BRIAN W. KISER,
Plaintiff
v
.
Surry County
No. 01 CVD 1444
MISTY KISER,
Defendant
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.
(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.
Affirmed.
Chief Judge MARTIN and Judge THORNBURG concur.
Report per Rule 30(e).
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