Quevedo-Woolf v. Overholser ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-675 and COA17-1344
Filed: 18 September 2018
Rowan County, No. 12 CvD 2654
CELINA QUEVEDO-WOOLF, Plaintiff,
v.
MERRY EILEEN OVERHOLSER and DANIEL CARTER, Defendants.
____________________________________
Rowan County, No. 12 CvD 2654
CELINA QUEVEDO-WOOLF, Plaintiff,
v.
MERRY EILEEN OVERHOLSER and DANIEL CARTER, Defendants.
Appeal by Plaintiff from order entered 16 May 2016 by Judge Marshall Bickett
and appeal by Defendant Overholser from order entered 17 November 2016 by Judge
James F. Randolph in District Court, Rowan County. Heard in the Court of Appeals
19 February 2018. Appeal by Defendant Overholser from order entered 28 March
2017, nunc pro tunc 14 March 2017, by Judge James F. Randolph in District Court,
Rowan County. Heard in the Court of Appeals 6 August 2018.
Woodruff Law Firm, PA, by Carolyn J. Woodruff and Jessica Snowberger
Bullock, for Plaintiff.
Hoffman Law Firm, PLLC, by James P. Hoffman, Jr., for Defendant
Overholser.
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
McGEE, Chief Judge.
I. Factual and Procedural History
A. General
Celina Quevedo-Woolf (“Plaintiff”) and Daniel Carter (“Carter”) had a brief
romantic relationship that resulted in the birth of E.R.Q., a girl, on 19 July
2005. Carter has had minimal involvement in E.R.Q.’s life and is not a party to this
appeal. Plaintiff’s mother, Merry Eileen Overholser (“Defendant”) has raised E.R.Q.
since infancy. When Plaintiff realized she was pregnant she moved in with
Defendant, who was living in Defendant’s mother’s house (the “house”), in Palm
Beach County, Florida. After E.R.Q. was born, Plaintiff continued to live with
Defendant. Though E.R.Q. initially slept in Plaintiff’s room, for the majority of the
time Plaintiff and E.R.Q. were living in the house, E.R.Q. slept in Defendant’s room.
Plaintiff moved out of the house around the time of E.R.Q.’s first birthday,
leaving E.R.Q. with Defendant, because, according to Plaintiff, Plaintiff was not
getting along with Defendant, and for “stability for E.R.Q.” Plaintiff testified she left
E.R.Q. with Defendant because E.R.Q. already “kn[ew] my mother and kn[ew] that
house, [so] it seemed like a logical thing at the time as opposed to me moving out into
a friend’s house, which I did, and [E.R.Q.] not being familiar with the situation or
anything like that.” Plaintiff’s initial apartment was nearby, and Plaintiff testified
-2-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
she visited E.R.Q. but that “it was kind of sporadic,” “weekly.” Plaintiff never kept
E.R.Q. overnight during this initial period.
In order for Defendant to have the authority to make decisions necessary for
raising E.R.Q., such as decisions for medical care, Defendant asked Plaintiff to give
Defendant legal and physical custody of E.R.Q. Plaintiff agreed, and the Circuit
Court of the Fifteenth Judicial Circuit for Palm Beach County, Florida (the “Florida
court”), entered an “Order for Temporary Custody” on 2 November 2006 (the “Florida
Order”), giving sole legal and physical custody of E.R.Q. to Defendant. E.R.Q. was
one year old at the time. The Florida Order allowed Plaintiff to petition for the return
of custody of E.R.Q. to Plaintiff. After Defendant obtained custody, Plaintiff
continued to have semi-regular contact with E.R.Q., but E.R.Q. lived full-time with
Defendant and Defendant made all relevant decisions related to the care of E.R.Q.
In 2007, Defendant filed for, and obtained, an order for child support from Plaintiff.
In June of 2008, when E.R.Q. was approximately three years old, Defendant
and E.R.Q. moved with Defendant’s girlfriend at the time, Janet Kresge (“Kresge”),
to Rowan County, North Carolina. Defendant had been a special education teacher
since 1984, and continued working in that capacity in North Carolina. Plaintiff
testified she did not want Defendant to leave Florida with E.R.Q., but Defendant
testified that, when she discussed with Plaintiff the idea of moving to North Carolina,
Plaintiff “thought it was a great idea and [Plaintiff] said she was coming” to North
Carolina to be near E.R.Q. Plaintiff did not move to North Carolina, and did not visit
-3-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
E.R.Q. in Rowan County until October 2008, when Defendant purchased Plaintiff a
plane ticket for that purpose. A note written by Kresge concerning that time period
stated:
April, 2008. Discussed moving [with Plaintiff]. Better
standard of living, et cetera. Was told [Plaintiff] would
follow in a few months. Looked for apartments. Sent info
to [Plaintiff]. October, 2008 visit [–] three days. [Plaintiff]
[s]pent most of time on computer or phone. Did not spend
. . . quality time [with E.R.Q.]. Promised to be back for
Thanksgiving. No contact.
Defendant testified that, based upon her own observations, what Kresge had written
in the note was correct. Plaintiff’s next visit with E.R.Q. did not occur until May of
2011, approximately two and a half years after the October 2008 visit. The May 2011
visit was a day visit that lasted only a few hours.
Defendant testified that she and Kresge offered to let Plaintiff live with them
and E.R.Q., but Plaintiff did not take them up on that offer. Defendant further
testified:
A After [Plaintiff] came in October [2008] I did not hear
from her for quite some time.
Q Was it true that [Plaintiff] didn’t have your phone
number when you lived in North Carolina?
A No.
....
Q Do you know where [Plaintiff] was at during that period
of time when she had no contact?
-4-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
A No, I don’t.
Q When you say no contact, do you mean no phone calls, no
visits, or what?
A Correct. There were – there were no visits from – the
next visit did not happen until [3] May, 2011. [Plaintiff]
did call on – there were a couple of Christmases where she
called. I remember one phone call at Christmas time, and
it had been quite a while since I had spoken to her, where
she – she told me that she was suicidal and some other
things, and things surrounding why she felt that
way. There was another phone call. She usually called like
May. May and December. And I remember one May she
called and I said something to her about [E.R.Q.]’s birthday
the previous year. That she never called [E.R.Q.]. And I
said, “Why didn’t you do that? You didn’t even call her?”
And she said, “Mom, honestly I forgot.” And then there was
May of – I believe it was 2010, because [Kresge] was still
there. And we were in the backyard and [Plaintiff] called
and she just started screaming at me, “Give her back to me.
You have to give her back to me. She’s mine. I’m coming to
get [E.R.Q.].” And I said, “[Plaintiff], you don’t even know
her.” And she said, “Well, that’s okay. I’ll come for the
weekend and I’ll spend the weekend with her and then I’m
taking her back with me.” And I said, “No.” And it was
like I had to try to talk her down.
Q So we’re talking about – and I want to make sure I’m
right on this. We’re talking [6] October, 2008, well into
May of 2011 here [that Plaintiff had no physical contact
with E.R.Q.], right?
A Yes.
....
Q Did you go through periods like that where you wouldn’t
hear from [Plaintiff] for a long time and then suddenly you
would get demands to turn [E.R.Q.] over to her?
-5-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
A Yes.
Q Do you even know where [Plaintiff] was living at that
point in time or who she was living with?
A No. I know at one point [Plaintiff] told me that she
married Michael. And I didn’t know – I don’t believe I
knew specifically where she lived.
Q Did you know that [Plaintiff had] married a guy – or had
moved to West Virginia for a while or something, or was
that later?
A That was Michael[.] And my recollection is that when we
had – we had talked about moving – we had all talked
about moving to North Carolina, and [Plaintiff] said it was
a great idea and she was all gung-ho. And then – and then
at that point I’m not sure if they were living – I know for a
while [Plaintiff and Michael] were living in an apartment.
For a little while I think they were living with Michael’s
mother. And we had looked at a house online [for Plaintiff
in North Carolina]. So . . .
Q When you say “we looked at a house online,” who looked
at a house online?
A [Plaintiff] and I and [Kresge].
Uncontested findings of fact from the order Plaintiff appeals in this matter –
Judge Marshall Bickett’s 16 May 2016 Custody Order (the “Bickett Order”) – show
that Defendant moved to North Carolina with E.R.Q. in June of 2008, and that
Plaintiff visited E.R.Q. in North Carolina in October of 2008.
On 1 June 2009, approximately eight months after Plaintiff’s October 2008
visit with E.R.Q. in North Carolina, Plaintiff filed a motion in Florida requesting that
the Florida Order be terminated and that custody of E.R.Q. be returned to Plaintiff.
-6-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
In that motion, Plaintiff alleged the following as grounds for regaining custody of
E.R.Q.: “I have maintained steady employment and have proper housing for
[E.R.Q.]. I am also recently married[,]” and that E.R.Q. “would be back with the birth
mother, and [she] would be better off living back in Florida with me and her
immediate family.” Three months later, on 1 September 2009, Plaintiff sent
Defendant an email stating that she wanted to regain custody of E.R.Q. Plaintiff
stated that signing custody of E.R.Q. over to Defendant “was the best thing for
[E.R.Q.] at that time and I don’t regret my decision but [E.R.Q.] belongs with me[.]”
Plaintiff stated that sometimes she felt like Defendant did not love her, “[b]ut when
I think that I always revert back to my past because if you didn’t love me you wouldn’t
support me the way that you did.” Plaintiff stated: “I am not going anywhere and I
have every intention of fighting to get my wonderful daughter home with me.”
Approximately eight months later, on 4 May 2010, the Florida court entered a
“Notice of Lack of Prosecution” in which it informed Plaintiff that there had been “no
activity” in the action “for a period of 10 months immediately preceding service of this
notice” and that absent some action on the part of Plaintiff to move the matter
forward within sixty days, a hearing would be held on 1 July 2010 “on the court’s
motion to dismiss for lack of prosecution[.]” Plaintiff did not respond to the “Notice
of Lack of Prosecution,” and the Florida court dismissed Plaintiff’s Florida action for
lack of prosecution by order entered 15 July 2010. Plaintiff did not visit E.R.Q.
between the filing and dismissal of the 2009 Florida action.
-7-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
In uncontested findings of fact from the Bickett Order, the trial court found as
fact that “[in] October of 2008 [] Plaintiff visited with [E.R.Q.] in the state of North
Carolina. After this visitation, [] Plaintiff stopped visiting with [E.R.Q.],” and that
“during the years 2009 and 2010 [] Plaintiff had no physical contact with [E.R.Q.]”
even though “Plaintiff had the ability to visit with [E.R.Q.] during this period of time.”
Plaintiff testified as follows concerning this period:
Q Isn’t it true that for a lengthy period of time for more
than a year back in about 2010, 2011 you didn’t have any
contact with your daughter at all?
A No, that’s not true. I tried to call my daughter several
times.
Q What’s the longest time you’ve went without seeing or
talking to your daughter?
A Seeing her has always been longer. I think there were a
couple of years where I didn’t see her.
Q Do you remember when those years were?
A 2008 – well, no, I think – I believe I saw her in 2008. I
think maybe 2009 – I saw her in 2010, didn’t I, or – I think
it was 2009 and 2010 was the years that I didn’t see my
daughter. (Emphasis added).
Plaintiff met Jeff Woolf (“Woolf”) in late 2010, and moved to New York in April
2011 to live with him. Plaintiff’s May 2011 visit with E.R.Q. appears to have occurred
by happenstance. Plaintiff was in Charlotte for reasons unrelated to E.R.Q., so she
called Defendant and asked if she could come visit E.R.Q. Defendant agreed, Plaintiff
took a train from Charlotte to Salisbury, and Defendant picked her up. Defendant
-8-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
testified that Plaintiff visited with E.R.Q. “for a few hours” then returned to Charlotte
by train. Plaintiff’s description of this visit was that it was “short, but it was fine.”
Plaintiff and Woolf were married in New York in January 2012, and Woolf
apparently paid for Defendant and E.R.Q. to attend. Plaintiff visited North Carolina
to see E.R.Q. again in 2012, at some time close to E.R.Q.’s July birthday. In the
approximately four-year period between June 2008 and the summer of 2012, Plaintiff
had seen her daughter only four times: three times in North Carolina, and once in
New York. For a brief period in 2011 and early 2012, it appeared that Plaintiff and
Defendant were getting along reasonably well, and Plaintiff was maintaining regular
phone contact with E.R.Q. However, email exchanges between Plaintiff and
Defendant show that by at least May 2012 relations had become seriously
strained. The strain in the relationship between Plaintiff and Defendant was likely
caused or exacerbated by the fact that in May 2012 Plaintiff told Defendant that
Plaintiff was going to regain custody of E.R.Q., move her to Texas to live with Plaintiff
and Woolf, and that Defendant could not prevent that from happening.1
Defendant, who had naturally developed a very close bond with E.R.Q., was
opposed to Plaintiff’s plan. E.R.Q. was seven years old at this time, and Plaintiff had
not been a consistent or reliable part of E.R.Q.’s life since Plaintiff had moved out of
the house and left E.R.Q. in Defendant’s care when E.R.Q. was one year old. Plaintiff
1 At this time, Plaintiff and Woolf were living in Texas due to Woolf’s job. By the time of the
Bickett Order, Plaintiff and Woolf had moved to Northern Virginia.
-9-
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
recounted the 22 May 2012 phone conversation with Defendant concerning Plaintiff’s
desire for custody as follows:
And [Woolf and I] actually moved into a two bedroom
apartment, and we knew that we were moving into a two-
bedroom apartment. And I had reached out to [Defendant],
and it was the summer. And I had said to her, “You know,
we’re setting things up for [E.R.Q.] to come live with us,
and I think it would be a great transition if [E.R.Q.] would
stay with you the majority of the summer, then come up
the month before schools starts, and that way we could get
her into some programs in the area and get her into some
friends and introduce her to the school and things like that,
and then we can work on visitation.” And I believe
[Defendant’s] response was something like over her dead
body would [E.R.Q.] ever live with me.
Plaintiff emailed Defendant later that same day, stating:
I want you to know that I love the both of you very much
and that I hope that you will be able to take the next month
and a half to two months to help [E.R.Q.] get ready for the
move. I think that there are some things that we need to
be on the same page about. But before we get started, there
is something we need to address. You keep saying that you
have custody of [E.R.Q.]. Back in 2006, I signed temporary
custody. I didn’t give up my rights. It was for a specific
determined amount of time that I can revoke at any time,
and it was never permanent. I really hope that you can
take the time with [E.R.Q.] to talk to her about the move
and all the great things about it such as soccer and getting
to decorate a new room. I want you to have a relationship
with your granddaughter. With this move to Texas,
[E.R.Q.] will be in a great school district. She will be
involved in all the things she loves like soccer and playing
the violin. I would really like it if you could talk to her
about a couple of things that would help her with the move
such as looking forward to visits with you, camp, a new
school, and new friends and a whole new place to discover
and make her own. Just like you asked me not to speak to
- 10 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
[E.R.Q.] about this and I said I wouldn’t without speaking
to you first, I expect as you guys have your conversations
she is going to have some questions for me, and that is
when I will talk to her about it.
B. Procedural History for the Appeals in COA17-675
Plaintiff filed a “Notice of Registration of Foreign Child Custody Order” with
the Clerk of Court, Rowan County, on 25 October 2012, for the purpose of ensuring
that the Florida Order could be enforced by the Rowan County district court (the
“trial court”). N.C. Gen. Stat. § 50A-305 (2017). Plaintiff filed a “Motion in the Cause
for Modification of a Prior Order” (“Plaintiff’s Motion”) on 15 November 2012,
initiating this action (“Plaintiff’s Action”). Plaintiff’s Motion requested that the trial
court modify the Florida Order pursuant to the provisions of the “Uniform Child-
Custody Jurisdiction and Enforcement Act” (“UCCJEA”) and N.C. Gen. Stat. § 50-
13.7 (2017), which allows “upon [the North Carolina court] gaining jurisdiction, and
a showing of changed circumstances, ent[ry of] a new order for custody which modifies
or supersedes” an order originally entered in another state. N.C.G.S. § 50-13.7(b).
Defendant filed her responsive pleading to Plaintiff’s Motion, Defendant’s
“Motion to Dismiss and for Permanent Custody,” on 8 January 2013. In this motion,
Defendant alleged in part:
9. . . . . [D]efendant took care of [E.R.Q.] in the evening
and Plaintiff put her in day care and stayed out and partied
all night. At some point she just stopped coming home. By
January 2006 Plaintiff had abandoned child with
Defendant and “took off.” . . . .
- 11 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
10. Defendant and [E.R.Q.] moved to North Carolina June
2008[;] prior to that visitation was very sporadic and
Plaintiff never asked to take [E.R.Q.] home, for even a
night. . . . .
11. Defendant filed for custody in Florida in 2006 after
[E.R.Q.] got hurt and she did not know where Plaintiff was
living so [Defendant] could obtain emergency medical
treatment for [E.R.Q.]. In September 2006, Plaintiff gave
[Defendant] a child care power of attorney, but when
Plaintiff stopped coming around at all Defendant requested
that [Plaintiff] consent to a custody order and she agreed
to this. . . . . Plaintiff is in arrears $7,408.06 on child
support and Defendant last obtained child support from
[Plaintiff] last week for $90.00. Plaintiff is supposed to be
paying $90.00 per week. From January 2012 till October
2012 [Plaintiff] paid nothing.
12. Defendant and [E.R.Q.] moved to NC in June 2008 and
Plaintiff was supposed to come with them; however
[Plaintiff] never showed up because she decided to move
with a boyfriend and his mom to West Virginia. [Plaintiff
and her boyfriend] later married and divorced. Plaintiff’s
visits since 2008 were sporadic. In October 2008,
Defendant paid $300.00 for airfare so Plaintiff could visit.
She stayed the weekend and stated she would return for
Thanksgiving however never returned. She did not ask to
take [E.R.Q.] home with her.
13. Defendant has never denied Plaintiff
visitation. [Defendant] has paid for airfare once and even
flew with [E.R.Q.] to New York for Plaintiff’s wedding [to
Plaintiff’s] present husband. Defendant did not hear from
Plaintiff at all for two and one half years and only received
sporadic child support from Plaintiff’s tax returns or
frequently from unemployment compensation.
14. In May 2011, Plaintiff called from Charlotte and
wanted to see [E.R.Q.] [] Defendant agreed. [Plaintiff]
took the train from Charlotte[,] stayed 3 hours[, and] said
she had moved to NYC. [Plaintiff] did not ask to stay and
- 12 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
went back to Charlotte. [E.R.Q.] asked her to stay and
[Plaintiff] was invited and did not stay. [Plaintiff and
E.R.Q.] started talking more and Defendant started
call[ing] every weekend and was pretty consistent. In
November 2011, [] Defendant asked Plaintiff to come for
Christmas and [Plaintiff] did [and] she stayed 3 days, then
Plaintiff invited Defendant and [E.R.Q.] to NYC to her
wedding in January 2012. . . . . The parties had a good
time but they only got to see Plaintiff for small intervals
over the weekend.
15. Plaintiff and [Woolf] moved to Texas in May . . . of 2012
and Plaintiff sent an email that they were moving to Texas
and said “we are taking [E.R.Q.] with us and you need to
take the next 4 to 6 weeks to prepare her.” [] Plaintiff also
told [Defendant] that the Florida Order was temporary,
that [Plaintiff] could revoke it at any time and that
Defendant had violated the [Florida] Order when she
moved. Plaintiff also told Defendant that “unless
[Defendant] cooperated, that she would never see [E.R.Q.]
again.” By November 2012, the pending motion was filed.
....
18. Defendant is a fit and proper person to continue to have
sole care custody and control of [E.R.Q.] in that:
a. [E.R.Q.] is now seven years old and has never lived
with anyone else other than [Defendant] and that this
is the status quo for [E.R.Q.]
b. [] Defendant is highly educated and gainfully
employed in the Cabarrus County School System as a
Resource and Inclusion teacher for Disabled and
Special Needs Children with a BS in Special
Education. [E.R.Q.]’s condition is causing some
learning issues and she is especially qualified to care for
[E.R.Q.]
c. [] Defendant has for the past seven years successfully
cared, support and loved [E.R.Q.] with scant help or
- 13 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
contact with the Plaintiff or the biological father,
keeping a roof over her head, food in her stomach and
dealing with a dangerous medical condition. [E.R.Q.] is
happy, relatively healthy other than [what] has been
stated and well-adjusted and making excellent progress
in school.
d. That a move at the age of seven years old to a mother
that she does not really even know would likely be
traumatic to [E.R.Q.] and not be in her best interests.
Defendant requested, inter alia, that the trial court award Defendant permanent
custody of E.R.Q., and grant Plaintiff supervised visitation with E.R.Q.
Plaintiff and Defendant entered into an agreement, which was then entered by
the trial court as a “Temporary Consent Order,” on 1 May 2013. This order
determined that “it [wa]s in the best interests of [E.R.Q.], pending further hearing in
the matter, that Defendant [] maintain primary legal and physical custody of
[E.R.Q.].” The order further granted Plaintiff rights of visitation, information
sharing, and contact that were not provided for in the Florida Order. Although the
May 2013 order did not grant Plaintiff the right to overnight visits with E.R.Q.,
Defendant apparently independently consented to allow E.R.Q. to visit Plaintiff in
Virginia in October of 2014. This 2014 visit was the first time E.R.Q. had an
overnight visit with Plaintiff without Defendant’s supervision in over six years. A
temporary order was entered on 5 November 2014 officially granting Plaintiff multi-
day unsupervised visitation with E.R.Q., on specific dates, at Plaintiff’s home in
Virginia .
- 14 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
The hearing on Plaintiff’s motion to modify the Florida Order commenced on 3
March 2015, Judge Bickett presiding, continued over ten non-consecutive days until
16 July 2015, and included the testimony of many witnesses. At the end of that
hearing, Judge Bickett expressed his concern about the apparent animus between
Plaintiff and Defendant, and between their counsel. The following exchange occurred
between Judge Bickett and Plaintiff’s attorney concerning how Plaintiff had argued
her case:
BY THE COURT: I mean, you and [Plaintiff] . . . have filed
a motion to register the [Florida Order] and ask that it be
modified based upon substantial change of circumstances.
And now you’re here saying, well, best interest controls and
substantial change of circumstances doesn’t control.
BY MR. CAMERON: Well, I don’t think I’ve necessarily
. . . said that. I think there has been a substantial change
in circumstances affecting the welfare of the minor child.
And I think . . . coupled with that, the best interests are
that she needs to be with [Plaintiff].
Judge Bickett stated:
I have no clue as to what I’m going to do still. I’m going to
have to go back and read my notes and – I mean, I do know
that you – that with your permission I talked to [E.R.Q.] in
chambers and she expressed a preference as she wants to
keep things the way they are. And I do know the suicide
scares me to death. I mean, and you all presented
absolutely minimal evidence as to that and that should
have been one of the most important aspects of this case is
what’s going to happen to her if I move her. I mean, and
you all just sort of, “Oh, no. It’s no big deal there.” It scares
me to death.
- 15 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
Judge Bickett decided to continue the matter until 30 July 2015. A proceeding was
held on 30 July 2015. In this hearing, Judge Bickett recounted some of the evidence
before him, and discussed his concerns that, despite the lengthy trial, the parties had
failed to focus on the relevant issues — change of circumstances and best interest of
E.R.Q.:
[F]or me to modify [the Florida Order], there has to be a
material and substantial change of circumstances affecting
the welfare of [E.R.Q.]. And you have to show that it’s in
the best interest of [E.R.Q.]. There’s been marginal
evidence, at best, on affecting the welfare of the child. And
there’s been less evidence on best interest. I mean, this has
all been about “what is best for me,” not what is best for
this young child. However, and [Defendant’s attorney] Mr.
Paris’s argument that this is the second motion with
basically the same allegations – I’ve got a new husband,
I’ve got a new job, and I’m stable – I am going to find that
there is substantial change of circumstances affecting the
welfare of the child. It concerns me deeply that – as I said
before, that this young lady came in and testified that she
liked being with [Defendant] and that there is evidence of
suicidal ideation or some type of psychological problem that
you all just didn’t bother to think should be a part of this
trial, to the extent, I think the best interest is the most
important portion of this trial, and you all just sort of –
even though you took – this is probably one of the longest
trials we’ve had in this county in the last ten years I’ve
been a judge – you just have ignored best interest. So I’m
going to do a temporary order. I’m going to make a finding
that this is a high-conflict case and that both parents – both
[Plaintiff] and [Defendant] have the means to pay for a
parenting coordinator. I’m going to appoint Mary Blanton
as a parenting coordinator. . . . . I think [E.R.Q.’s]
relationship with [Plaintiff] needs to be repaired, and I
think I would like nothing better [than] to give custody
back to [Plaintiff]. But, ma’am [Plaintiff], Mr. Cameron
[Plaintiff’s attorney] argued that I should treat this as a
- 16 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
juvenile case. If this was a neglect and abuse case, I would
have terminated your parental rights eight years ago, or
seven years ago. Because the key in that court is
permanency. The child has to have a permanent plan.
[Y]ou do one year of trying to repair things and get the
relationship back with the mother, and if that doesn’t work
out, then you terminate rights and give the child to a
parent or a person that will give the child some type of
stability and permanency. And the only permanency
[E.R.Q.] has had is with [Defendant]. Now, it concerns me
that you all do not like each other, or you all are not getting
along. I don’t know that I can fix that, but we need to look
at what’s best for your daughter, and your granddaughter.
And I don’t – I think pulling her out of [Defendant]’s house
when she expressed a preference, and when there’s
psychological issues that I don’t know what they are. I do
know that a ten-year-old, if you force her to do something,
is going to do something drastic to do whatever she wants
to do. And this young lady is a very smart young lady. I
just don’t want her to do something bad. I don’t have
confidence that you all can work it out between yoursel[ves]
because you haven’t done that because of the animosity
that you have. But I do feel confident that we can do
something, if you want your relationship repaired, to repair
it. And then if you get it repaired, then I can look at best
interest, and if – it may be in her best interest that she go
back to you [Plaintiff]. But I don’t know that now because
you all – because of the evidence that’s been presented.
Judge Bickett entered his first order in this matter on 30 July 2015, the same
day as the proceeding. This temporary order was limited to visitation, stated that
the “merits of this case are still pending, with the next hearing date to be scheduled
in February or March, 2016[,]” and further stated that the order was “entered without
any prejudice to either party.” On 24 February 2016 Judge Bickett entered a second
order based on the 30 July 2015 proceeding, in which he made findings and
- 17 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
conclusions expressing the same concerns he had discussed at the proceeding, ruled
that a parenting coordinator should be appointed, granted Plaintiff more access to
E.R.Q., and left the matter open for further action. Judge Bickett made no conclusion
in this order that there had been any change in circumstances affecting the welfare
of E.R.Q.
The next hearing was conducted on the same day the 24 February 2016 order
was entered. In this 24 February 2016 hearing, Plaintiff testified that she would like
“the judge to allow [E.R.Q.] to come live with [Plaintiff] as soon as today[.]” Over
Plaintiff’s objection, E.R.Q., then approaching eleven years old, testified. E.R.Q. was
clearly nervous initially, and Plaintiff and Defendant agreed to leave the courtroom
so E.R.Q. would not have to answer questions in front of them. Judge Bickett
attempted to calm E.R.Q., and let her know that her testimony was not going to
determine with whom she was going to live. Judge Bickett told E.R.Q. he was “just
trying to figure out what is best for you, and I’m trying to figure out a way for you to
have a better relationship with [Plaintiff]. But . . . I want to find out just what you
want. Okay?” E.R.Q. responded: “I want to live in North Carolina.” E.R.Q. explained
a number of the reasons she preferred to remain in North Carolina. When asked
about her visits with Plaintiff, E.R.Q. testified that the visits went “[g]ood. I don’t
know why, but I always end up angry at the end.” E.R.Q. testified that she would be
happy to have more time to visit Plaintiff over the summer, but when Judge Bickett
inquired: “Tell me, you used to not have a relationship with your mom. Do you like
- 18 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
having one?” E.R.Q. responded: “Yes. But I think she pushed it too far when she put
it in court.” E.R.Q. testified that the reason she does not talk with Plaintiff on the
phone sometimes is that she has a lot of schoolwork and is otherwise busy, or because
she has fallen asleep. She testified that Defendant never prevents her from talking
to Plaintiff.
E.R.Q. testified that she is sometimes sad to leave Virginia because she has
“such a good time” in Virginia. She stated that Plaintiff and Woolf “buy a lot of stuff
for” her, and that her bicycle in North Carolina was broken. However, when asked if
she was “getting as much time with [Plaintiff] as you want for right now,” E.R.Q.
answered: “Yes.” When asked how her life was going at Defendant’s house, E.R.Q.
answered: “Good. I love it there. The only thing is that Henry [her dog] is wild. I
love that dog though.” When asked if it seemed that Defendant had less money than
Plaintiff, E.R.Q. answered: “I’ve never cared or thought of that.” E.R.Q. testified that
she gave Defendant a necklace that was “a diamond crusted heart [that] says
‘Mom[,]’” which she bought with money she earned and quarters she finds “laying on
the ground my mom [Defendant] leaves there on purpose.” E.R.Q. testified that she
calls both Defendant and Plaintiff “mom,” and that she was “lucky to have two
moms.” She reflected on having two moms, saying: “Oh, it’s been the same since –
when [Kresge] was around, and I didn’t even know [Plaintiff], I had two
- 19 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
moms. [Kresge] left, then I get [Plaintiff]. Two moms.”2 When asked if she would
have any problems if the trial court decided she would have to live with Plaintiff and
go to school in Virginia, E.R.Q. answered: “It would take me about three years to
adjust to that, because that’s how long it took me to make all my friends from
Salisbury.” E.R.Q. explained that she believed “[Defendant] and [Plaintiff] need to
communicate more.” Finally, E.R.Q. testified: “I love both my mothers equally.”
Judge Bickett expressed concerns over “nuances to family law that you all
haven’t really argued here that really worried me to death on this case.” Recognizing
that, pursuant to N.C.G.S. § 50-13.7, he first had to find a change of circumstances
affecting the welfare of E.R.Q., and only then consider the best interests of E.R.Q.,
Judge Bickett asked: “If I find that hasn’t happened[3] then it reverts – then I dismiss
your action. If I do that, what does it do to the temporary orders that are entered?”
Defendant’s attorney stated that he thought all the visitation orders would be “gone”
if the trial court denied Plaintiff’s underlying motion to modify custody pursuant to
N.C.G.S. § 50-13.7. Judge Bickett responded:
I think they’re gone, too. I mean, you all aren’t – aren’t
conversing. I mean, it’s obvious [E.R.Q.] expressed a
preference. . . . . From 2005 to 2010 . . . [Plaintiff] was
pretty much nonexistent. As I said from the last time,
there are at least three grounds under North Carolina law
where I could terminate [Plaintiff’s parental] rights, and I
would have terminated her rights if it were a neglect
case. It’s also, you know, since 2012 when she filed this
2 The relationship between Defendant and Kresge ended sometime before Plaintiff filed this
action, and Kresge moved out of the house.
3 That the requirements for modification pursuant to N.C.G.S. § 50-13.7 had not been met.
- 20 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
lawsuit she’s been totally in. I mean, she’s really been
doing what she’s supposed to do. But a child needs
permanency. They need to have the same thing from day
to day and [Plaintiff] hasn’t done that. I mean, she’s gotten
– she’s very involved now. I’m going to take it under
advisement. I need to figure out how to structure an order
that is in [E.R.Q.’s] best interest. I mean, I could easily say
your motion’s denied and then I don’t know where we’re
left. I don’t think that it is in [E.R.Q.’s] best interest that
she not have a strong relationship with her mother, and
that’s what I was trying to do. That’s why I tried to do this
order to get you more and more time with her so to develop
a strong relationship and to do something over the summer
where your client had extended time with her. But
obviously you []all didn’t want that. So I’ll make a decision
and I’ll figure out how I can do my order. But I need to
think about it and reread some of the North Carolina law
to figure out how I can structure an order that will help her
in the best interest. And I’m not exactly sure based upon
the pleadings and what you all are asking for how I can do
that. But I’ll figure it out. (Emphasis added).
From Judge Bickett’s remarks at the hearing, it appears to this Court that his opinion
at that time was that Plaintiff had not met her burden under N.C.G.S. § 50-13.7, but
that he did not believe E.R.Q.’s best interest would be met if the result of denial of
Plaintiff’s motion to modify custody might lead to Plaintiff losing all visitation rights,
so he was going to review the relevant law and try and find a way to preserve
visitation between Plaintiff and E.R.Q.
Plaintiff filed a motion in the cause on 22 April 2016 seeking to be allowed to
present additional evidence to the trial court, and seeking a show cause order against
Defendant for violating terms of the 1 May 2013 temporary consent order. A hearing
was conducted on 12 May 2016, but Plaintiff’s motions were not considered because
- 21 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
Defendant’s attorney informed the trial court that he no longer had a working
relationship with Defendant, and Judge Bickett continued the matters because he
would not proceed on Plaintiff’s motion’s if Defendant did not have appropriate
representation. The following day, 13 May 2016, Plaintiff filed a “Motion for Mistrial
and Motion for Recusal,” arguing, inter alia, that Judge Bickett demonstrated bias
against Plaintiff during the prior hearings and had not acted in a timely fashion to
the prejudice of Plaintiff. Plaintiff also argued that, during the 24 February 2016
hearing, “immediately after issuing a written order that stated that Plaintiff had
shown a substantial change of circumstances . . . Judge Bickett announced that there
had been no substantial change of circumstances.” Review of both the 24 February
2016 order and the 24 February 2016 hearing show that Judge Bickett did not reach
a conclusion on the issue of substantial change of circumstances affecting the welfare
of E.R.Q. in either the order or the hearing. Plaintiff also stated in her motion that
she was filing a complaint against Judge Bickett with the North Carolina Judicial
Standards Commission. Plaintiff requested that a mistrial be declared in the matter,
and that “a new judge be appointed to hear the merits of the case[.]”
Judge Bickett entered the custody order from which Plaintiff currently appeals
– the Bickett Order – on 16 May 2016. The Bickett Order concluded that Plaintiff
had “failed to meet her burden to show that there has been a substantial and material
change of circumstances affecting the welfare of” E.R.Q., and that Plaintiff had “acted
inconsistently with her constitutionally protected status to parent her child[.]” Judge
- 22 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
Bickett denied Plaintiff’s Motion to modify the Florida Order, and Plaintiff’s Action
was dismissed.
Plaintiff filed a “Motion for a New Trial” pursuant to N.C. Gen. Stat. § 1A-1,
Rule 59 (2017), on 23 May 2016. Plaintiff filed an affidavit from Florida attorney
Craig A. Boudreau (“Boudreau”) on 22 August 2016, in which Boudreau cited to
provisions of Florida law – including Florida’s UCCJEA statutes – that Boudreau
suggested demonstrated jurisdiction had remained with the Florida court. Boudreau
further contended a Florida statute, not N.C.G.S. § 50-13.7, should have determined
the proper standard to apply when considering whether to modify the Florida Order.
The Boudreau affidavit appears to be the first record evidence challenging North
Carolina’s jurisdiction to act in Plaintiff’s Action, and the first indication that
Plaintiff was going to argue that Florida law controlled the outcome in Plaintiff’s
Action. Plaintiff’s new argument was that the sole relief Plaintiff had requested in
this matter4 – modification of the Florida Order based upon a change of circumstances
as required by N.C.G.S. § 50-13.7 – was not justified under the law.
A new judge, Judge James Randolph (“Judge Randolph”), became involved in
the case by at least 24 August 2016, as the record demonstrates that he presided over
a hearing on that date. Judge Bickett recused himself from the matter by order
4 By filing her 15 November 2012 “Motion in the Cause for Modification of a Prior Order,”
which initiated the present action, and by arguing, exclusively, over years of litigation and many days
of hearings, that Plaintiff had met the requirements of N.C.G.S. § 50-13.7 for modification of the
Florida Order.
- 23 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
entered 6 September 2016. If the 24 August 2016 hearing was recorded, it has not
been included in the record, though we note that this hearing occurred after Plaintiff
had filed her Rule 59 motion and the Boudreau affidavit, and therefore subsequent
to the time Plaintiff alleges that she became aware that North Carolina had never
obtained jurisdiction in this matter. Judge Randolph entered a temporary custody
order on 7 September 2016, based upon the 24 August 2016 hearing, in which he
concluded that the trial court had subject matter jurisdiction, North Carolina was
E.R.Q.’s home state, and in which he ordered certain specific visitation provisions.
This order did not acknowledge any jurisdictional or choice of law concerns raised by
Plaintiff.
Plaintiff’s Rule 59 motion for a new trial was heard on 7 September and 19
October 2016.5 The order from which Defendant appeals was entered by Judge
Randolph on 17 November 2016 (the “Randolph Order”). In the Randolph Order, the
trial court addressed the new arguments raised by Plaintiff involving jurisdiction and
Florida law. Judge Randolph ruled that the trial court had never obtained subject
matter jurisdiction pursuant to UCCJEA requirements, and therefore, effectively,
that all prior orders entered by the trial court were void. However, the trial court
included conclusions of law unrelated to subject matter jurisdiction, namely: “The
[trial court] finds that there exist sufficient grounds under North Carolina Rules of
5 Only the transcript for 7 September 2016 appears in the record.
- 24 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
Civil Procedure Rule 59 to warrant a new trial, if this [c]ourt obtains subject matter
jurisdiction. This [c]ourt should give Full Faith and Credit to Florida law.” Based
upon its findings and conclusions, the trial court ordered:
1. Plaintiff’s Motion for New Trial is granted, if Florida
releases subject matter jurisdiction to North Carolina.
2. [That Judge Randolph would contact the appropriate
judge in Florida to seek release of jurisdiction.]
....
4. As the [Florida Order] originated in Palm Beach County,
Florida, Florida law applies to the interpretation of said
order.
Following entry of the Randolph Order, the trial court entered a “Formal Order
from Consent Judgment/Order” on 13 December 2016, in which it modified a
visitation provision of the 7 September 2016 temporary custody order. Defendant
filed notice of appeal from the Randolph Order on 16 December 2016. Plaintiff filed
notice of appeal from the Bickett Order on 19 December 2016.
C. Procedural History for Appeal in COA17-1344
Plaintiff filed a “Verified Motion in the Cause to Terminate Order for
Temporary Custody” on 4 January 2017 (the “Verified Motion”), under the same case
number assigned to Plaintiff’s prior action. In that motion, Plaintiff requested that
the trial court make a determination that Plaintiff was “a fit parent and able to
assume all parental responsibilities” for E.R.Q. and thereupon order the Florida
Order “be terminated pursuant to Ch. 751.05(6), Florida Statutes.” The Florida court
- 25 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
entered an order purporting to “transfer” jurisdiction to North Carolina on 21
February 2017. A hearing was conducted on the Verified Motion on 14 March 2017.
The trial court entered a “Child Custody Order” on 28 March 2017 (the “2017 Order”)
in which it found that the “State of Florida . . . transferred jurisdiction of this child
custody matter to the State of North Carolina” on 21 February 2017. The trial court,
applying Florida law, concluded that Plaintiff was “a fit parent” and “a proper person
to assume legal and physical custody of” E.R.Q. Based upon these findings, the trial
court “ordered, adjudged and decreed” that the Florida Order was terminated; that
the 2017 Order “supersedes and vacates all other North Carolina Orders in this court
file[;]” that “Plaintiff shall have legal and physical custody of” E.R.Q., and that E.R.Q.
“shall transition to live with Plaintiff [] in Herndon, Virginia” on 2 April 2017. No
provisions for visitation between E.R.Q. and Defendant were included in the 2017
Order. Defendant appealed the 2017 Order on 27 April 2017.
II. Appeal in COA17-675
A. Plaintiff’s Appeal
1. Appellate Jurisdiction
As an initial matter, we must determine whether this Court has jurisdiction to
consider Plaintiff’s appeal. Plaintiff’s notice of appeal from the 16 May 2016 Bickett
Order was filed on 19 December 2016, well beyond the thirty-day requirement set
forth in Rule 3(c)(1). N.C. R. App. P. 3(c)(1). Therefore, the timeliness of Plaintiff’s
appeal hinges upon whether Plaintiff’s 23 May 2016 “Motion for New Trial” pursuant
- 26 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
to Rule 59 served to toll the thirty-day period as allowed by Rule 3(c)(3). See Batlle
v. Sabates, 198 N.C. App. 407, 413, 681 S.E.2d 788, 793 (2009). In Smith v. Johnson,
125 N.C. App. 603, 481 S.E.2d 415 (1997), this Court dismissed the defendants’ appeal
based upon the following reasoning:
To qualify as a Rule 59 motion within the meaning of Rule
3 of the Rules of Appellate Procedure, the motion must
“state the grounds therefor” and the grounds stated must
be among those listed in Rule 59(a). N.C.G.S. § 1A-1, Rule
7(b)(1) (1990); N.C.G.S. § 1A-1, Rule 59(a) (1990); see
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure: Civil 2d § 2811, at 132
(1995) (motion that “does not sufficiently state grounds has
been treated as a nullity and ineffective” for extending time
for taking appeal). The mere recitation of the rule number
relied upon by the movant is not a statement of the grounds
within the meaning of Rule 7(b)(1). The motion, to satisfy
the requirements of Rule 7(b)(1), must supply information
revealing the basis of the motion.
In this case the defendants indicate in the motion that they
rely on Rule 59(a)(2) & (7) as the bases of their
motion. There are, however, no allegations in the motion
revealing any “[m]isconduct of the jury or prevailing party,”
N.C.G.S. § 1A-1, Rule 59(a)(2), or an “[i]nsufficiency of the
evidence to justify the verdict or that the verdict is contrary
to law.” N.C.G.S. § 1A-1, Rule 59(a)(7).
Smith, 125 N.C. App. at 606, 481 S.E.2d at 417 (citations omitted) (emphasis added);
see also Meehan v. Cable, 135 N.C. App. 715, 721, 523 S.E.2d 419, 423 (1999).
Plaintiff’s purported Rule 59 motion included bare allegations of errors
pursuant to Rule 59(a), but did not allege any actual conduct that would support any
of those bare allegations of error. For example, Plaintiff’s motion alleged: “Plaintiff
- 27 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
moves pursuant to Rule 59 . . . for a new trial on Plaintiff’s Motion to Change Custody
because . . . [of] insufficiency of evidence to justify the verdict, the verdict is contrary
to law, errors in law occurring at trial and objected to by [] Plaintiff[.]” However,
Plaintiff’s purported Rule 59 motion included “no allegations in the motion revealing
. . . an ‘[i]nsufficiency of the evidence to justify the verdict or that the verdict is
contrary to law[,]’” or any error of law objected to by Plaintiff. Smith, 125 N.C. App.
at 606, 481 S.E.2d at 417 (citation omitted). Plaintiff’s motion, by simply reciting
statutory language, included nothing more than bald allegations that certain
statutory grounds existed – specifically those included in Rule 59(a)(1), (3), (4), (7),
and (8). Plaintiff’s mere recitation of grounds laid out in Rule 59(a) was insufficient
to “qualify [her motion] as a Rule 59 motion within the meaning of Rule 3 of the Rules
of Appellate Procedure[.]” Id. (citations omitted). To the extent the Boudreau
affidavit included allegations relevant to Plaintiff’s Rule 59 motion, those allegations
were not part of Plaintiff’s Rule 59 motion because the affidavit was not filed until 22
August 2016, and was not incorporated into Plaintiff’s motion. N.C.G.S. § 1A-1, Rule
59(c).
Because Plaintiff’s 23 May 2016 motion did not qualify as a motion for a new
trial pursuant to Rule 59, its filing did not toll the time Plaintiff had to file her notice
of appeal from the 16 May 2016 Bickett Order and, therefore, Plaintiff’s 19 December
2016 Notice of Appeal was not timely filed. N.C. R. App. P. 3(a)(1); Smith, 125 N.C.
- 28 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
App. at 606, 481 S.E.2d at 417. Absent a timely filed notice of appeal, this Court is
without jurisdiction to consider Plaintiff’s appeal. Id.
Although a lack of subject matter jurisdiction normally precludes an appellate
court from considering the merits of an appeal, there is an exception when the lack of
jurisdiction is based on failure to timely file a notice of appeal. “Our appellate courts
have explained on multiple occasions that ‘[n]o appeal lies from an order of the trial
court dismissing an appeal for failure to perfect it within apt time, the proper remedy
to obtain review in such case being by petition for writ of certiorari.’” Am. Mech., Inc.
v. Bostic, 245 N.C. App. 133, 137, 782 S.E.2d 344, 346, disc. review denied, __ N.C. __,
784 S.E.2d 472 (2016) (citations omitted). Plaintiff has not petitioned this Court for
review pursuant to writ of certiorari. However, we chose to treat Plaintiff’s appeal
as a petition for writ of certiorari, and address her arguments. See Anderson v.
Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997).
2. Plaintiff’s Arguments
Plaintiff argues three issues on appeal from the Bickett Order: (1) that the trial
court “erred by entering the [Bickett] Order as the [trial] court lacked subject matter
jurisdiction;” (2) that the trial court “erred by applying North Carolina law, rather
than Florida law in its custody order;” and (3) that the trial court “abused [its]
discretion by finding and concluding as a matter of law that Plaintiff [] had ‘engaged
in conduct inconsistent with her constitutionally protected status of a parent.’” We
address each argument in turn, and affirm the Bickett Order.
- 29 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
a. Subject Matter Jurisdiction
Plaintiff first argues that Judge Bickett lacked jurisdiction to enter the Bickett
Order. We disagree.
The UCCJEA and the Parental Kidnapping Prevention Act (“PKPA”) control
whether courts of this State have jurisdiction to modify custody determinations
entered by courts of another state. See N.C. Gen. Stat. §§ 50A-201 to 210 (2017); 28
U.S.C.A. § 1738A. It is the continuing duty of this Court to insure, even sua sponte,
that the trial court had subject matter jurisdiction in every action it took. Although
Plaintiff makes no argument concerning the PKPA, we have determined that the
provisions of the PKPA were met in the present case. Plaintiff argues, however, that
the jurisdictional requirements of the UCCJEA were not met prior to entry of the
Bickett Order.
Although Plaintiff bases her argument on a different statute, the requirements
for obtaining jurisdiction to modify a custody order entered in another state are found
in N.C.G.S. § 50A-203 – “Jurisdiction to modify determination”:
Except as otherwise provided in G.S. 50A-204, a court of
this State may not modify a child-custody determination
made by a court of another state unless a court of this State
has jurisdiction to make an initial determination under
G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) and:
(1) The court of the other state determines it no longer
has exclusive, continuing jurisdiction under G.S. 50A-
202 or that a court of this State would be a more
convenient forum under G.S. 50A-207; or
- 30 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
(2) A court of this State or a court of the other state
determines that the child, the child’s parents, and any
person acting as a parent do not presently reside in the
other state.
N.C.G.S. § 50A-203 (emphasis added).
Pursuant to N.C.G.S. § 50A-201, a court of this State has jurisdiction to enter
an initial custody determination if “[t]his State is the home state of the child on the
date of the commencement of the proceeding[.]” N.C.G.S. § 50A-201(a)(1). In a 1 May
2013 “Temporary Consent Order,” the trial court found and concluded, that “North
Carolina is the home state of [E.R.Q.] . . . and none of the parties to this action
presently reside in the state of the Prior Order [Florida].” (Emphasis added). Plaintiff
does not dispute either of these findings, and they are supported by the facts in this
case. It is uncontested that North Carolina is the “home state” of E.R.Q. and,
therefore, that the trial court had “jurisdiction to make an initial determination
under G.S. 50A-201(a)(1)[.]” N.C.G.S. § 50A-203. The trial court correctly
determined that none of the relevant persons – E.R.Q., Plaintiff, Defendant, or Carter
– were residents of Florida at any time relevant to our jurisdictional analysis, which
satisfies N.C.G.S. § 50A-203(2). Because both conditions for modification jurisdiction
pursuant to N.C.G.S. § 50A–203(2) were met, the trial court had jurisdiction to
consider Plaintiff’s Action to modify the Florida Order, and to enter the various
visitation and other orders entered in relation to the issue of E.R.Q.’s custody,
- 31 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
including the Bickett Order. In re J.H., 244 N.C. App. 255, __, 780 S.E.2d 228, 235–
38 (2015).
Plaintiff, however, argues that the Florida court had “exclusive, continuing
jurisdiction” (“ECJ”) pursuant to N.C.G.S. § 50A-202 until the Florida court released
jurisdiction to North Carolina. Plaintiff is correct that a court with ECJ over a
custody matter is the only court with jurisdiction to act in that matter. 6 See, e.g.,
Matter of T.E.N., __ N.C. App. __, 798 S.E.2d 792 (2017). However, if the
requirements for modification of a custody determination from another state
pursuant to N.C.G.S. § 50A-203 are met, ECJ for that state will have ceased pursuant
to the terms of N.C.G.S. § 50A-202. Relevant to this appeal, Florida lost ECJ because
the trial court in North Carolina “determine[d] that [E.R.Q.], [E.R.Q.]’s parents, and
[Defendant] d[id] not presently reside in [Florida]” at any time relevant to Plaintiff’s
Action. N.C.G.S. § 50A-202(a)(2). Matter of T.E.N., __ N.C. App. at __, 798 S.E.2d at
794; In re E.J., 225 N.C. App. 333, 336, 738 S.E.2d 204, 206 (2013); In re N.R.M.,
T.F.M., 165 N.C. App. 294, 298–301, 598 S.E.2d 147, 149–51 (2004).
Plaintiff also argues that Defendant’s relocation to North Carolina violated a
Florida statute and thereby caused jurisdiction to remain with the Florida
court. When Defendant moved to North Carolina in July of 2008, violation of the
6 With the exception of temporary emergency jurisdiction, which may be exercised by a court
without ECJ when a child’s welfare requires immediate action. N.C.G.S. § 50A-204.
- 32 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
statute in question, Fla. Stat. § 61.13001(3)(f) (2007), “subject[ed] the party in
violation thereof to contempt and other proceedings to compel the return of the
child[.]” Id.7 Nothing in the Florida statute itself served to deprive the trial court of
jurisdiction in this case. The provisions of the UCCJEA relevant to Plaintiff’s
argument state:
(a) Except as otherwise provided in G.S. 50A-204 or by
other law of this State, if a court of this State has
jurisdiction under this Article because a person seeking to
invoke its jurisdiction has engaged in unjustifiable
conduct, the court shall decline to exercise its jurisdiction
unless:
(1) The parents and all persons acting as parents have
acquiesced in the exercise of jurisdiction[.]
N.C.G.S. § 50A-208. Even assuming, arguendo, Defendant was a “person seeking to
invoke” jurisdiction in North Carolina, and that she engaged in “unjustifiable
conduct” by moving with E.R.Q. to North Carolina, Plaintiff clearly acquiesced to the
jurisdiction of this State by registering the Florida Order in North Carolina, and by
filing her action here. Id. None of the orders entered prior to the Randolph Order,
including the Bickett Order, were void for lack of subject matter jurisdiction.
b. Choice of Law and Full Faith and Credit
7 This portion of the statute has since been amended.
- 33 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
Plaintiff argues that the trial court failed to afford full faith and credit to the
Florida Order, and “erred by applying North Carolina law, rather than Florida law
in” the Bickett Order. We disagree.
i. Child Custody Law in North Carolina and Florida
We first note that in North Carolina, as in Florida, trial courts are given very
broad discretion in child custody matters – whether initially or upon a request for
modification of a prior custody order – based upon the universal principle that the
best interest of the child shall remain paramount. See Shipman v. Shipman, 357
N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (citations omitted) (“As in most child
custody proceedings, a trial court’s principal objective is to measure whether a change
in custody will serve to promote the child’s best interests. Therefore, if the trial court
does indeed determine that a substantial change in circumstances affects the welfare
of the child, it may only modify the existing custody order if it further concludes that
a change in custody is in the child’s best interests.”); Castillo v. Castillo, 950 So. 2d
527, 528 (Fla. Dist. Ct. App. 2007) (citations omitted) (“The trial court exercises broad
discretion in making a child custody determination, and its decision is reviewed for a
clear showing of an abuse of discretion. . . . . ‘Decisions affecting child custody
require a careful consideration of the best interests of the child.’”). This Court “has
often reiterated that the jurisdiction of the court to protect infants is broad,
comprehensive and plenary.” Massey v. Massey, 121 N.C. App. 263, 268–69, 465
S.E.2d 313, 316 (1996) (citations and quotation marks omitted). “Any judgment
- 34 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
entered by consent or otherwise, determining the custody and maintenance of minor
children, may be modified by the court at any time changed conditions make a
modification right and proper.” Zande v. Zande, 3 N.C. App. 149, 153–54, 164 S.E.2d
523, 527 (1968) (citations omitted); see also In re Marlowe, 268 N.C. 197, 199, 150
S.E.2d 204, 206 (1966); Reed v. Reed, 182 So. 3d 837, 840-41 (Fla. Dist. Ct. App.
2016). Under both North Carolina and Florida law generally, the provisions of a
custody order remain susceptible to modification based upon a substantial change of
circumstances affecting the welfare of the child and a finding that modification would
be in the child’s best interest. N.C. Gen. Stat. § 50-13.7 (2017); Fla. Stat. § 61.13(2)(c)
(2017).
However, in both North Carolina and Florida, the burdens for modifying
regular custody orders are dependent on whether the order is “temporary” or
“final.” See Simmons v. Arriola, 160 N.C. App. 671, 674, 586 S.E.2d 809, 811 (2003);
Jones, 674 So. 2d at 774. Florida, unlike North Carolina, has a special proceeding for
granting “temporary” custody of a child to an “extended family member” for the
purposes of recognizing “that many minor children in this state live with and are well
cared for by members of their extended families” because the “parents of these
children have often provided for their care by placing them temporarily with another
family member who is better able to care for them.” Fla. Stat. § 751.01(1) (2007) (part
of an act (the “Act”) entitled: “Temporary Custody of Minor Children by Extended
Family”). Through the Act, parents can relatively easily transfer both legal and
- 35 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
physical custody of their children to certain relatives. Fla. Stat. § 751.05 (2007). The
Act also provides a simple method for parents to regain full custody of their children
– filing the appropriate petition to terminate the custody order and demonstrating to
the court that they are “a fit parent,” or demonstrating that all parties to the order
consent to return of custody to the parent. Fla. Stat. § 751.05(6). It is through the
procedures set forth in the Act that, with the consent of both Plaintiff and Carter,
legal and physical custody of E.R.Q. was transferred to Defendant. North Carolina
has no legislation similar to the Act.
ii. Failure to Preserve Issues
We first hold that Plaintiff has failed to preserve the issues of full faith and
credit or what law controls for appellate review. Plaintiff’s Action was initiated by
Plaintiff’s Motion to modify the Florida Order. Plaintiff’s Motion expressly and solely
requested the remedy of modification pursuant to North Carolina law, specifically
N.C.G.S. § 50-13.7. During the ensuing three and a half years, which culminated in
a ten-day trial, additional hearings, and entry of the Bickett Order, Plaintiff sought
modification of the Florida Order pursuant to N.C.G.S. § 50-13.7, and never gave the
trial court any indication she believed the matter should be considered pursuant to
Florida law. After her motion to modify the Florida Order was denied by the Bickett
Order, Plaintiff filed her Rule 59 “Motion for New Trial.”
As discussed above, Plaintiff’s Rule 59 motion was not valid. Nonetheless,
Plaintiff purported to request a new trial on the basis of, inter alia, the following: “the
- 36 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
verdict is contrary to law, [and there were] errors in law occurring at trial and
objected [to] by [] Plaintiff[.]” Plaintiff’s language, “errors in law occurring at trial
and objected [to] by [] Plaintiff[,]” tracks the language of Rule 59(a)(8).
In order to obtain relief under Rule 59(a)(8), a defendant
must show a proper objection at trial to the alleged error of
law giving rise to the Rule 59(a)(8) motion. Neither
defendant’s post-trial motion nor the remaining record
before us shows a proper objection at trial to any of the
rulings at issue. Nothing else appearing, from the record
before us, defendant failed to preserve his right to pursue
a Rule 59(a)(8) motion.
Davis v. Davis, 360 N.C. 518, 522–23, 631 S.E.2d 114, 118 (2006). None of the other
Rule 59 grounds for a new trial referenced in Plaintiff’s motion are applicable to
Plaintiff’s choice of law argument. The “verdict is contrary to law” language, which
tracks part of Rule 59(a)(7), refers to a verdict rendered after a proper proceeding,
but that is still in some manner unlawful. See, e.g., Matter of Will of Leonard, 71 N.C.
App. 714, 718, 323 S.E.2d 377, 380 (1984) (citation omitted) (grant of a new trial was
proper based upon unlawful verdict because “[t]he jury cannot find both for the
plaintiff and the defendant on the same issue”). Plaintiff’s arguments that the trial
court did not give full faith and credit to the Florida Order, and applied the wrong
law, were issues of law that Plaintiff was required to object to prior to or during trial.
Davis, 360 N.C. at 522–23, 631 S.E.2d at 118. Because Plaintiff did not object based
upon those issues at trial, those issues were not properly preserved as arguments for
Plaintiff’s Rule 59 motion for a new trial, and the trial court erred in considering
- 37 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
them. Id.; Barnett v. Security Ins. Co. of Hartford, 84 N.C. App. 376, 380, 352 S.E.2d
855, 858 (1987).
Absent a proper objection at trial, Plaintiff has also failed to preserve these
issues for appellate review.
In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C. R. App. P. 10(a)(1). Plaintiff did not simply fail to object to the trial court’s
application of N.C.G.S. § 50-13.7 at trial, she affirmatively and solely requested relief
pursuant to N.C.G.S. § 50-13.7. Plaintiff may not base an appeal on an alleged error
that she invited. Frugard v. Pritchard, 338 N.C. 508, 512, 450 S.E.2d 744, 746 (1994)
(a party has no right to appeal invited error: “A party may not complain of action
which [s]he induced”) (citations omitted). This argument is therefore dismissed on
these bases as well.
iii. Merits
We further hold that the rulings in the Bickett Order gave full faith and credit
to the Florida Order and properly applied the law of North Carolina. Plaintiff argues:
“‘Full Faith and Credit shall be given in each State to the public Acts, Records, and
Judicial Proceedings of every other State.’ U.S. Const. art. IV, § 1.” However, the
United States Supreme Court has “declined expressly to settle the question” of
- 38 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
whether “custody orders [a]re sufficiently ‘final’ to trigger [the] full faith and credit
requirements” of U.S. Const. art. IV, § 1. Thompson v. Thompson, 484 U.S. 174, 180,
98 L. Ed. 2d 512 (1988) (citations omitted). The Court in Thompson reasoned:
Even if custody orders were subject to full faith and credit
requirements, the Full Faith and Credit Clause obliges
States only to accord the same force to judgments as would
be accorded by the courts of the State in which the
judgment was entered. Because courts entering custody
orders generally retain the power to modify them, courts in
other States were no less entitled to change the terms of
custody according to their own views of the child’s best
interest. For these reasons, a parent who lost a custody
battle in one State had an incentive to kidnap the child and
move to another State to relitigate the issue. This
circumstance contributed to widespread jurisdictional
deadlocks . . ., and more importantly, to a national
epidemic of parental kidnaping.
Id. at 180, 98 L. Ed. 2d at 521 (citations omitted). Congress attempted to address
this issue by enacting the PKPA, thereby severely limiting the circumstances in
which a state could exercise jurisdiction to modify a custody order properly entered
in another state:
Once a State exercises jurisdiction consistently with the
provisions of the [PKPA], no other State may exercise
concurrent jurisdiction over the custody dispute, §
1738A(g), even if it would have been empowered to take
jurisdiction in the first instance, and all States must accord
full faith and credit to the first State’s ensuing custody
decree.
Id., at 177, 98 L. Ed. 2d at 518-19. The PKPA created a statutory requirement that
states afford full faith and credit to custody orders initially entered in a different
- 39 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
state. This full faith and credit requirement is not based upon U.S. Const. art. IV, §
1, the Full Faith and Credit Clause. Id., at 181, 98 L. Ed. 2d at 521 (“[t]he context of
the PKPA therefore suggests that the principal problem Congress was seeking to
remedy was the inapplicability of full faith and credit requirements to custody
determinations”); In re Craigo, 266 N.C. 92, 95, 145 S.E.2d 376, 378 (1965) (Full Faith
and Credit Clause does not apply to custody orders); Williams v. Walker, 185 N.C.
App. 393, 400, 648 S.E.2d 536, 541 (2007).
As discussed above, because of the unique nature of child custody
determinations, our Supreme Court has recognized that the rules governing regular
civil foreign judgments are different than those governing child custody orders. Both
Florida law and the terms of the Florida Order allowed modification of the Florida
Order by the Florida court – so long as that court retained jurisdiction. The Florida
Order awarded custody of E.R.Q. to Defendant conditioned upon the following
relevant provisions: (1) Defendant “is awarded temporary physical and legal custody
of . . . [E.R.Q.], until the child turns 18 years old or the parents petition for
modification of custody under Section 751.05(7), Florida Statutes” and, (2)
“RESERVATIONS: The [Florida court] retains jurisdiction to enforce or modify the
terms of this final judgment as may, from time to time, become necessary.” (Emphasis
added).
As our Supreme Court held under similar circumstances, since the trial court
in North Carolina had obtained jurisdiction, it could
- 40 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
consider any change or circumstances that [arose] since the
entry of the Florida decree . . ., and [it could] determine
what [was] for the best interest of the child and [] award
custody accordingly. But, in disposing of the custody of the
minor child in controversy, the Florida decree awarding
her custody to the petitioner is entitled to full faith and
credit as to all matters existing when the decree was entered
and which were or might have been adjudicated
therein. “[W]here a decree . . . fixing the custody of the
children . . . is rendered in accordance with the laws of
another state by a court of competent jurisdiction, such
decree will be given full force and effect in other states as
long as the circumstances attending the rendition of the
decree remain the same. The decree has no controlling
effect in another state as to the facts and conditions arising
subsequent to its rendition.”
In re Marlowe, 268 N.C. 197, 199–200, 150 S.E.2d 204, 206–07 (1966) (emphasis
added);8 Spence v. Durham, 283 N.C. 671, 683–84, 198 S.E.2d 537, 545 (1973); Spoon
v. Spoon, 233 N.C. App. 38, 44, 755 S.E.2d 66, 71 (2014). Further, in another case
procedurally similar to the present case, our Supreme Court reasoned:
Since this is a case involving modification of a custody
order entered with the consent of both parties by a court in
California, the controlling statute is N.C.G.S. § 50-13.7.
That statute provides in pertinent part:
[W]hen an order for custody of a minor child has been
entered by a court of another state, a court of this State
may, upon gaining jurisdiction, and a showing of
changed circumstances, enter a new order for custody
which modifies or supersedes such order for custody.
8 The jurisdictional rules set forth in the UCCJEA supersede prior jurisdictional rules.
However, the fact that a court with jurisdiction can always modify a custody order, whether from this
State or another, upon a showing of substantially changed circumstances and in accordance with the
best interests of the child, remains the law of this State.
- 41 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
N.C.G.S. § 50-13.7(b) (1995).
Pulliam v. Smith, 348 N.C. 616, 624, 501 S.E.2d 898, 902 (1998).9 In Pulliam our
Supreme Court did not look to California law to determine whether modification of
the existing California consent custody order was warranted, it applied the standard
mandated by N.C.G.S. § 50-13.7(b).
It is true that the Florida Order granted custody to Defendant pursuant to a
procedure not found in North Carolina, and that the Florida Order provided for
modification of its terms by the procedure set forth in Fla. Stat. § 751.05. However,
once the trial court in North Carolina obtained jurisdiction, it had the authority to
modify the Florida Order; based upon findings of substantial change in circumstances
affecting E.R.Q. and that modification would be in E.R.Q.’s best interest. Pulliam,
348 N.C. at 624, 501 S.E.2d at 902. Full faith and credit, as well as the UCCJEA,
required that the trial court recognize and enforce the custody determination made in
the Florida Order – that Defendant had legal and physical custody of E.R.Q., and that
any attempt to deprive Defendant of custody, absent modification of the Florida
Order, would be in derivation of the UCCJEA, but only so long as the Florida Order
was not validly modified or vacated.10 Once the trial court obtained jurisdiction, it
could only modify the Florida Order pursuant to N.C.G.S. § 50-13.7(b). This does not
mean that the trial court was free to ignore the Florida Order, but the terms and
9 N.C.G.S. § 50-13.7(b) has been amended to clarify that modification is “[s]ubject to the
provisions of G.S. 50A-201, 50A-202, and 50A-204” of the UCCJEA.
10 Again, excepting for emergency jurisdiction provisions as set forth in N.C.G.S. § 50A-204.
- 42 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
intent of the Florida Order had to be considered based upon the circumstances in
existence when that order was entered, and further considered within the context of
everything that had transpired after entry of the Florida Order. The trial court has
broad discretion with respect to custody matters, and is expected to consider all
relevant factors when making any custody determination. Assuming, arguendo,
Plaintiff’s arguments were properly before us, we would reject Plaintiff’s arguments
concerning jurisdiction, full faith and credit, and application of North Carolina law to
Plaintiff’s Action, and affirm the trial court’s denial of Plaintiff’s Motion.
c. Conduct Inconsistent with Protected Status as a Parent
Plaintiff argues that the trial court erred in finding and concluding “by clear
cogent and convincing evidence that [] Plaintiff [] acted inconsistently with her
constitutionally protected status to parent her child.” We disagree.
“[W]e review [a] conclusion [that the natural parent’s conduct was inconsistent
with her constitutionally protected right] de novo, and determine whether it is
supported by ‘clear and convincing evidence.’” Boseman v. Jarrell, 364 N.C. 537, 549,
704 S.E.2d 494, 502 (2010) (citations omitted).
“[T]here is no bright line beyond which a parent’s conduct
meets this standard. As we explained in Price [v. Howard,
346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997)], conduct rising
to the ‘statutory level warranting termination of parental
rights’ is unnecessary. Rather, ‘[u]nfitness, neglect, and
abandonment clearly constitute conduct inconsistent with
the protected status parents may enjoy. Other types of
conduct . . . can also rise to this level so as to be
inconsistent with the protected status of natural
- 43 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
parents.’”
Id. at 549–50, 704 S.E.2d at 503 (citations omitted).11 “[A] natural parent’s execution
of a valid consent judgment granting exclusive care, custody, and control of a child to
a nonparent, may be a factor upon which the trial court could base a conclusion that
a parent has acted inconsistently with his or her constitutionally protected
status.” Yurek v. Shaffer, 198 N.C. App. 67, 77, 678 S.E.2d 738, 745 (2009) (citations
omitted); see also Adams v. Tessener, 354 N.C. 57, 61-62, 550 S.E.2d 499, 502 (2001)
(when a parent voluntarily relinquishes custody to a non-parent for a significant
period of time, this may constitute a basis for making a determination that the parent
has acted inconsistently with her constitutionally protected status).
As our Supreme Court has determined:
[T]he United States Supreme Court has also recognized
that protection of the parent’s interest is not absolute. . . . .
The Court pointed out its traditional adherence to the
principle that “the rights of the parents are a counterpart
of the responsibilities they have assumed.” In discussing
this principle, the Court stated:
Thus, the “liberty” of parents to control the education of
their children that was vindicated in [prior opinions]
was described as a “right, coupled with the high duty,
to recognize and prepare [the child] for additional
obligations.” The linkage between parental duty and
parental right was stressed again . . . when the Court
declared it a cardinal principle “that the custody, care
and nurture of the child reside first in the parents,
whose primary function and freedom include
11 When a natural parent loses her constitutionally protected status, custody of a child as
between that parent and a non-parent is decided using the best interest of the child standard as stated
in N.C. Gen. Stat. § 50–13.2(a) (2017). Price, 346 N.C. at 84, 484 S.E.2d at 537.
- 44 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
preparation for obligations the state can neither supply
nor hinder.” In these cases the Court has found that the
relationship of love and duty in a recognized family unit
is an interest in liberty entitled to constitutional
protection.
In Lehr, the Court stressed the linkage between parental
duty and parental right and noted that the father in that
case had “never had any significant custodial, personal, or
financial relationship with [the child], and he did not seek
to establish a legal tie until after she was two years old.”
The Court reasoned that
[w]hen an unwed father demonstrates a full
commitment to the responsibilities of parenthood by
“com[ing] forward to participate in the rearing of his
child,” his interest in personal contact with his child
acquires substantial protection under the Due Process
Clause. At that point it may be said that he “act[s] as a
father toward his children.” But the mere existence of
a biological link does not merit equivalent
constitutional protection.
The Court further stated, “‘[T]he importance of the familial
relationship, to the individuals involved and to the society,
stems from the emotional attachments that derive from the
intimacy of daily association, and from the role it plays in
“promot[ing] a way of life” through the instruction of
children as well as from the fact of blood relationship.’”
Price, 346 N.C. at 76–77, 484 S.E.2d at 533 (citations omitted).
In Boseman, our Supreme Court discussed Price, stating:
Thus, under Price, when a parent brings a nonparent into
the family unit, represents that the nonparent is a parent,
and voluntarily gives custody of the child to the nonparent
without creating an expectation that the relationship
would be terminated, the parent has acted inconsistently
with her paramount parental status.
- 45 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
Boseman, 364 N.C. at 550–51, 704 S.E.2d at 503 (citations omitted). In Boseman,
upon the parent-mother’s initiation, she and a nonparent boyfriend were jointly
raising the child and participating equally in parenting decisions – resulting in a
stable, long-term family unit. “As such, the natural parent created along with the
nonparent a family unit in which the two acted as parents, shared decision-making
authority with the nonparent, and [by their actions] manifested an intent that the
arrangement exist indefinitely.” Id. at 551, 704 S.E.2d at 504; see also Id. at 552, 704
S.E.2d at 504.12
Although the Florida Order was “temporary” and included a provision whereby
Plaintiff could regain custody pursuant to a simplified process, absent specific action
taken by Plaintiff, Defendant was granted full legal and physical custody of E.R.Q.
until E.R.Q. reached adulthood. We hold that Plaintiff’s actions – and failure to act
– after she “voluntarily [gave] custody of [E.R.Q.] to [Defendant],” Id. at 550–51, 704
S.E.2d at 503 (citations omitted), satisfies the requirement that Plaintiff did not
“creat[e] an expectation that the relationship [between Defendant and E.R.Q.] would
be terminated” at some point in the future. Id. at 550-51, 704 S.E.2d at 503. We base
12 “[W]e recognize that there are circumstances where the responsibility of a parent to act in
the best interest of his or her child would require a temporary relinquishment of custody, such as
under a foster-parent agreement or during a period of service in the military, a period of poor health,
or a search for employment. However, to preserve the constitutional protection of parental interests
in such a situation, the parent should notify the custodian upon relinquishment of custody that the
relinquishment is temporary, and the parent should avoid conduct inconsistent with the protected
parental interests. Such conduct would, of course, need to be viewed on a case-by-case basis, but may
include failure to maintain personal contact with the child or failure to resume custody when able.”
Price, 346 N.C. at 83–84, 484 S.E.2d at 537 (emphasis added).
- 46 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
our holding in part on Plaintiff’s lack of meaningful interaction with E.R.Q. for a
period of years, and on the fact that, other than the Florida action Plaintiff filed in
2009 then abandoned, Plaintiff failed to make any formal attempt to regain custody
of E.R.Q. for over six years.
Further, in Boseman, Price, and other opinions cited therein, the biological
parent continued to “act as a parent,” exercising control and providing support, but
also decided to share those parental rights and obligations with a nonparent. In the
present case, Plaintiff completely relinquished her parental responsibilities to
Defendant for a period of years, and the only familial bond that occurred during those
years was between Defendant and E.R.Q. Price, 346 N.C. at 76–77, 484 S.E.2d at
533-34.
We wish to make clear that Plaintiff’s voluntary relinquishment of custody to
Defendant pursuant to the Florida Order, standing alone, should not in any manner
be considered an act contrary to her protected status as a parent. The Florida
statutes provide that option for a salutary purpose, and the use of those statutes for
voluntary temporary relinquishment of custodial rights no doubt demonstrate acts of
parental love and responsibility in most instances. Plaintiff’s recognition that
Defendant was in a better position to care for E.R.Q. at the time Plaintiff consented
to entry of the Florida Order is presumed by this Court to have been an act of parental
responsibility. However, Plaintiff’s actions subsequent to entry of the Florida Order
reflect either a lack of ability, or desire, to take on even minimal continuing acts of
- 47 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
parental love or responsibility. Our Supreme Court has “emphasized that evidence
of a parent’s conduct should be viewed cumulatively.” Owenby v. Young, 357 N.C.
142, 147, 579 S.E.2d 264, 267 (2003). The fact that Plaintiff, after years of inaction,
eventually decided to make a concerted effort to regain custody of E.R.Q. should be
considered in the analysis, but weighed in light of the many years in which Plaintiff
fully relinquished her parental duties to Defendant. The relevant evidence presented
in this case is exhaustively examined above, and we need not revisit it.
We hold, upon de novo review, that the determination that Plaintiff’s conduct
had been inconsistent with her constitutionally protected status as a parent was
supported by clear and convincing evidence. Boseman, 364 N.C. at 549, 704 S.E.2d
at 502; Owenby, 357 N.C. at 147, 579 S.E.2d at 268. The Bickett Order is affirmed
and reinstated.
B. Defendants’ Appeal
1. Jurisdiction to Enter the Randolph Order
Defendant argues that Judge Randolph lacked subject matter jurisdiction to
enter the 17 November 2016 Randolph Order. We agree.
We first recognize that once the district court obtains jurisdiction over a child
custody matter, that jurisdiction continues until the child reaches the age of majority,
or some other factor serves to divest the district court of jurisdiction. See N.C.G.S. §
50A-202; Beck v. Beck, 64 N.C. App. 89, 93, 306 S.E.2d 580, 582 (1983). Judge
Bickett’s recusal did not affect the continuing jurisdiction of the trial court over the
- 48 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
subject matter of this action. However, the trial court may still lack jurisdiction to
act in certain circumstances – for instance, as discussed below, when the matter is on
appeal. As we discussed above in determining that Plaintiff had failed to timely file
her notice of appeal from the Bickett Order, Plaintiff’s purported Rule 59 motion for
a new trial was not a proper Rule 59 motion.13 Therefore, Plaintiff never presented
any proper Rule 59 motion to the trial court, and the trial court never obtained
jurisdiction over the subject matter of Plaintiff’s purported Rule 59 motion. See
Meehan v. Cable, 135 N.C. App. 715, 721, 523 S.E.2d 419, 423 (1999). Absent
jurisdiction to hear Plaintiff’s Rule 59 motion, the trial court could not enter any valid
order deciding Plaintiff’s motion. In re J.H., __ N.C. App. __, __, 780 S.E.2d 228, 233
(2015).
In addition, the Randolph Order was heard “on [] Plaintiff’s Motion for New
Trial, filed in response to the May 16, 2016 [Bickett] Order.” In Plaintiff’s motion for
a new trial, she limited the bases for granting a new trial to those set forth “pursuant
to Rule 59 of the N.C. Rules of Civil Procedure[.]” It is axiomatic that “[o]ne superior
court judge may not overrule another.” Able Outdoor, Inc. v. Harrelson, 341 N.C. 167,
169, 459 S.E.2d 626, 627 (1995) (citations omitted). However, “[i]f Judge [Bickett] did
not have jurisdiction to act . . ., his order was a nullity and Judge [Randolph] could
strike it.” Id. This Court has specifically held that a judge who did not hear a case
13 See section II., A., 1. of this opinion.
- 49 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
may not hear a Rule 59 motion for a new trial. Sisk v. Sisk, 221 N.C. App. 631, 636,
729 S.E.2d 68, 72 (2012) (judge who did not preside at trial “was without jurisdiction
to enter an order on plaintiff’s motion for new trial” pursuant to Rule 59).
Because we have held that Judge Bickett did have jurisdiction to enter the 16
May 2016 order, it was error for Judge Randolph to consider Plaintiff’s 23 May 2016
motion for a new trial. “[A] judge who did not try a case may not rule upon a motion
for a new trial. Judge [Randolph] was without jurisdiction to hear [P]laintiff’s Rule
59 motion for a new trial.” Sisk, 221 N.C. App. at 633, 729 S.E.2d at 70 (citations
omitted). Because Judge Randolph lacked subject matter jurisdiction to hear
Plaintiff’s Rule 59 motion, the Randolph Order is void. Plaintiff argues that the rule
in Sisk should not apply because Judge Bickett recused himself from participating in
Plaintiff’s Action. Plaintiff cites no authority for this position. It is true that a
different judge than the one who presided at a trial may step in and perform certain
acts – such as entering the order of the prior judge – pursuant to N.C. Gen. Stat. §
1A-1, Rule 63 (2017). See In re Savage, 163 N.C. App. 195, 197, 592 S.E.2d 610, 611
(2004). However, this Court has held that “[t]he function of a substitute judge under
[Rule 63] is ‘ministerial rather than judicial.’” Id. (citation omitted). “Rule 63 does
not contemplate that a substitute judge, who did not hear the witnesses and
participate in the trial, may nevertheless participate in the decision making process.
It contemplates only . . . [performing] such acts as are necessary under our rules of
procedure to effectuate a decision already made.” Id. at 198, 592 S.E.2d at 611
- 50 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
(citations and quotation marks omitted). The trial court lacked jurisdiction to hear
and decide Plaintiff’s Rule 59 motion for a new trial on the two separate bases
discussed above. We therefore vacate the 17 November 2016 Randolph Order.
2. Additional Issues
We take this opportunity to stress that a court without subject matter
jurisdiction can do nothing more than recognize its lack of jurisdiction and make
rulings that are directly consequent to that determination. Any additional action
taken would be a nullity and unenforceable. However, because the orders of a trial
court are not likely to be ignored, the trial court should strive to avoid confusion by
refraining from including findings, conclusions, or decretal statements that lack legal
effect. Had the trial court been correct in ruling in the Randolph Order that it lacked
subject matter jurisdiction, it would have therefore lacked jurisdiction to make any
additional substantive rulings. Subject matter jurisdiction is a prerequisite to any
binding judicial determination. Therefore, it was improper for the trial court, after
determining that it lacked subject matter jurisdiction, to conclude “that there exist
sufficient grounds under . . . Rule 59 to warrant a new trial, if this [c]ourt obtains
subject matter jurisdiction. This [c]ourt should give Full Faith and Credit to Florida
law.” It was equally improper for the trial court to decree that “Plaintiff’s Motion for
a New Trial is granted, if Florida releases subject matter jurisdiction to North
Carolina[,]” and that “Florida law applies to the interpretation of” the Florida Order.
See Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450, 453 (1942).
- 51 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
III. COA17-1344
Defendant, by separate appeal in COA17-1344, appeals from the 2017 Order –
Judge Randolph’s 28 March 2017 “Child Custody Order.” Defendant argues that the
trial court lacked jurisdiction to enter the 2017 Order. We agree.
“An appeal is not ‘perfected’ until it is docketed in the appellate court, but when
it is docketed, the perfection relates back to the time of notice of appeal, so any
proceedings in the trial court after the notice of appeal are void for lack of
jurisdiction.” Romulus v. Romulus, 216 N.C. App. 28, 33, 715 S.E.2d 889, 892 (2011)
(citation omitted). It is well established:
When an appeal is perfected as provided by this Article it
stays all further proceedings in the court below upon the
judgment appealed from, or upon the matter embraced
therein, unless otherwise provided by the Rules of
Appellate Procedure; but the court below may proceed upon
any other matter included in the action and not affected by
the judgment appealed from.
N.C. Gen. Stat. § 1-294 (2017). There are certain exceptions to this rule:
“Notwithstanding the provisions of G.S. 1-294, an order pertaining to child custody
which has been appealed to the appellate division is enforceable in the trial court by
proceedings for civil contempt during the pendency of the appeal.” N.C. Gen. Stat. §
50-13.3 (2017) (emphasis added).
Subsequent to Defendant’s 16 December 2016 filing of her notice of appeal in
COA17-675, which was perfected, Plaintiff filed a 4 January 2017 “Verified Motion in
the Cause to Terminate Order for Temporary Custody” (the “Verified Motion”) in
- 52 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
which Plaintiff requested termination of the Florida Order “pursuant to Ch.
751.05(6), Florida Statutes.” The trial court heard arguments on the Verified Motion
on 14 March 2017, and then entered the 2017 Order. In the 2017 Order, the trial
court concluded that it “should give Full Faith and Credit to Florida law” and decide
the matter based upon Florida law. The 2017 Order purported to terminate the
Florida Order, and award full legal and physical custody of E.R.Q. to Plaintiff.
Plaintiff makes several unavailing arguments in support of her contention that
the trial court had jurisdiction to enter the 2017 Order even though the Bickett Order
and the Randolph Order were on appeal in COA17-675. Plaintiff argues that the
language in N.C.G.S. § 1-294 that an appeal “stays all further proceedings in the court
below upon the judgment appealed from, or upon the matter embraced therein,” does
not apply in this matter because the issues decided in the 2017 Order were not
“matters embraced” by the Bickett and Randolph Orders. However, in order to reach
its ruling in the 2017 Order, the trial court had to “affirm” its own 17 November 2016
order – the Randolph Order – by implicit rulings that (1) Judge Bickett lacked subject
matter jurisdiction to enter the Bickett Order pursuant to the UCCJEA; (2) it had the
authority and jurisdiction to rule on Plaintiff’s Rule 59 motion; (3) Plaintiff had not
forfeited her constitutionally protected status as a parent; (4) Plaintiff’s conduct had
not served to alter the original nature of the Florida Order; (5) Florida law controlled
the North Carolina trial court’s authority to modify the Florida Order, even after
North Carolina obtained subject matter jurisdiction pursuant to the UCCJEA; (6) a
- 53 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
North Carolina trial court can modify a custody order from another state without any
finding of changed circumstances or a determination of whether modification would
be in the best interest of the child – N.C.G.S. § 50-13.7(b) notwithstanding; and (7)
that Plaintiff’s motion for a new trial should be granted. See Carpenter v. Carpenter,
25 N.C. App. 307, 308-09, 212 S.E.2d 915, 916 (1975) (the purpose of N.C.G.S. § 1–
294 is to prevent the trial court from deciding the very matters that were embraced
in a previous order). Our resolution of the appeal in COA17-675 includes holdings
directly contrary to each of these implied rulings of the trial court in the 2017 Order.
Further, this Court has clearly held that an appeal from an order involving
child custody removes jurisdiction from the trial court to consider any issues related
to custody of the child involved:
We find that the district court lacked the authority to issue
the 31 October 1986 and 3 November 1986 orders, and,
conclude that these orders are null and void for the
following reason.
N.C.G.S. § 1-294 states in part:
When an appeal is perfected as provided by this Article
it stays all further proceedings in the court below upon
the judgment appealed from, or upon the matter
embraced therein; but the court below may proceed
upon any other matter included in the action and not
affected by the judgment appealed from.
It is established that “[v]isitation privileges are but a lesser
degree of custody.” As a result, the 5 March 1986 order,
extending visitation rights, appealed by defendant is
directly related to and will affect the 31 October 1986 and
3 November 1986 orders determining custody, issued by
- 54 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
the trial court. Therefore, N.C.G.S. § 1-294 removed
jurisdiction on the issue of custody from the district court
in the present case.
Furthermore, the Supreme Court in Joyner v. Joyner, 256
N.C. 588, 124 S.E.2d 724 (1962), specifically addressed the
question of who has jurisdiction over a minor child when a
custody matter is pending on appeal. In Joyner, the Court
concluded that “North Carolina cases fit into the general
rule that appeal removes the entire proceeding to the
[appellate] Court and leaves the [lower] court functus
officio until the cause is remanded.”
Consequently, under both statute and case law the district
court lost jurisdiction over all custody matters in the
present case when defendant appealed the 5 March 1986
visitation order.
Hackworth v. Hackworth, 87 N.C. App. 284, 286–87, 360 S.E.2d 472, 472-73 (1987)
(citations omitted);14 see also Rosero v. Blake, 150 N.C. App. 250, 252–54, 563 S.E.2d
248, 250–51 (2002), rev’d on other grounds, 357 N.C. 193, 581 S.E.2d 41 (2003).
Plaintiff argues “[i]t is logical that a ‘matter’ wherein the Court of North
Carolina [sic] has subject matter jurisdiction is a separate ‘matter’ from one in which
North Carolina does not have subject matter jurisdiction.” The issue of subject matter
jurisdiction was one of the central issues on appeal in COA17-675, which is enough
to defeat Plaintiff’s argument. Plaintiff’s argument is further discredited by the fact
that her assumption that this Court would determine that the trial court lacked
14 The adoption of the provision in N.C.G.S. § 50-13.3 to allow a trial court to enforce custody
orders pursuant to its contempt powers did not “overrule” Joyner, as Plaintiff argues. It simply created
a new, specific, and limited right. The general principle acknowledged in Joyner survives, as evidenced
by Hackworth and other opinions citing Joyner for this principle subsequent to adoption of the relevant
provision in N.C.G.S. § 50-13.3.
- 55 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
jurisdiction to enter the Bickett Order in the COA17-675 appeal was not only an
improper assumption to make, but incorrect as well.
Because prior orders involving the custody of E.R.Q. – the Bickett Order and
the Randolph Order – were on appeal in COA17-675, the trial court was without
jurisdiction to hear or decide any issues directly related to E.R.Q.’s custody during
the pendency of the COA17-675 appeal. Carpenter, 25 N.C. App. at 309, 212 S.E.2d
at 916 (citations omitted) (“[P]ending the appeal the trial judge is functus officio.
Therefore, the [trial c]ourt in the present case had no jurisdiction to hear and pass
upon defendant’s motion filed on 19 November 1974 while the appeal of this case was
pending in the Court of Appeals.”). Because the matter of E.R.Q.’s custody was on
appeal when the trial court entered the 2017 Order, that order is void and of no effect.
From the evidence included in the record concerning the 2017 Order, it appears
E.R.Q. was erroneously removed from Defendant on 2 April 2017 by a court without
jurisdiction to do so. This Court now holds that custody of E.R.Q. was never properly
removed from Defendant and, based on our holdings, legal custody of E.R.Q.
continues to reside with Defendant, and physical custody of E.R.Q. must be returned
to Defendant.
IV. Visitation
Of the orders appealed in COA17-675 and COA17-1344, only the Bickett Order
survives – the Randolph Order and the 2017 Order are void and vacated. We note
that though Defendant’s 8 January 2013 responsive pleading to Plaintiff’s initial
- 56 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
motion in the cause – in effect, Defendant’s answer and counterclaims – “prayed” the
trial court order that “Defendant be given permanent custody of [E.R.Q.,]” and grant
Plaintiff “supervised visitation” with E.R.Q., it does not appear from the record that
the counterclaims in Defendant’s responsive pleading have been decided by the trial
court.
Plaintiff and Defendant have thus far handled the issue of visitation in this
matter through temporary consent orders. Plaintiff and Defendant first “agreed on
a temporary modification of child custody pending trial,” and this agreement was
entered as a temporary consent custody order on 1 May 2013. That consent order
provided Plaintiff with certain visitation and other rights to which she had not
previously been legally entitled. Additional consent orders modifying
custody/visitation rights were entered prior to entry of the Bickett Order.
Following entry of the Bickett Order – and Plaintiff’s motion for a new trial –
Plaintiff and Defendant again agreed on a modified visitation schedule, which was
entered as a “Temporary Custody Order” on 7 September 2016. The trial court
entered an order on 13 December 2016 in which it, with the agreement of Plaintiff
and Defendant, modified a visitation provision of the 7 September 2016 temporary
custody order. It further ruled that, “[e]xcept as modified herein, the Temporary
Custody Order filed 09/07/2016 remains in full force and effect, subject to the
contempt powers of the [c]ourt.” Defendant filed her notice of appeal from the
Randolph Order on 16 December 2016, and Plaintiff filed her notice of appeal from
- 57 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
the Bickett Order on 19 December 2016. Therefore, these orders establishing a
visitation schedule were entered before jurisdiction over the matter was removed
from the trial court to this Court by appeal. N.C.G.S. § 1-294.
Though the 2017 Order purported to “supersede[] and vacate all other North
Carolina Orders in this court file[,]” the 2017 Order is void and of no effect. Neither
Plaintiff nor Defendant have challenged the 13 December 2016 consent order on
appeal. Therefore, the visitation provisions included and incorporated into the 13
December 2016 consent order are the last visitation provisions agreed upon by
Plaintiff and Defendant and entered as a temporary consent custody order. Since the
2017 Order is a nullity, the 13 December 2016 consent order remains in effect until
it is modified, vacated, or made permanent by the trial court.
V. Conclusion
Based upon our holdings above, we reach the following dispositions: (1)
Although Plaintiff’s appeal could be dismissed for failure to timely file notice of appeal
from the 16 May 2016 Bickett Order, we grant certiorari sua sponte and address
Plaintiff’s arguments; (2) pursuant to our analyses above, we dismiss or reject
Plaintiff’s arguments on appeal and affirm the 16 May 2016 Bickett Order; (3) we
vacate the 17 November 2016 Randolph Order on two independent grounds – (a.)
Plaintiff’s purported 23 May 2016 Rule 59 motion for a new trial was insufficient to
confer subject matter jurisdiction on the trial court, and (b.) because Judge Bickett
had subject matter jurisdiction when he entered the Bickett Order, Judge Randolph
- 58 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
could not “overrule” the Bickett Order and substitute his own judgment for the prior
judgment of Judge Bickett; (4) the Bickett Order is currently the controlling order in
this matter, and any actions taken by the trial court that conflict with the rulings in
the Bickett Order are rendered void and must be corrected; (5) the appeal in COA17-
675 divested the trial court of jurisdiction to consider Plaintiff’s Verified Motion,
therefore the 2017 Order appealed in COA17-1344 is void and vacated; (6) Pursuant
to the Bickett Order, legal and physical custody of E.R.Q. remains with Defendant as
initially directed by the Florida Order; (7) because physical custody of E.R.Q. was
improperly removed from Defendant, physical custody of E.R.Q. must be returned to
Defendant; (8) the trial court shall use its discretion in weighing Defendant’s right to
immediate physical custody against E.R.Q.’s welfare when determining when and
how to return E.R.Q. to Defendant’s physical custody, but the return of E.R.Q. to
Defendant’s physical custody shall not be unreasonably delayed; (9) because the 2017
Order is void, legal custody of E.R.Q. has remained with Defendant since entry of the
Florida Order, though the effect of entry of the 2017 Order was to deprive Defendant
of the rights attendant to her legal custody of E.R.Q.; therefore, Defendant’s right to
exercise her legal custodial rights shall be immediately restored, with the following
caveat; (10) the trial court may impose temporary restrictions on Defendant’s legal
custodial rights upon a determination that such restrictions are required to prevent
- 59 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
unnecessary stress or hardship for E.R.Q.;15 (11) the visitation orders entered by the
trial court, culminating in the 13 December 2016 order, remain in effect until
modified or vacated by the trial court; (12) the trial court, preferably pursuant to a
consent agreement, shall establish a temporary visitation plan that best serves the
interests of E.R.Q. for the transition period prior to return of physical custody to
Defendant;16 (13) nothing in this opinion should be interpreted as interfering with
the continuing jurisdiction of the trial court over this matter, and the trial court shall
continue to resolve any custody-related issues that may arise, as long as they have
not been finally resolved by this opinion or prior valid orders of the trial court; (14)
the trial court may not revisit certain issues that have become the law of this case
including, but not limited to, the correct law to apply if modification of the Florida
Order is again sought, jurisdictional issues decided in this opinion, and prior rulings
of the trial court that have either not been challenged or that have been upheld on
appeal; and (15) that Plaintiff has lost her constitutionally protected status as a
parent is an issue that has been finally decided and that may not be revisited by the
trial court.
15 By way of example only, and not intended to be binding or limiting on the discretion of the
trial court, the trial court could immediately transfer authority to make certain major decisions
involving E.R.Q. – e.g. major medical decisions, or other decisions likely to significantly impact
E.R.Q.’s physical, mental, or social welfare – to Defendant, but grant Plaintiff temporary authority to
make necessary day-to-day logistical decisions concerning E.R.Q. until transfer of physical custody is
achieved.
16 Of course, as long as the trial court retains jurisdiction, it may revisit custody/visitation
issues concerning E.R.Q. when they are properly before the court.
- 60 -
QUEVEDO-WOOLF V. OVERHOLSER
Opinion of the Court
COA17-675: PLAINTIFF’S APPEAL DISMISSED, 16 MAY 2016 ORDER
AFFIRMED; 17 NOVEMBER 2016 ORDER VACATED; REMANDED. COA17-1344:
26 MARCH 2017 ORDER VACATED; REMANDED.
Judge MURPHY concurs.
Judge BRYANT concurs in result only.
- 61 -