KAREN MOHR,
Plaintiff,
v
.
JOHN MOHR,
Defendant.
East Central Community Legal Services, by Suzanne Chester, for
plaintiff-appellee.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
defendant-appellant.
HUDSON, Judge.
Defendant appeals the denial of his motion seeking costs
pursuant to North Carolina Rule of Civil Procedure 68.
Plaintiff and defendant were married on 28 June 1980. Four
children were born of the marriage. The parties separated in
March, 1999, at which time all four children were minors. After a
hearing, Judge Fred G. Morelock awarded sole custody of the
children to defendant father, while plaintiff was granted
visitation. After the entry of the order, defendant sent one of
the children, Michael, to a boarding school in Ohio.
On 9 June 2000, plaintiff filed a “Motion to Modify Custody,”
in which plaintiff sought sole custody of the minor children.
Plaintiff alleged various difficulties in obtaining access to thechildren and information from defendant about matters including the
medical and psychological treatment of the children, and about when
Michael would be available to visit. On 12 April 2001, defendant
filed and served what he designated an “Offer of Judgment” pursuant
to Rule 68 of the North Carolina Rules of Civil Procedure. The
purported offer proposed the following:
That the basic schedule of physical custody as
established by the Honorable Fred [G.]
Morelock in his January 14, 2000 order nunc
pro tunc to June 21, 1999 remain in effect.
Plaintiff did not accept defendant's proposal and proceeded to
hearing on her Motion to Modify Custody.
At the close of plaintiff's evidence, Judge Alice Stubbs
granted defendant's Rule 41(b) motion to dismiss plaintiff's Motion
to Modify Custody. At the same time, however, the judge made
several modifications to the 14 January 2000 order nunc pro tunc to
21 June 1999. Specifically, she granted joint legal custody to the
parties and modified the visitation schedule by granting plaintiff
three additional weeks of visitation per year, and by enlarging
plaintiff's Wednesday night visitation from two to three hours.
She ordered defendant to confer and consult with plaintiff prior to
making final decisions concerning the education and medical well-
being of the minor children, granted plaintiff equal and complete
access to all medical and educational records relating to the minor
children, and ordered defendant to provide plaintiff's name to the
minor children's schools as a person authorized to pick up the
children up in case of emergency. The order also provided that
Michael shall return to North Carolina in July 2001. On 31 August 2001, defendant filed a Motion to Tax Costs based
upon plaintiff's failure to accept his “Offer of Judgment,”
contending that “[t]he result achieved by the plaintiff at trial
was not more favorable than that made by the defendant in his offer
of judgment . . . .” On 2 October 2001, the court denied
defendant's Motion to Tax Costs, finding that “as a matter of law
. . . Rule 68 of the North Carolina Rules of Civil Procedure is
inconsistent with the statutory structure of Chapter 50, that the
application of Rule 68 to domestic actions violate[s] North
Carolina public policy and discourage[s] the filing of otherwise
meritorious motions and complaints under Chapter 50, and thus that
Rule 68 is inapplicable to custody proceedings brought under
Chapter 50 of the North Carolina General Statutes.” The order
further noted that “even in the event Rule 68 . . . were to apply
to proceedings brought under Chapter 50, that the plaintiff's
motion to modify custody . . . was brought in good faith, and that
the court did make modifications in the court's previous custody
order . . . .”
Defendant first assigns as error the trial court's denial of
his motion to tax costs. Defendant argues that the trial court's
holding that Rule 68 does not apply to proceedings under Chapter 50
was erroneous as a matter of law because nothing in either Rule 68
or Chapter 50 precludes such application.
Since the question of whether Rule 68 applies to a Chapter 50
custody action is a question of law, we apply a de novo standard of
review. See Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc.,265 F.3d 638 (7th Cir. 2001); Cf. Brewer v. Harris, 10 N.C. App.
515, 179 S.E.2d 160 (1971), affirmed, 279 N.C. 288, 182 S.E.2d 345
(1971) (because federal rules are the source of the North Carolina
Rules of Civil Procedure, we look to the decisions of federal
jurisdictions for guidance). For the reasons explained below, we
affirm the trial court's ruling.
The pertinent provision of Rule 68 reads as follows:
At any time more than 10 days before the trial
begins, a party defending against a claim may
serve upon the adverse party an offer to allow
judgment to be taken against him for the money
or property or to the effect specified in his
offer, with costs then accrued. If within 10
days after the service of the offer the
adverse party serves written notice that the
offer is accepted, either party may then file
the offer and notice of acceptance together
with proof of service thereof and thereupon
the clerk shall enter judgment. An offer not
accepted within 10 days after its service
shall be deemed withdrawn and evidence of the
offer is not admissible except in a proceeding
to determine costs. If the judgment finally
obtained by the offeree is not more favorable
than the offer, the offeree must pay the costs
incurred after the making of the offer.
N.C. R. Civ. P. 68 (2001).
As this is a case of first impression in North Carolina, we
have expanded our research to determine how other jurisdictions
have approached this issue. Although we would look to federal
decisions, the federal courts do not hear domestic relations
actions under the domestic relations exception to federal diversity
jurisdiction. See Ankenbrandt v. Richards, 504 U.S. 689, 119
L.Ed.2d 468 (1992); see, also, McLaughlin v. Cotner, 193 F.3d 410
(6th Cir. 1999), cert denied, 529 U.S. 1008, 146 L.Ed.2d 226(2000). However, a review of other state jurisdictions shows a
clear trend to hold offers of judgment inapplicable in the context
of domestic relations. See Leeming v. Leeming, 490 P.2d 342, 344
(Nev. 1971) (holding that Nevada's version of Rule 68, nearly
identical to North Carolina's Rule 68, is “inapplicable to divorce
proceedings” because they “involve entirely different social
considerations than other civil actions,” and that “[t]o hold
[Rule] 68 applicable to divorce matters would be incompatible with
the pattern and policy of our law . . . .”); In re Marriage of
Marshall, 781 P.2d 177, 181 (Colo. 1989), cert. denied, 794 P.2d
1011 (Colo. 1990) (holding in a divorce action very similar to the
case here that Rule 68 did not apply to “an action that does not
seek money judgment at law.”); Fla. Stat. ch. 45.061(4) (2002)
(specifically providing that Florida's version of Rule 68 “shall
not apply . . . to matters relating to dissolution of marriage,
alimony, nonsupport . . . or child custody.”); Mass. R. Dom. Rel.
P. 68 official commentary (2002) (in deleting Rule 68 from its Rule
of Domestic Relations Procedure, the Massachusetts legislature
provided that the rule “has been deleted as inappropriate to
Domestic Relations practice.”); But see, Criss v. Kunisada, 968
P.2d 184 (Haw. Ct. App. 1998), cert. denied, 953 P.2d 1362 (Haw.
1998) (applying family court version of Rule 68 in a custody
action). While we are not asked to decide if Rule 68 applies in
any domestic matter, we do conclude that Rule 68 offers of judgment
are inconsistent with our framework for determining child custody
under Chapter 50. See N.C. Gen. Stat. § 50-13.1 (2001); N.C. Gen.Stat. § 50-11.2 (2001).
Under G.S. . 50-11.2, the trial court has continuing
jurisdiction in child custody disputes. N.C. Gen. Stat. § 50-11.2
(2001). The court may modify the custody award at any time upon a
showing of a substantial change of circumstances, affecting the
welfare of the child. Id.; N.C. Gen. Stat. § 50-13.7 (2001). The
standard upon which the court initially determines with whom
custody should lie is the best interests of the child. N.C. Gen.
Stat. § 50-13.2 (2001). A Rule 68 offer of judgment in a child
custody action would allow a party to circumvent the court's
statutory authority and responsibility to determine custody in the
best interests of the child. Rule 68 provides that upon the
acceptance of an offer of judgment, “either party may then file the
offer and notice of acceptance together with proof of service
thereof and thereupon the clerk shall enter judgment.” N.C. R.
Civ. P. 68 (2001) (emphasis added). We do not believe that this
rule, which allows the clerk to enter judgment, is consistent with
the statutory scheme within which the court assigns custody based
upon the best interests of the child, and may modify it upon a
substantial change in circumstances.
While we acknowledge that public policy favors encouraging the
parties to settle domestic actions like other civil actions,
Bromhal v. Stott, 341 N.C. 702, 462 S.E.2d 219 (1995), reh'g
denied, 342 N.C. 418, 465 S.E.2d 536 (1995), we do not believe that
the settlement process triggered by a Rule 68 offer of judgment is
consistent with the court's authority to determine and modifycustody. Prior decisions indicate that such authority is ongoing
in a custody matter even though the parties settle, whether by a
private settlement agreement or through mediation under G.S. § 50-
13.1. G.S. . 50-13.1 provides for mediation of custody disputes
and mandates that any mediated settlement agreement reached “shall
be . . . submitted to the court as soon as practicable,” and
“[u]nless the court finds good reason not to, it shall incorporate
the agreement in a court order and it shall become enforceable as
a court order.” N.C. Gen. Stat. § 50-13.1 (g) (2001).
Further, while it is clear that a husband and wife may bind
themselves by a separation agreement, it is equally clear that “no
agreement or contract between husband and wife will serve to
deprive the courts of their inherent as well as their statutory
authority to protect the interests and provide for the welfare of
infants.” Baker v. Showalter, 151 N.C. App. 546, ___, 566 S.E.2d
172, 175 (2002) (quoting Fuchs v. Fuchs, 260 N.C. 635, 639, 133
S.E.2d 487, 491 (1963)). Such separation agreements “are not final
and binding as to the custody of minor children or as to the amount
to be provided for the support and education of such minor
children.” Hinkle v. Hinkle, 266 N.C. 189, 195, 146 S.E.2d 73, 77
(1966). This is so because “[t]he welfare of the child is the
'polar star' which guides the court's discretion in custody
determinations.” Evans v. Evans, 138 N.C. App. 135, 141, 530
S.E.2d 576, 580 (2000). Here, we conclude that the trial court
properly determined that Rule 68 does not apply to this motion to
modify custody, to preserve the court's “inherent as well asstatutory authority” to protect the best interests of the children.
Therefore we affirm the trial court's ruling.
In light of the foregoing, we decline to address the
defendant's remaining assignments of error.
Affirmed.
Judges TIMMONS-GOODSON and CAMPBELL concur.
*** Converted from WordPerfect ***