Poole v Cogdell, (02-1148) 05/18/2004

Appeal by defendant from order dated 26 April 2002 by Judge Monica M. Bousman in District Court, Wake County. Heard in the Court of Appeals 22 May 2003.

Smith Debnam Narron Wyche Story & Myers, L.L.P., by John W. Narron and Cynthia V. McAlister, for plaintiff-appellee.

Atkins & Stephenson, P.A., by Elizabeth A. Stephenson, for defendant-appellant.

    McGEE, Judge.

    Jason M. Poole (plaintiff) and Myra J. Cogdell (defendant) are the parents of a daughter (the minor child), born 19 July 1996. Plaintiff and defendant were never married to each other. Defendant filed a complaint for paternity, child support, and previously paid public assistance in regard to the minor child on 29 September 1997. Plaintiff executed several documents dealing with paternity on 5 February 1998, including an acknowledgment of paternity and an agreement to establish child support. The trial court entered a consent order on 23 February 1998 setting plaintiff's monthly child support amount.    Plaintiff filed a complaint on 14 July 1999 for custody and child support and for a temporary restraining order. The trial court entered temporary restraining orders on 14 July and 27 July 1999, prohibiting the removal of the minor child from Wake County. The trial court entered a consent order on 16 November 1999 finding both parents fit and proper persons to have custody of the minor child and awarding joint custody of the minor child to both parents, with the minor child spending alternate one-week periods with each parent. This consent order also terminated the duty of plaintiff to pay child support to defendant; however, plaintiff agreed to pay twenty-five dollars per week toward daycare for the minor child during the weeks the minor child was with defendant.
    Defendant married and had a daughter by that marriage in June 2000. Defendant filed a motion on 31 July 2000 to modify custody of the minor child in the present case. Following the parties' participation in court-ordered custody mediation, the trial court entered an order approving a parenting agreement between the parties on 28 September 2000. Pursuant to this parenting agreement, at plaintiff's option, the minor child would spend every Wednesday night and every weekend with plaintiff.
    Defendant informed plaintiff in October 2000 that she intended to move with the minor child from Wake County to Woodstock, Virginia because her husband had obtained employment there. Plaintiff filed a motion to modify custody and for a temporary restraining order on 2 November 2000. The trial court entered a temporary restraining order on 28 November 2000, prohibiting theminor child's removal from Wake County. Plaintiff dismissed his motion to modify custody on 13 December 2000. Defendant moved to Woodstock, Virginia with the minor child and filed a motion to modify custody on 21 December 2000, which prompted plaintiff to file a motion to show cause on 2 January 2001. The trial court found defendant was not in contempt and defendant dismissed her motion to modify custody.
    Plaintiff filed a motion to modify custody and for temporary primary custody dated 26 January 2001. The trial court entered a consent order providing for joint temporary custody of the minor child. Plaintiff filed a motion to modify custody based on changed circumstances on 7 February 2001, alleging defendant had moved out of state and had taken the minor child with her. Defendant filed a response on 9 April 2001 seeking sole custody, child support, and attorney's fees.
    The parties entered into a binding arbitration agreement on 19 June 2001 pursuant to "North Carolina General Statute Section 50-41 et. seq." The terms of the agreement allowed the arbitration agreement and award to be entered as a consent order by the trial court. An arbitration hearing was held on 18 July 2001 and 20 July 2001. An arbitration decision and award was issued on 30 July 2001, awarding primary custody of the minor child to plaintiff with defendant being awarded secondary custody and visitation rights. The trial court entered the arbitration decision and award as a consent order on 14 August 2001.
    Defendant filed on 26 September 2001 a motion (1) to set asidethe arbitration decision and award pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(6), (2) to vacate pursuant to N.C. Gen. Stat. § 50-54, in the alternative to modify the arbitration decision and award pursuant to N.C. Gen. Stat. §§ 50-56 and 50-13.7, and award attorney's fees pursuant to N.C. Gen. Stat. § 50-13.6. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 11, plaintiff filed a motion on 4 October 2001 in response to defendant's Rule 60 motion. Following a hearing, the trial court denied defendant's Rule 60 motion in an order dated 26 April 2002. Defendant appeals.

    Defendant first argues the trial court erred in asserting jurisdiction over this case and in denying defendant's Rule 60 motion because the North Carolina Family Law Arbitration Act (FLAA) does not apply to persons who have never been married. Rule 60(b) of the North Carolina Rules of Civil Procedure provides relief from judgments as follows:
            (b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc._On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

            (1)    Mistake, inadvertence, surprise, or excusable neglect;
            (2)    Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
            (3)    Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
            (4)    The judgment is void;
            (5)    The judgment has been satisfied,released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
            (6)    Any other reason justifying relief from the operation of the judgment.

N.C. Gen. Stat. § 1A-1, Rule 60(b) (2001 ).
    In this case, defendant specifically made her motion pursuant to subsection (b)(6). Our Court has stated that
            Rule 60(b)(6) cannot be the basis for a motion to set aside judgment if the facts supporting it are facts which more appropriately would support one of the five preceding clauses. We have repeatedly held that a movant may not be allowed to circumvent the requirements for clauses (b)(1) through (b)(5) by "designating their motion as one made under Rule 60(b)(6), which grants relief from a judgment or order for 'any other reason justifying relief from the operation of the judgment.'"

Bruton v. Sea Captain Properties, 96 N.C. App. 485, 488, 386 S.E.2d 58, 59-60 (1989) (quoting Akzona, Inc. v. Am. Credit Indem. Co., 71 N.C. App. 498, 505, 322 S.E.2d 623, 629 (1984) (quoting N.C.G.S. § 1A-1, Rule 60(b)(2001)). In Akzona, the defendants made their motion pursuant to Rule 60(b)(6) even though the motion was "expressly based on newly discovered evidence." Akzona, 71 N.C. App. at 505, 322 S.E.2d at 629. This Court refused to allow the defendants "to circumvent the definitional requirements for new evidence under Rule 60(b)(2) by designating their motion as one made under Rule 60(b)(6)[.]" Id. Accordingly, this Court held that the motion "was not properly brought under Rule 60(b)(6), and defendants' discussion of Rule 60(b)(6) is inapposite." Id. Seealso Bruton, 96 N.C. App. at 488, 386 S.E.2d at 59-60 (Appellants made a "totality of the circumstances" argument under Rule 60(b)(6), but this Court held that relief, if at all warranted, would be under Rule 60(b)(1) and not under Rule 60(b)(6). ).
    In the case before us, defendant argues that the trial court lacked jurisdiction. "[W]hen the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered[,]" a judgment is void. Burton v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d 381, 382 (1992). As set forth above, Rule 60(b)(4) specifically provides relief from judgments that are void. Accordingly, subsection (b)(4) was the provision under which defendant should have challenged the trial court's jurisdiction, not Rule 60(b)(6).
    We recognize that "a court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking." Reece v. Forga, 138 N.C. App. 703, 704, 531 S.E.2d 881, 882, disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000). Further, we are cognizant of the fact that "'[t]he question of subject matter jurisdiction may be raised at any time[.]'" Wood v. Guilford Cty., 355 N.C. 161, 164, 558 S.E.2d 490, 493 (2002) (quoting Lemmerman v. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986)). However, the case before our Court does not present the issue of whether this Court needs to address subject matter jurisdiction on its own initiative, nor is there controversy about the timeliness of defendant's subject matter jurisdiction challenge. However, asexplained above, defendant has improperly utilized Rule 60(b)(6), rather than Rule 60(b)(4), as a basis for that challenge. Thus, defendant's motion is misguided.
    Pursuant to defendant's Rule 60 motion, she also argued in the alternative for relief under the FLAA. Although defendant argued on the one hand that the FLAA did not apply to her situation, she simultaneously argued for alternative relief under that very act. Specifically, defendant requested that the trial court vacate the arbitration award pursuant to N.C. Gen. Stat. § 50-54 or modify the award pursuant to N.C. Gen. Stat. §§ 50-56 and 50-13.7. Although this argument is inherently inconsistent, we nonetheless review it and, for the reasons stated below, find it to be without merit.
     We note that, as plaintiff pointed out in a memorandum of additional authority filed pursuant to N.C.R. App. P. 28(g), the
        "purpose of arbitration is to settle matters in controversy and avoid litigation. It is well established that parties to an arbitration will not generally be heard to impeach the regularity or fairness of the award. Exceptions are limited to such situations as those involving fraud, misconduct, bias, exceeding of powers and clear illegality. Ordinarily, an award is not vitiated or rendered subject to impeachment because of a mistake or error of the arbitrators as to the law or facts. The general rule is that errors of law or fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made."

Semon v. Semon, ___ N.C. App. ___, ___, 587 S.E.2d 460, 463 (2003) (quoting Fashion Exhibitors v. Gunter, 41 N.C. App. 407, 410-11, 255 S.E.2d 414, 417-18 (1979) (internal citations omitted)).     The first provision of the FLAA that defendant cites for alternative relief, N.C. Gen. Stat. § 50-54, allows an arbitration award to be vacated for the following reasons:
        (1)    The award was procured by corruption, fraud, or other undue means;

        (2)    There was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing the rights of a party;

        (3)    The arbitrators exceeded their powers;

        (4)    The arbitrators refused to postpone the hearing upon a showing of sufficient cause for the postponement, refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to the provisions of G.S. 50-47;

        (5)    There was no arbitration agreement, the issue was not adversely determined in proceedings under G.S. 50-43, and the party did not participate in the arbitration hearing without raising the objection. The fact that the relief awarded either could not or would not be granted by a court is not a ground for vacating or refusing to confirm the award;

        (6)    The court determines that the award for child support or child custody is not in the best interest of the child. The burden of proof at a hearing under this subdivision is on the party seeking to vacate the arbitrator's award;

        (7)    The award included punitive damages, and the court determines that the award for punitive damages is clearly erroneous; or

        (8)    If the parties contract in an arbitration agreement for judicial review of errors of law in the award, the court shall vacate the award if the arbitrators have committed an error of law prejudicing aparty's rights.

N.C. Gen. Stat. § 50-54(a) (2001 ). After a careful review of defendant's motion in this case, we determine that defendant failed to allege or establish any of the specific grounds for vacating an award under this provision.
    Defendant also cites N.C. Gen. Stat. § 50-56 of the FLAA whereby the applicable provision allows for modification of a child custody award "if a court order for . . . child custody could be modified pursuant to G.S. 50-13.7." N.C. Gen. Stat. § 50-56(c) (2001 ). N.C. Gen. Stat. 50-13.7 allows modification based on a "showing of changed circumstances[.]" N.C. Gen. Stat. § 50-13.7(a) (2001 ). "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." Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, 253 (2003) (quoting Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998) (quoting Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974)). Further, "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." Shipman, 357 N.C. at 474, 586 S.E.2d at 253. In the present case, the trial court stated in its order that the only issue before the trial court was the Rule 60 motion and that it wasdetermining that issue alone. Thus, the trial court's order did not include a determination of defendant's motion to modify based upon an alleged substantial change of circumstances.

II.

    Defendant also assigns as error the trial court's finding that if the effect of the FLAA is to prohibit unmarried parents and their children from having their custody cases decided by arbitration pursuant to the FLAA, then the FLAA violates the Equal Protection Clause of the United States and North Carolina Constitutions. However, we note from the record before this Court that the issue of the constitutionality of the FLAA was never alleged or discussed in either of the parties' pleadings or motions, nor was the issue presented to the trial court. The record does not reveal that the parties ever asserted the constitutional issue at trial or at the hearing on the Rule 60 motion. Our Supreme Court has recently stated that "[t]o be properly addressed, a constitutional issue must be 'definitely drawn into focus by plaintiff's pleadings.'" Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (quoting Hudson v. R.R., 242 N.C. 650, 667, 89 S.E.2d 441, 453 (1955), cert. denied, 351 U.S. 949, 100 L. Ed. 1473 (1956)); see also Rice v. Rigsby and Davis v. Rigsby, 259 N.C. 506, 511, 131 S.E.2d 469, 472 (1963) ("'Suffice it to say, we will not undertake to determine whether an Act of Congress is invalid because violative of the Constitution of the United States except on a ground definitely drawn into focus by plaintiffs' pleadings.'") (citation omitted). Our Supreme Courthas stated that "[i]f the factual record necessary for a constitutional inquiry is lacking, 'an appellate court should be especially mindful of the dangers inherent in the premature exercise of its jurisdiction.'" Anderson, 356 N.C. at 416-17, 572 S.E.2d at 102 (quoting State v. School, 299 N.C. 351, 358-59, 261 S.E.2d 908, 913, aff'd per curiam on rehearing, 299 N.C. 731, 265 S.E.2d 387 (1980)). The constitutionality of the FLAA was not "drawn into focus by [the] pleadings," having not been raised at all in plaintiff's complaint or in defendant's answer, nor in the parties' motions. Anderson, 356 N.C. at 416, 572 S.E.2d at 102 (citation omitted). Further, the record does not reveal sufficient factual development or argument before the trial court to address the constitutional question.
    Our Supreme Court has stated that its authority "to declare an act of the Legislature unconstitutional arises from, and is an incident of, its duty to determine the respective rights and liabilities or duties of litigants in a controversy brought before it by the proper procedure." Nicholson v. Education Assistance Authority, 275 N.C. 439, 447, 168 S.E.2d 401, 406 (1969). The record submitted to this Court is devoid of anything which indicates that the parties raised or argued the constitutional issue in the pleadings or before the trial court. Thus, the constitutional issue was not before the trial court and it was therefore error to address the constitutionality of the FLAA.
    It also appears from the record that the parties are arguing the constitutionality of the FLAA for the first time on appeal and,therefore, the constitutional issue is also not properly before this Court. It would therefore be improper for us to consider the constitutionality of the FLAA since the issue was not properly raised and the factual record was not adequately developed by the parties on this issue. See Anderson, 356 N.C. at 416-17, 572 S.E.2d at 102.