Clements v. Clements (Lawyers Weekly No. 12-07-0376, 17 pp.) (Douglas McCullough, J.) Appealed from New Hanover County District Court. (Jeffrey E. Noecker, J.) N.C. App. Full-text opinion.
Holding: Where the parties initiated their domestic litigation in district court before the defendant-mother was ruled incompetent, the district court retains jurisdiction over the issue of child support, despite the fact that, ordinarily, the clerk of superior court has jurisdiction over expenditures from an incompetent’s estate.
We deny plaintiff’s motion to dismiss defendant’s appeal as interlocutory. We affirm the district court’s denial of defendant’s motion to dismiss for lack of subject matter jurisdiction.
There is a real chance that the parties could be subject to inconsistent verdicts if defendant decided to make a claim for child support before the clerk of court and the clerk entered an order different from that of the district court. Thus, the trial court’s denial of defendant’s motion to dismiss affects a substantial right, and this court exercises jurisdiction over defendant’s appeal.
G.S. Chapter 35A, regarding incompetency and guardianship matters, “establishes the exclusive procedure for adjudicating a person to be an incompetent adult or an incompetent child.” G.S. § 35A-1102. However, § 35A-1102’s exclusivity language does not continue throughout the chapter, and we do not see how a child support matter could be considered under the exclusive jurisdiction of the clerk just because one party involved has been adjudicated incompetent.
Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462 (1988), is distinguishable. While spousal support may be sought from the estate of an incompetent spouse, our court held that the district court was not the proper forum for such a case due to the fact that the spouse initiated the claim for spousal support in the district court after her spouse had been found to be incompetent. At that point, the superior court had original jurisdiction over the estate of the incompetent and retained continuing jurisdiction over the issue of spousal support.
In the case at bar, defendant initiated the case for child support in the district court prior to being adjudicated incompetent.
In McKoy v. McKoy, 202 N.C. App. 509, 689 S.E.2d 590 (2010), the parents of a child each sought custody of the child in district court after the child had been adjudicated incompetent by the clerk of superior court. As in Cline, this court held that the clerk had original and exclusive jurisdiction to address the custody dispute where the child had already been adjudicated incompetent. Again, McKoy can be distinguished in that the clerk had obtained original jurisdiction by adjudicating the child incompetent prior to the initiation of the custody dispute, while in the case at hand the clerk adjudicated defendant incompetent after the parties commenced their child support dispute in district court. We do not find either of these cases controlling.
Generally, where there are courts of concurrent jurisdiction, the court which first acquires jurisdiction retains it, and the one that first exercises jurisdiction generally prohibits the exercise by another. Here, the district court first obtained jurisdiction over the child support issue, and the clerk subsequently adjudicated defendant incompetent.
A minor child is in an equally protected status as that of an incompetent ward. Furthermore, the district court has a similar duty as that of the clerk to consider the financial situation of the incompetent party.
The clerk does not have exclusive jurisdiction over the issue of child support, even where it involves the estate of an incompetent ward, and the district court’s original jurisdiction outweighs the concurrent jurisdiction of the two forums.