An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-765


Filed: 18 May 2004


v .                                     Surry County
                                        No. 01 CVD 1444

    Appeal by defendant from an order entered 21 March 2003 by Judge Charles M. Neaves, Jr. in Surry County District Court. Heard in the Court of Appeals 19 April 2004.

    No brief filed for plaintiff-appellee.

    Gretchen E. Hollar for defendant-appellant.

    HUNTER, Judge.

    Misty Kiser (“defendant”) appeals an order denying her “Motion for a New Trial and Amendment of Judgment Pursuant to Rule 59 of the North Carolina Rules of Civil Procedure” (“Rule 59 Motion”) and her “Motion for Relief from Judgment or Order Pursuant to Rule 60 of the North Carolina Rules of Civil Procedure” (“Rule 60 Motion”), both of which were filed in response to the trial court entering a “Child Custody and Support Order” (“Custody Order”) that awarded Brian W. Kiser (“plaintiff”) primary physical custody of the parties' two minor children prior to the custody issue being scheduled for mediation. For the reasons stated herein, we affirm.
    Plaintiff and defendant were married on 20 June 1998. Two minor children were born of this marriage. The partiessubsequently separated on 13 July 2001, and judgment of divorce was entered on 16 September 2002.
    Following the parties separation, the children were in the primary physical custody of defendant, where they remained until the custody issue came on for hearing on 22 July 2002. As a result of that hearing, plaintiff was awarded temporary physical custody. Plaintiff was later awarded permanent physical custody of the children pursuant to a Custody Order entered 7 January 2003.
    Defendant filed a Rule 59 Motion and a Rule 60 Motion in response to the Custody Order because that order was entered before the custody issue was scheduled for mediation as required by the General Statutes of North Carolina and the corresponding uniform rules for Judicial District 17B, of which Surry County is a part. Her motions were heard on 11 February 2003. The trial court filed an “Order Denying Defendant's Rule 59 Motion for New Trial and Amendment of Judgment and Rule 60 Motion to Renew and Reargue” on 21 March 2003 in which it made the following findings of fact (none of which defendant disputes on appeal):
        1.    The Complaint for custody was filed by the Plaintiff on August 9, 2001, and the Defendant's Answer and Counterclaim was filed on October 9, 2001.

        2.    In November, 2001, Defendant, by and through her then attorney, Dennis G. Martin, filed a Motion and Notice of Hearing for Exemption from Mediation. No order was ever signed with respect to said Motion. Mr. Martin filed a motion to withdraw as Defendant's counsel, and that motion was granted in March, 2002. The aforesaid Motion and Notice of Hearing for Exemption from Mediation has never been withdrawn.
        3.    The child custody case came on to be heard before the Court in July, 2002, at which time both parties stated that they were ready to proceed and Defendant reiterated several times that she was ready to proceed after being asked by the Court if she wished to request a continuance.

        4.    At the time the child custody case on to be heard in July, 2002, a custody mediation had not been scheduled nor conducted.

        5.    At the close of the July, 2002 hearing, the Defendant informed the Court that she wished to offer further evidence; and she requested a second hearing for that purpose.

        6.    The Court entered a Temporary Custody Order and granted Defendant's request for a final hearing so that she could offer further evidence.

        7.    The final hearing was conducted on September 16, 2002. Both parties were properly and duly served with notice of the hearing, both parties announced to the Court that they were ready to proceed, and neither party requested that the[] case be sent to mediation.

        8.    Following the final hearing, the Court entered its Child Custody and Support Order dated January 7, 2003. Subsequently, the Defendant noted that the case had not been sent to mediation and filed the Motions which are the subject of this hearing.

Based on these findings, the trial court concluded:
        1.    Both parties had proper notice of the custody hearing.

        2.    There were no irregularities which prevented the Defendant from having a fair trial.

        3.    It would not be equitable to set aside the Child Custody and Support Order entered on January 7, 2003.
Thus, defendant's motions were denied, and she filed notice of appeal.


    By defendant's first assignment of error, she argues the trial court committed reversible error by denying her Rule 59 Motion and Rule 60 Motion. Rule 59 provides, inter alia, that
        A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds:

            (1)    Any irregularity by which any party was prevented from having a fair trial;

            . . . .

            (9)    Any other reason heretofore recognized as grounds for new trial.

N.C. Gen. Stat. § 1A-1, Rule 59(a) (2003). Additionally, Rule 60 provides, inter alia:
        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;

            . . . .

            (4)    The judgment is void;

            . . . .

            (6)    Any other reason justifying relief from the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2003).
    Defendant contends that either of her motions should have been granted because the custody issue was never scheduled for mediationas required by both the Custody and Visitation Mediation Program under our statutes and the uniform rules for Judicial District 17B. We disagree.
    In this state, “a Custody and Visitation Mediation Program [was established] to provide statewide and uniform services in accordance with G.S. 50-13.1 in cases involving unresolved issues about the custody or visitation of minor children.” N.C. Gen. Stat. § 7A-494(a) (2003). Section 50-13.1(b) of our statutes provides, inter alia, that:
        Whenever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child, the matter, where there is a program established pursuant to G.S. 7A-494, shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation pursuant to subsection (c).

N.C. Gen. Stat. § 50-13.1(b) (2003). Subsection (c) of this statute provides:
        For good cause, on the motion of either party or on the court's own motion, the court may waive the mandatory setting under Article 39A of Chapter 7A of the General Statutes of a contested custody or visitation matter for mediation. Good cause may include, but is not limited to, the following: a showing of undue hardship to a party; an agreement between the parties for voluntary mediation, subject to court approval; allegations of abuse or neglect of the minor child; allegations of alcoholism, drug abuse, or spouse abuse; or allegations of severe psychological, psychiatric, or emotional problems.

N.C. Gen. Stat. § 50-31.1(c).    Defendant asserts the present case is analogous to Chillari v. Chillari, 159 N.C. App. 670, 583 S.E.2d 367 (2003). In Chillari, the trial court determined the issue of permanent custody before the parties had complied with an order to mediate child custody and visitation issues. On appeal, this Court stated:
            The import of N.C. Gen. Stat. § 50-13.1 is clear: the court is to look first to the parties, through the process of mediation, to resolve issues of child custody and visitation. Where the parties or the record indicate there is “good cause” justifying waiver, the court may bypass mediation. However, absent such “good cause,” mediation is mandatory as indicated by the use of the directive “shall,” the pre-requisite of “good cause” to waiver, and the characterization of setting an action for mediation as “mandatory.”
Id. at 674-75, 583 S.E.2d at 370 (footnote omitted). Based on these rules, the Chillari Court concluded:
        [N]either the record, the transcript, nor the order addresses the issue of mediation. The parties did not move or stipulate to waive mediation, and there was no indication in the record that the court, on its own motion, waived mediation. No statutory examples of good cause for waiver of mediation were cited in the transcript or order as a justification for waiver, nor did the court raise other factors which might justify waiving mediation. . . . In short, nothing in the record indicates contemplation of or compliance with N.C. Gen. Stat. § 50-13.1.

Id. at 675, 583 S.E.2d at 370-71 (footnote omitted). Therefore, the permanent custody order was vacated and remanded.
    Defendant contends that, like Chillari, the record in the case sub judice does not “indicate[] contemplation of or compliance withN.C. Gen. Stat. [§] 50-13.1.” We, however, conclude that the two cases are distinguishable.
    It is undisputed that no mediation was scheduled or took place between the parties pursuant to our General Statutes or the uniform rules regulating mediation of custody and visitation disputes for Judicial District 17B. Yet, the record reveals that defendant requested a waiver of court-ordered mediation by motion filed 28 November 2001 on the basis of “acts of domestic violence by the plaintiff upon the defendant . . . .” Good cause for waiver of mediation includes allegations of spouse abuse/domestic violence. N.C. Gen. Stat. § 50-31.1(c); Uniform Rules for Judicial District 17B § 3(A)(4). Although this motion was never ruled on by the trial court, it was also never withdrawn by defendant before final disposition of the child custody issue fourteen months later. Further, when the child custody issue was heard in July and September of 2002, defendant asserted both times that she was ready to proceed and did not request mediation. Defendant did not take issue with the case not being sent to mediation until after the trial court entered a Custody Order awarding permanent physical custody of the children to plaintiff.
    In conclusion, while we recognize it is the better practice of a trial court to affirmatively approve or deny a waiver of mediation for child custody/visitation issues or find that there is good cause to waive mediation on its own, defendant was not prejudiced by the lack of mediation in this case. Thus, we hold the trial court did not err by denying defendant's Rule 59 Motionand Rule 60 Motion because she sought waiver of mediation and it would not be “equitable” for this Court to now set aside the Custody Order to assist defendant in possibly obtaining a more desirable outcome.
    Chief Judge MARTIN and Judge THORNBURG concur.
    Report per Rule 30(e).

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