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NO. COA97-398 NORTH CAROLINA COURT OF APPEALS Filed: 6 October 1998 JERRY LEONARD POTTER, JR., Plaintiff, v. CYNTHIA ELIZABETH POTTER, Defendant. Appeal by defendant from an order filed 6 September 1996 and a judgment filed 17 October 1996 by Judge William A. Leavell in Avery County District Court. November 1997. Joseph W. Seegers for plaintiff-appellee. Legal Services of the Blue Ridge, Inc., by Karla P. Rusch, for defendant-appellant. JOHN, Judge. Defendant appeals the trial court's 6 September 1996 order denying her motion to dismiss as well as the court's subsequent 17 October 1996 "Judgment" awarding primary physical custody of the parties' two minor children to plaintiff. We reverse the Heard in the Court of Appeals 20

trial court's 6 September 1996 ruling and consequently vacate its later "Judgment." Relevant facts and procedural information include the following: Plaintiff and defendant were married 5 January 1993 Two children, Jonathan Robert (Jonathan), born 11

in Tennessee.

June 1992, and Candice Michelle (Candice), born 30 September 1989, were legitimized by the marriage. During the marriage,

plaintiff and defendant separated on several occasions for brief periods of time, finally doing so permanently during the summer of 1995. Jonathan and Candice were both born in Tennessee and

lived in that state until the parties' separation. On 25 July 1996, plaintiff filed the instant action seeking divorce and custody of Jonathan and Candice. Defendant's 19

August 1996 answer included a counterclaim and motion to dismiss for lack of subject matter jurisdiction pursuant to N.C.G.S.

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South Carolina Law