Booker v. Strege ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-698
Filed: 7 November 2017
Buncombe County, No. 14 CVD 5143
DANA BOOKER, Plaintiff,
v.
RYAN STREGE, Defendant.
Appeal by defendant from orders entered 24 November 2015 and 8 February
2016 by Judge Susan Dotson-Smith in District Court, Buncombe County. Heard in
the Court of Appeals 23 February 2017.
The Tanner Law Firm, PLLC, by James E. Tanner III, for plaintiff-appellee.
Emily Sutton Dezio, for defendant-appellant.
STROUD, Judge.
The trial court properly exercised subject matter jurisdiction under the
UCCJEA and its findings of fact support the conclusion of a substantial change of
circumstances affecting the welfare of the children so modification of the prior custody
order was appropriate. We therefore affirm.
I. Background
On 5 April 2011, plaintiff-mother and defendant-father entered into a
“CONSENT JUDGMENT FOR CUSTODY AND PARENTING TIME” in Michigan
agreeing to joint legal custody of their two children with the “children’s legal
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Opinion of the Court
residence” being with their mother and their home state designated as Michigan. On
29 October 2013, another consent order was entered in Michigan allowing plaintiff
and the children to move to North Carolina. The court in Michigan noted it “will
retain continuing exclusive jurisdiction over this action” and “neither party will file
to move or change jurisdiction from the Wayne County Circuit Court for all issues of
custody and parenting time for at least five (5) years from the date of entry of this
Order.” On 1 December 2014, the parties signed one final consent order in Michigan
primarily regarding parenting time and the court determined the order “resolves all
claims between the parties, and closes the case.”
Also on 1 December 2014, plaintiff filed a “PETITION FOR REGISTRATION
OF FOREIGN CHILD CUSTODY ORDER” in North Carolina to register the
Michigan orders; defendant’s address was noted as South Dakota. On or about 3
February 2015, defendant filed an objection to the petition “on the basis that there is
an active case in Michigan[.]” On 2 March 2015, the trial court “registered and
confirmed” all three of the Michigan orders.
On 4 March 2015, plaintiff then filed a “MOTION TO DETERMINE THE
RESIDENCES OF THE PARTIES FOR PURPOSES OF JURISDICTION” and
thereafter a motion to enforce the registered Michigan orders. On 5 June 2015,
defendant responded to plaintiff’s motion to enforce with a motion to dismiss because
North Carolina did not have personal jurisdiction over him. On 19 June 2015,
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plaintiff responded to defendant’s motion to dismiss requesting it be denied due to
waiver because of defendant’s February 2015 written objection filed with the court
and defendant’s attorney’s six court appearances on his behalf. Defendant had not
raised a defense of a lack of personal jurisdiction in his objection or at the court
appearances. On 26 June 2015, the court ultimately denied defendant’s motion to
dismiss based on lack of personal jurisdiction but concluded as a matter of law it did
not have subject matter jurisdiction and dismissed Plaintiff’s Motion to Enforce the
registered judgment because the motion did not present “an issue ripe for the Court
to intervene[.]”
On 21 July 2015, defendant moved for modification of custody, requesting that
the children be primarily placed with him in South Dakota, and for contempt because
plaintiff had not allowed him his full summer visitation. On 24 November 2015, the
court entered an interim child custody order concluding that North Carolina was the
home state; there had been “a substantial change in circumstances affecting the
welfare of the minor children” so it was appropriate to modify the last Michigan order;
and it was in the best interest of the children for the parties to share legal custody
with plaintiff having primary physical custody. On 8 February 2016, the court
entered a custody order determining that North Carolina was the home state; there
had been “a substantial change in circumstances affecting the welfare of the minor
children” so it was appropriate to modify the last Michigan order; and it was in the
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best interest of the children for the parties to share legal custody with plaintiff having
primary physical custody. Defendant appeals both the 24 November 2015 interim
order and the 8 February 2016 custody order.
II. Subject Matter Jurisdiction
Defendant first makes two arguments on appeal contending that North
Carolina did not have subject matter jurisdiction to enter two custody orders. Oddly,
it was defendant who filed for modification of custody in North Carolina; nonetheless,
a party cannot confer subject matter jurisdiction on a court merely by requesting
relief in it. See In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (“Subject
matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel,
and therefore failure to object to the jurisdiction is immaterial. Because litigants
cannot consent to jurisdiction not authorized by law, they may challenge jurisdiction
over the subject matter at any stage of the proceedings, even after judgment.”
(citations, quotation marks, brackets, and ellipses omitted)).
Whether a trial court has subject-matter jurisdiction is a
question of law, reviewed de novo on appeal. Subject-
matter jurisdiction involves the authority of a court to
adjudicate the type of controversy presented by the action
before it. Subject-matter jurisdiction derives from the law
that organizes a court and cannot be conferred on a court
by action of the parties or assumed by a court except as
provided by that law.
McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (citations and
quotation marks omitted).
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A. 26 June 2015 Order
Defendant first contends that because the trial court dismissed plaintiff’s
motion to enforce in its 26 June 2015 order due to the court lacking subject matter
jurisdiction, the court could not later exercise subject matter jurisdiction.
Defendant’s argument is entirely misplaced because the 26 June 2015 order did not
determine that the court lacked subject matter jurisdiction over the entire case but
rather that the court lacked subject matter jurisdiction over only the matters in the
motion because the particular matter was not ripe. See generally Black’s Law
Dictionary 10th ed. (2014) (defining ripeness as “1. The state of a dispute that has
reached, but has not passed, the point when the facts have developed sufficiently to
permit an intelligent and useful decision to be made. 2. The requirement that this
state must exist before a court will decide a controversy”). That the court chose the
term ripe actually indicates that it believed it would in the future have subject matter
jurisdiction over the issue in the motion, enforcing the Michigan orders. Regardless,
the trial court’s initial denial of enforcement of the Michigan orders did not speak to
the trial court’s broader subject matter jurisdiction over the entire case, so this
argument fails.
B. Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)
Defendant next contends that under the UCCJEA “a court of this State may
not modify a child-custody determination made by a court of another state unless a
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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)[.]” Defendant then notes that North Carolina General
Statute § 50A-201 provides that a court can only exercise jurisdiction depending on
the determination of the “home state” of the children. See N.C. Gen. Stat. § 50A-201
(2015). For North Carolina to be the home state, the children would have needed to
live here with their mother “for at least six consecutive months immediately before
the commencement of a child-custody proceeding.” N.C. Gen. Stat. § 50A-102 (2015).
“Commencement means the filing of the first pleading in a proceeding.” Id. (quotation
marks omitted). Defendant contends that the first pleading was filed on 1 December
2014 when plaintiff filed her motion to register the child custody orders from
Michigan and because at that time the children had only resided in North Carolina
since 12 August 2014, for approximately three months, they had not resided here long
enough for North Carolina to be the home state and ultimately exercise jurisdiction.
But defendant’s view of when the proceeding commenced is in error. North
Carolina General Statute § 50A-102(4) defines “child custody proceeding” as
a proceeding in which legal custody, physical custody, or
visitation with respect to a child is an issue. The term
includes a proceeding for divorce, separation, neglect,
abuse, dependency, guardianship, paternity, termination
of parental rights, and protection from domestic violence in
which the issue may appear. The term does not include a
proceeding involving juvenile delinquency, contractual
emancipation, or enforcement under Part 3 of this Article.
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Id. (emphasis added). Plaintiff’s motion to register the Michigan orders did not raise
the issues of “legal custody, physical custody, or visitation[.]” Id. Her request was
simply to register the Michigan orders in North Carolina so they could be enforced,
in accordance with North Carolina General Statute § 50A-305. See id. North
Carolina General Statute § 50A-102(4) specifically excludes a proceeding for
enforcement under Part 3 of Article 2; North Carolina General Statute § 50A-305 is
found in Part 3 of Article 2. See generally Chap. 50A et. seq. The first pleading
regarding custody and visitation issues was filed by father on 21 July 2015,
approximately 11 months after even defendant’s alleged date the children began
residing in this state. Because North Carolina followed the mandates of the UCCJEA
it properly exercised subject matter jurisdiction, and this argument is overruled.1
III. Substantial Change of Circumstances
Lastly, defendant contends that the trial court erred in determining there had
been a substantial change of circumstances so it was appropriate to modify custody.
Again, we note defendant himself filed for the modification of custody which alleged
facts he deemed to be substantial changes justifying modification of custody.
1 We note there is some issue on appeal regarding whether we may consider the addendum to
the record which includes an order from the court in Michigan determining Michigan no longer has
subject matter jurisdiction and an email from the district court judge presiding over this case in North
Carolina, noting that she, the judge in Michigan, and a judge in South Dakota had all spoken and
determined North Carolina was the appropriate state to exercise jurisdiction. We need not resolve
whether the addendum should be considered by this Court as we have already determined North
Carolina is the appropriate jurisdiction for this case; however, we wanted to note that no arguments
have been made that any other state would have jurisdiction over this case.
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Defendant’s motion acknowledged the prior Michigan order which had anticipated
plaintiff’s move to North Carolina and had even addressed where the children would
attend school when they reached kindergarten age. In fact, the Michigan order
entered in October 2013 set out a specific parenting schedule after the children
reached school age, to be based upon the public school schedule in the county where
the children resided at that time; it also addressed travel for visitation, including the
option of air travel when the children are older.
Defendant’s motion for modification was based upon several allegations of
changes in circumstances, all negative for plaintiff, and positive for himself.
Specifically, defendant alleged that plaintiff had violated various provisions of the
Michigan custody orders and interfered with his parenting time and communication
with the children; that plaintiff’s behavior was “more erratic and unstable” such that
she was unable to care for the children on her own; that plaintiff’s living situation
was “unsettled” including because she once told him she was considering moving to
Wilmington but then decided to stay in Asheville; that plaintiff had no family support
in Asheville since her mother lives in Michigan; and that plaintiff is more concerned
with her career than with the children and has them spend too much time in the care
of a babysitter. Defendant also alleged other “changes” which are actually
circumstances that clearly existed, according to his own allegations, prior to the entry
of the Michigan orders, such as that plaintiff has “a violent, flash temper and mood
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swings which has been documented by her assault on defendant when she was
pregnant[.]” Defendant further alleged that the parties had been unable to agree on
where the children should attend kindergarten, despite the prior Michigan consent
orders, which provided that they would attend school in North Carolina; defendant
stated he could no longer agree to the provisions of the Michigan orders due to the
negative changes he alleged regarding plaintiff and her living situation.
We note that defendant does not challenge the ultimate custody provisions
determining that plaintiff would have primary physical custody but only contends
there was not a substantial change in circumstances justifying the modification.
Shipman v. Shipman explains,
It is well established in this jurisdiction that a trial
court may order a modification of an existing child custody
order between two natural parents if the party moving for
modification shows that a substantial change of
circumstances affecting the welfare of the child warrants a
change in custody. The party seeking to modify a custody
order need not allege that the change in circumstances had
an adverse effect on the child. While allegations
concerning adversity are acceptable factors for the trial
court to consider and will support modification, a showing
of a change in circumstances that is, or is likely to be,
beneficial to the child may also warrant a change in
custody.
....
The trial court’s examination of whether to modify
an existing child custody order is twofold. The trial court
must determine whether there was a change in
circumstances and then must examine whether such a
change affected the minor child. If the trial court concludes
either that a substantial change has not occurred or that a
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substantial change did occur but that it did not affect the
minor child’s welfare, the court’s examination ends, and no
modification can be ordered. . . .
When reviewing a trial court’s decision to grant or
deny a motion for the modification of an existing child
custody order, the appellate courts must examine the trial
court’s findings of fact to determine whether they are
supported by substantial evidence. Substantial evidence is
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Our trial courts are vested with broad discretion in
child custody matters. This discretion is based upon the
trial courts’ opportunity to see the parties; to hear the
witnesses; and to detect tenors, tones, and flavors that are
lost in the bare printed record read months later by
appellate judges[.] Accordingly, should we conclude that
there is substantial evidence in the record to support the
trial court's findings of fact, such findings are conclusive on
appeal, even if record evidence might sustain findings to
the contrary.
In addition to evaluating whether a trial court’s
findings of fact are supported by substantial evidence, this
Court must determine if the trial court’s factual findings
support its conclusions of law. With regard to the trial
court’s conclusions of law, our case law indicates that the
trial court must determine whether there has been a
substantial change in circumstances and whether that
change affected the minor child. Upon concluding that such
a change affects the child’s welfare, the trial court must
then decide whether a modification of custody was in the
child’s best interests. If we determine that the trial court
has properly concluded that the facts show that a
substantial change of circumstances has affected the
welfare of the minor child and that modification was in the
child’s best interests, we will defer to the trial court’s
judgment and not disturb its decision to modify an existing
custody agreement.
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357 N.C. 471, 473–75, 586 S.E.2d 250, 253–54 (2003) (citations and quotation marks
omitted).
We need not delve far into the findings of fact to conclude there was a
substantial change of circumstances affecting the children’s welfare. In a well-
organized, detailed, and comprehensive order, the trial court addressed defendant’s
allegations regarding plaintiff’s instability and inability to care for the children, and
ultimately rejected them. The order also addressed the alleged changes, both positive
and negative, for both parties since entry of the last Michigan order. We will not
address all of the findings of fact, but we will address one of the most important issues
which led to the motions filed by both parties: the dispute over where the children
would attend kindergarten. The trial court made the following findings which are
not challenged on appeal:
31. The previous Order of the Michigan Court mandated
that the minor children would begin kindergarten in
the State of North Carolina.
32. The minor children were scheduled to begin
kindergarten in August of 2015 at William W. Estes
Elementary School.
33. The Defendant enrolled the minor children in
kindergarten in the State of South Dakota and the
Plaintiff enrolled the minor children in kindergarten
in the State of North Carolina.
34. The Plaintiff did not consent to the Defendant
enrolling the minor children in kindergarten in the
State of South Dakota, nor was she notified by the
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Defendant.
....
36. The parties have shared visitation with the minor
children in accordance with the three (3) prior Court
Orders from the State of Michigan. However, both
parties have had difficulty interpreting the
visitation schedules as set forth in the former Orders
of the Michigan Court.
37. The parties were in conflict regarding the
interpretation of the visitation schedule for the
month of August 2015. Plaintiff interpreted the
previous Order to require the Defendant to return
the children to the State of North Carolina to begin
kindergarten on the Saturday two weeks-prior to the
day the minor children were to begin kindergarten.
That day was August 8, 2015.
38. The Defendant claims that he interpreted the
previous Order to allow him the entire month of
August 2015 as his visitation time with the children.
39. The Defendant did not return the children on
August 8, 2015, rather, returned the minor children
to the State of North Carolina on or about August
14, 2015.
Defendant does challenge finding of fact 35 which finds that duel enrolling the
children in school “is a substantial change of circumstances affecting the minor
children.” Defendant argues “[t]here is an absence of any evidence on how the father’s
enrollment of the children in school where he resided . . . impacted the children in
any way.” Defendant seems to forget that the Michigan court order had already
decreed that the children were to be enrolled in North Carolina, and that his own
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motion to modify was prompted by the kindergarten enrollment and alleges various
violations of the same order by plaintiff as negative changes which impacted the
children. It is clear from the next sentence in finding of fact 35 how the children were
negatively impacted by the duel enrollments as the trial court found “[i]t is no longer
appropriate for these two parents to share the education decision of where the
children shall be enrolled.” In other words, defendant’s disregard for the prior
Michigan order and trying to unilaterally move the children to South Dakota and his
inability to work with plaintiff to resolve their school disagreement without extensive
litigation indicated to the trial court that the parties cannot, for whatever reason,
work together for the benefit of the children. The negative impact on the children is
not from whether they attend this school or that school; the impact is from their
parents’ fighting with one another over important decisions all parents must make
for their children. Parental conflict is not good for children. The trial court is not
required to wait until the children have been damaged enough to receive a formal
diagnosis of some mental or emotional disorder to intervene.
The trial court also addressed defendant’s allegations of various violations of
the orders by plaintiff and essentially rejected them. Although the 2013 Michigan
order had set out a parenting schedule in anticipation of the children starting school,
the conflict that developed between the parents since 2013, exacerbated by
defendant’s unilateral enrollment of the children in school in South Dakota,
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supported the trial court’s finding of a substantial change of circumstances requiring
a modification of the custodial schedule in the hope of avoiding further parental
conflict. As the actual specifics of the changes in the custodial schedule are not at
issue on appeal, we need not review them. This argument is overruled.
IV. Conclusion
We conclude that North Carolina properly exercised subject matter jurisdiction
and the trial court properly found a substantial change in circumstances affecting the
minor children so modification of the prior custody order was in the best interest of
the children; therefore, we affirm.
AFFIRMED.
Judges DILLON and MURPHY concur.
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