at risk on one hand while avoiding undue interference with family rights on the other"). We decline to create a jurisdictional prerequisite in this statute where one cannot be originally found. Thus, the district court had jurisdiction to modify the child support order.2, While the plain meaning of N.C.G.S. § 50-13.7(a) is sufficient for us to determine that the district court had jurisdiction to modify the VSA, the legislative history of the statute indicates that the legislature did not intend for the statute to create a jurisdictional prerequisite to modify child support orders. To determine legislative intent, this Court can also consider "the legislative history of an act and the circumstances surrounding its adoption." In re Banks , 295 N.C. 236, 239-40, 244 S.E.2d 386, 389 (1978) (citation omitted). The legislative history of N.C.G.S. § 50-13.7(a) and other domestic relations statutes yields critical insight regarding the General Assembly's intent here., Later, this Court addressed whether the five-day notice provision was jurisdictional with respect to the alimony laws. Barnwell v. Barnwell , 241 N.C. 565, 566, 85 S.E.2d 916, 916-17 (1955), involved a civil action for alimony without divorce under N.C.G.S. § 50-16 in which a district court entered an order for alimony pendente lite without notice to the defendant. This Court determined that the failure to comply with the five-day notice requirement in N.C.G.S. § 50-16 rendered the order void.3, *482Id. at 567-68, 85 S.E.2d at 918. In 1967 both alimony statutes were **94repealed and the statutory framework that exists today was enacted as evidenced in N.C.G.S. §§ 50-16.1A through 50-16.10. The notice provision remained intact until it was repealed in 1995. Act of June 21 1995, ch. 319, sec. 6, 1995 N.C. Sess. Laws 641, 646-47 (changing the laws pertaining to alimony) (codified at N.C.G.S. § 50-16.8 (1995) ). In its present form, the relevant alimony statute includes the same language as appears in N.C.G.S. § 50-13.7(a) and which is at issue here: "An order of a court ... for alimony ... may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." N.C.G.S. § 50-16.9(a) (2015). Moreover, both the child support modification statute at issue here and the alimony statute cited for purposes of instructive comparison were enacted by the General Assembly on the same day in successive acts. Act of July 6, 1967, ch. 1152, 1967 N.C. Sess. Laws 1766 (alimony); Ch. 1153, 1967 N.C. Sess. Laws 1772 (child custody and support). As stated above, the notice provision was removed from the child support statute in 1967, but remained in the alimony statute until 1995. This comprehensive analysis of the legislative history of N.C.G.S. § 50-13.7(a), the governing statute in the case at bar, establishes that the legislature did not intend that subsection 50-13.7(a) create a jurisdictional prerequisite., The provision of N.C.G.S. § 50-13.7(a) requiring a motion to be filed is directory rather than mandatory; consequently, the absence of a motion to modify a child support order does not divest the district court of jurisdiction to act under the purview of the statute. With the empirical subject of jurisdiction substantively questioned, defendant argues that "a motion in the cause by an interested party pursuant to N.C.G.S. § 50-13.7(a) [must be filed]. Without a motion in the cause the trial court is without authority/jurisdiction to modify the existing order." This Court **95has previously held that a provision in a statute that is directory rather than mandatory is not jurisdictional. See In re D.S. , 364 N.C. at 193-94, 694 S.E.2d at 763-64 (citing In re C.L.C. , 171 N.C. App. 438, 443-45, 615 S.E.2d 704, 707-08 (2005) ) (concluding that various statutory timelines governing the filing of a petition to terminate parental rights, the scheduling of the initial post-disposition custody review hearing and the filing of permanency planning orders under cited provisions of the juvenile code are "directory, rather than mandatory and thus, not jurisdictional" (quoting In re B.M. , 168 N.C. App. 350, 354, 607 S.E.2d 698, 701 (2005) ), aff'd per curiam in part and disc. rev. improvidently allowed , 360 N.C. 475, 628 S.E.2d 760 (2006) ). " 'Directory' has been defined in Black's Law Dictionary as '[a] provision in a statute, rule of procedure, or the like, which is a mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision, which must be followed.' " State v. Fulp , 355 N.C. 171, 176, 558 S.E.2d 156, 159 (2002) (quoting Black's Law Dictionary 460 (6th ed. 1990)). We have reasoned that:, We conclude that failure to follow the directory requirements of N.C.G.S. § 50-13.7(a) regarding the filing of a motion in the cause does not divest the district court of jurisdiction. The provision requiring a motion to be filed for a child support order to be modified is directory, not mandatory, in nature. The provision concerns a matter of form, rather than a matter of substance as defendant contends, and merely addresses the procedural aspects of modifying a child support order. This Court has issued consistent determinations to this effect, even under varying **96circumstances. See House , 295 N.C. at 200-03, 244 S.E.2d at 660-62 (concluding that while a grand jury foreman signed an indictment that failed to explicitly indicate that at least twelve jurors concurred in the finding but stated that the jury found the indictment to be a true bill, such omission violated only a directory provision); State v. Rogers , 275 N.C. 411, 422-23, 168 S.E.2d 345, 351-52 (1969) (concluding that statutory provisions requiring county commissioners making up a jury list to use, in addition to a tax list, "a list of names of persons who do not appear upon the tax list," are "directory and not mandatory in the absence of bad faith or corruption"), cert. denied , 396 U.S. 1024, 90 S.Ct. 599, 24 L.Ed.2d 518 (1970) ; N.C. State Art Soc'y., Inc. v. Bridges , 235 N.C. 125, 130, 69 S.E.2d 1, 4-5 (1952) (concluding that a statute requiring one of two particular individuals to appraise art selected to be purchased by the State Art Commission was directory and the decision to have a different qualified person to appraise the art constituted substantial compliance with the statute). Thus, the provision stating that a child support order may be modified "upon" a motion in the cause is merely directory; therefore, plaintiff's failure to do so does not divest the district court of jurisdiction., While N.C.G.S. § 50-13.7(a) does not create a jurisdictional prerequisite and does not contain a mandatory requirement that a party or interested person file a motion for child support modification in order for a district court to exercise jurisdiction over such a matter, defendant nonetheless asserts that a trial court must construe the statute in such a fashion to abide by the procedural requirements of N.C.G.S. § 50-13.7(a). According to defendant, to hold otherwise will encourage parties to disregard other procedural requirements such as filing complaints, issuing summonses and observing other mandatory provisions. This Court is not persuaded by defendant's "snowball effect" argument. Here, plaintiff filed a VSA, which was sufficient to satisfy the purposes of N.C.G.S. § 50-13.7(a). A primary purpose of a requirement to file a motion in order to modify child support is to make the court aware of "important new facts unknown to the court at the time of the prior custody decree." Tank v. Tank , 2004 ND 15, ¶ 10, 673 N.W.2d 622, 626 (2004) (citations omitted). When a VSA is filed to modify an earlier court order on child support, the VSA is customarily a request to modify the child support order because circumstances have changed. Thus, a VSA submitted to the district court without such a motion still serves the purpose highlighted in Tank, a case from the State of North Dakota that is instructive for this analysis. Thus, our decision also harmoniously aligns with the **97statutory provision requiring a showing of a change in circumstances in order for a child support order to be modified.

Catawba Cnty. ex rel. Rackley v. Loggins

Opinion of the Court

Chief Justice MARTIN concurring in the result only.

In this case, we must decide whether the district court had the power to modify a child support order even though no party had filed a motion in the cause. Under subsection 50-13.7(a) of our General Statutes, "an order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances." N.C.G.S. § 50-13.7(a) (2015) (emphasis added). Here, the district court acted only after defendant had entered into a proposed Modified Voluntary Support Agreement and Order (the consent order), which the parties then submitted to the district court for approval. Because the consent order served as the functional equivalent of a joint motion, I concur in the result that the majority opinion reaches.

But I do not concur in the majority's reasoning, as the majority's rationale seems to extend much further than the context of this case. Because it holds that the "motion in the cause" language of subsection 50-13.7(a) is directory rather than mandatory, the majority seems to allow a district court to modify a child support order-and thus to alter the legal rights and duties of the parties involved-sua sponte, without any party invoking the court's power. This rule, if the majority is indeed establishing it, ignores the plain language of the very statutory provision that gives district courts the power to modify these kinds of orders. It also potentially subverts the customary role that courts play in our adversarial system: to rule on the issues actually raised and argued by the parties. This seems imprudent at best, and may raise serious jurisdictional **98concerns as well. I therefore write separately to express my opinion that the majority's reasoning should be read narrowly.

This Court said in State v. House that, "[i]n determining the mandatory or directory nature of a statute, the importance of the provision involved may be taken into consideration." 295 N.C. 189, 203, 244 S.E.2d 654, 661 (1978) (quoting 73 Am. Jur. 2d Statutes § 19, at 280 (1974) ). "Generally speaking, those provisions which are a mere matter of form, or which are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done so that compliance is a matter of convenience rather than substance, are considered to be directory." Id. at 203, 244 S.E.2d at 661-62 (quoting 73 Am. Jur. 2d Statutes § 19, at 280). Under this standard, a provision that requires a motion in order for a district court to modify an existing support order should be viewed as mandatory for several reasons.

First of all, the motion requirement in subsection 50-13.7(a) is not "a mere matter of form." It defines both the role of the parties and the role of the court in child support proceedings. If a party wishes to have a child support order modified, that party must file a motion in the cause and serve it on the opposing party. That gives the opposing party notice of the motion and the chance to present arguments opposing it. And that is how our adversarial system normally operates. But parties have no opportunity to contest a potential modification when a court acts sua sponte. Granting a court the power to act sua sponte in this context, as the majority appears to do, both destabilizes already concluded agreements and affects the substantial rights of parties who rely on those agreements. Parties also have an interest in the finality of judgments and the repose that they provide. Under the majority's apparent rationale, though, cases once resolved could be reopened even though neither party wants to continue litigating.

In re T.R.P. is an analogous case. There, we held that a statutory provision requiring a verification signature on a juvenile petition-the lack of which would in many cases be a simple oversight-was mandatory. 360 N.C. 588, 598, 636 S.E.2d 787, 794-95 (2006). Requiring the verification procedure "respect[ed] both the right to family autonomy and the needs of the child." Id. at 598, 636 S.E.2d at 794. A similar logic motivates the language of subsection 50-13.7(a). A district court can always modify a support order on request of a party who shows a change in circumstances and good reason to modify the *485order. But if the majority ruling is read to permit even sua sponte modifications, it would disturb several decades of Court of Appeals precedent that domestic relations parties and social services agencies throughout North Carolina have **99presumably come to rely on. See Royall v. Sawyer , 120 N.C. App. 880, 882, 463 S.E.2d 578, 580 (1995) (concluding that a child support agreement could not be modified without a motion to modify the agreement); Kennedy v. Kennedy , 107 N.C. App. 695, 703, 421 S.E.2d 795, 799 (1992) (noting that a district court may modify a custody order only upon a motion by either party or by anyone interested); Smith v. Smith , 15 N.C. App. 180, 182-83, 189 S.E.2d 525, 526 (1972) (holding that it was error for the trial court to modify a custody and support order when the only question before the trial court at the time was alimony).

I would also observe that the General Assembly has not amended the motion requirement in subsection 50-13.7(a) in response to this longstanding Court of Appeals precedent. That suggests that the Court of Appeals correctly understood the General Assembly's intent, or, at a minimum, that the General Assembly has acquiesced to the Court of Appeals' reading. "The legislature's inactivity in the face of the [judiciary's] repeated pronouncements [on this issue] can only be interpreted as acquiescence by, and implicit approval from, that body." In re T.R.P. , 360 N.C. at 594, 636 S.E.2d at 792 (alterations in original) (quoting Rowan Cty. Bd. of Educ. v. U.S. Gypsum Co. , 332 N.C. 1, 9, 418 S.E.2d 648, 654 (1992) ).

The majority holds that a district court's failure to observe subsection 50-13.7(a)'s motion requirement is not jurisdictional, but I believe that it may very well be. At the very least, the majority does not establish that it is not. The majority's discussion of jurisdiction establishes only that the district court here had continuing jurisdiction over this case and these parties. That is clear. But by focusing on continuing jurisdiction, the majority ducks the real issue: whether, in the absence of a motion or its functional equivalent, a district court has the power to modify a child support order, or instead lacks the power to do so unless and until it receives a request from an interested party to modify the order.

The term "[j]urisdiction" refers to "[a] court's power to decide a case or issue a decree ." In re M.I.W. , 365 N.C. 374, 379, 722 S.E.2d 469, 473 (2012) (second set of brackets in original) (emphasis added) (quoting Black's Law Dictionary 927 (9th ed. 2009)). "[H]aving jurisdiction is simply a state of being that requires, and in some cases allows, no substantive action from the court." Id. at 379, 722 S.E.2d at 473. Put another way, in our adversarial system of justice, a court with jurisdiction sometimes cannot act-at least not until a party has asked it to. A court that has subject-matter jurisdiction over a case and personal jurisdiction over the parties may thus still lack the "power to grant the relief contained in [its] judgment."

**100Ellis v. Ellis , 190 N.C. 418, 421, 130 S.E. 7, 9 (1925) (quoting 1 A. C. Freeman, Freeman on Judgments § 116 (4th ed. 1892)). And a court that enters a judgment without the power to do so "acts in excess of jurisdiction." Id. (quoting 1 A. C. Freeman, Freeman on Judgments § 116 (4th ed. 1892)). That judgment is therefore void and "may be impeached collaterally or by direct attack." Id. at 421-22, 130 S.E. at 9 ; see also State ex rel. Hanson v. Yandle , 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952) ("If the court was without authority, its judgment ... is void and of no effect. A lack of jurisdiction or power in the court entering a judgment always avoids the judgment...."). Hence the concern here: a district court that ignores a mandatory motion requirement in issuing an order may well be acting in excess of its jurisdiction, and its order may well be void.

Defending its position, the majority notes that "the jurisdiction of the court entering ... a [child support] decree continues as long as the minor child whose custody is the subject of the decree remains within its jurisdiction," quoting Stanback v. Stanback , 287 N.C. 448, 456, 215 S.E.2d 30, 36 (1975). But again, the issue here is not whether the district court had continuing jurisdiction, but whether the district court exceeded the scope of its jurisdiction.

A court can, of course, dismiss a case sua sponte for lack of subject-matter jurisdiction, see N.C. R. Civ. P. 12(h)(3) ; accord *486Fed. R. Civ. P. 12(h)(3), but that is one of the few exceptions that proves the rule. Many other things, including personal jurisdiction, are waivable and should not be raised sua sponte. See N.C. R. Civ. P. 12(h)(1) ; accord Fed. R. Civ. P. 12(h)(1). Courts always have jurisdiction to determine subject-matter jurisdiction, but they do not always have-in fact, they usually do not have-the power to determine other matters unless asked to do so by a party.

By ignoring the possibility that a district court that modified a support order sua sponte may be acting in excess of its jurisdiction, and by reading the standard for directory versus mandatory statutes in a way that strongly favors the "directory" label, the majority raises several troubling questions. What must the General Assembly do to make a procedural rule actually binding on the courts? Does the magic word "jurisdictional" now have to be in the statute's text? Would a court with both subject-matter and personal jurisdiction have the power to issue a summary judgment order when no party had moved for summary judgment? Would a court be able to issue a final judgment in a case that had disputed material facts in the absence of settlement or trial? These last two questions show the error in the majority's thinking, and the inconsistency of its reasoning with foundational principles of our adversarial **101system: a district court can plainly have jurisdiction over a case but lack the power to issue a certain decree.

The consent order satisfied subsection 50-13.7(a)'s motion requirement, so the district court here did not act sua sponte. We therefore do not have to decide whether a district court that did act sua sponte in this context would be exceeding its jurisdiction. It is important, however, that we distinguish in future cases between a court's jurisdiction over a case, on the one hand, and a court's power to issue a particular order or remedy, on the other. Those two things are not the same. Accordingly, I concur in the result only.

Justice ERVIN joins in this concurring opinion.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.