Converted WP file 060500-1

v .                         Watauga County
                            No. 02 CVD 14
BROCK J. DIAMOND,
    Defendant.

    Appeal by defendant from judgments and orders entered between 10 January 2002 and 9 September 2005 by Judges Kyle D. Austin, Alexander Lyerly, William A. Leavell, and Samuel Tate, all in Watauga County District Court. Heard in the Court of Appeals 11 January 2007.

    Bell, Davis & Pitt, P.A., by Robin J. Stinson, for plaintiffs-
    appellees.

James, McElroy & Diehl, P.A., by Richard A. Elkins, and Preston O. Odom, III, for defendant-appellant.

    LEVINSON, Judge.

    Brock Diamond (defendant) appeals from the following orders: an order entered 10 January 2002 awarding temporary custody of the minor child, “Rose,”   (See footnote 1) to plaintiffs, Harold and Margaret Tilley;orders entered 17 January 2002, 14 March 2002, and 4 April 2002 continuing the order of 10 January 2002 in full force and effect; a temporary memorandum of judgment/order entered 13 May 2002, and a memorandum of judgment on 14 October 2002 continuing custody of Rose with plaintiffs; a consent judgment entered 15 October 2002, granting custody of Rose to plaintiffs and granting defendant limited visitation rights; and a judgment entered 9 September 2005, denying defendant's motion to set aside the consent judgment entered 15 October 2002. We vacate and reverse.
    The pertinent facts may be summarized as follows: Rose, the subject minor of this appeal, was born on 5 April 1996 and is the biological child of defendant, Brock Diamond, and Malia Diamond (Malia). Rose was born in California, and lived there with her parents for the first four years of her life. During this time, defendant and Malia used certain illegal drugs, and from 1 April 2000 until 23 September 2000, defendant was incarcerated on drug- related charges. On 11 April 2000 Malia gave birth to a son who was born with a positive drug toxicology screen for amphetamines, and on 15 May 2000 the Children and Family Services Agency for Orange County, California, placed the baby in foster care. The child has since been adopted, and his status is not at issue in this appeal. Shortly after the birth of her son and while defendant was incarcerated, Malia took Rose from California andmoved to North Carolina. Defendant was again incarcerated from 30 July 2001 until 24 December 2001. When he called Melia on 25 December 2001, he learned that Melia had died that day in a car accident. At the time of Malia's death, she and Rose were living in North Carolina. Although defendant learned of Malia's death the day it occurred, he took no immediate action to have Rose returned to him in California.
    Rose's grandfather, W. Richard Ferrell, was acquainted with plaintiffs. The plaintiffs first met Rose at Malia's funeral, and on 3 January 2002 plaintiffs and Ferrell executed a document titled “Custody Agreement” wherein Ferrell placed “custody” of Rose with plaintiffs. Seven days later, on 10 January 2002, plaintiffs filed the subject action against defendant, seeking custody of Rose. Plaintiffs' complaint asserted, inter alia, that defendant was at that time unable to provide a suitable home for Rose, that “it would be detrimental to the child” to be in defendant's custody, and that defendant had “acted in a manner inconsistent with a parents's protected status so that the Court should apply 'the best interest of the child' test and place the child with the Plaintiffs.” Plaintiffs sought temporary custody of Rose pending notice to and service on defendant, and attached an affidavit to the complaint stating that Rose had resided in North Carolina since June 2000.     On 10 January 2002 the trial court entered an order giving plaintiffs temporary custody of Rose, pursuant to N.C. Gen. Stat. § 50-13.5(d)(2)(2005). However, defendant was not served with process until 19 March 2002. Interim orders continuing Rose's custody with plaintiffs were entered on 17 January 2002; 14 March 2002; and 4 April 2002. The order of 4 April 2002 set a hearing date of 13 May 2002.
    On 12 April 2002, defendant filed a motion to dismiss plaintiff's action against him, citing N.C. Gen. Stat. § 1A-1 Rule 12(b)(1); (b)(2); and (b)(3)(2005). Defendant asserted that the trial court lacked subject matter jurisdiction over the matter; that Rose's home state was California; and that Rose should be returned to his custody. On 10 May 2002 defendant filed a brief in support of his motion to dismiss, asserting that Ferrell had no standing or authority to make decisions about Rose's custody or to place her with plaintiffs, and that plaintiffs lacked standing to bring an action against defendant for custody of Rose.
    On 13 May 2002 the parties executed a temporary memorandum of judgment/order without prejudice, which provided that Rose's custody would remain with plaintiffs. The temporary memorandum was signed by the trial court. The plaintiffs' custody action against defendant, and defendant's motion to dismiss, were set for hearing on 14 October 2002. The hearing was not conducted because theparties executed a child custody agreement, which was reduced to writing as a memorandum of judgment. This agreement granted plaintiffs custody of Rose, and granted defendant limited visitation rights with his daughter. On 15 October 2002 the parties acknowledged their consent to entry of the consent judgment, and the trial entered an order incorporating the terms of the parties' agreement.
    On 13 November 2002 defendant filed a motion to set aside the 14 October 2002 memorandum of judgment and the 15 October 2002 judgment, alleging that, because Rose's home state was California, North Carolina courts had no subject matter jurisdiction over the matter. Defendant later amended his motion, adding the additional ground for setting aside the judgment that plaintiffs did not have standing to file their original custody action against defendant. Plaintiffs denied the material allegations of defendant's motion, and hearings were held on 19 March 2003 and 28 July 2004.   (See footnote 2) On 9 September 2005 the trial court entered an order denying defendant's motion to set aside the consent judgment of 15 October 2002 for lack of standing and jurisdiction, and declaring the same to remain “in full force and effect.” From this order defendant appeals.

    Defendant argues first that the trial court erred by denying his motion to set aside the judgment of 15 October 2002 for lack of subject matter jurisdiction. Defendant argues that, because the plaintiffs had no standing to bring a custody action against him, the trial court lacked subject matter jurisdiction over the proceeding. In addressing this issue, we have considered only the argument(s) presented by the parties either in support or opposition to the trial court's ruling; these arguments are set forth in this portion of the opinion.
        Jurisdiction is “[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it.” Black's Law Dictionary 856 (7th ed. 1999) (defining judicial jurisdiction). . . . “A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.” Subject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act: A judgment is void, when there is a want of jurisdiction by the court over the subject matter. . . . “A void judgment is in legal effect no judgment. No rights are acquired or divested by it. It neither binds nor bars anyone, and all proceedings founded upon it are worthless.”

In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 789-90 (2006) (quoting Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)), and Hart v. Thomasville Motors, Inc., 244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956)) (internal citation omitted).
    Defendant asserts that plaintiffs lacked standing to bring their custody action against him. Standing has been defined as “whether a party has a sufficient stake in an otherwise justiciable controversy so as to properly seek adjudication of the matter.” Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 51 (2002) . “If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim.” Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16, disc. review denied, 359 N.C. 632, 613 S.E.2d 688 (2005) .
    Standing to bring an action for child custody is governed by N.C. Gen. Stat. § 50-13.1(a) (2005), which provides in pertinent part that “[a]ny parent, relative, or other person . . . claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child[.]” In the instant case, plaintiffs are not Rose's parents or relatives. Accordingly, theissue is whether they had standing as “other person[s]” to institute an action for custody of Rose.
    The phrase “other person” does not state any restrictions on standing. “Despite this broad language, in the context of a third party seeking custody of a child from a natural (biological) parent, our Supreme Court has indicated that there are limits on the 'other persons' who can bring such an action. 'N.C.G.S. § 50-13.1 was not intended to confer upon strangers the right to bring custody or visitation actions against parents of children unrelated to such strangers. Such a right would conflict with the constitutionally-protected paramount right of parents to custody, care, and control of their children.'” Ellison v. Ramos, 130 N.C. App. 389, 392-93, 502 S.E.2d 891, 893 (1998) (quoting Petersen v. Rogers, 337 N.C. 397, 406, 445 S.E.2d 901, 906 (1994)). Thus, “the broad grant of standing in N.C.G.S. § 50-13.1(a) does not convey an absolute right upon every person who allegedly has an interest in the child to assert custody.” Krauss v. Wayne County DSS, 347 N.C. 371, 379, 493 S.E.2d 428, 433 (1997) .
    In the instant case, it is undisputed that plaintiffs met Rose for the first time at Malia's funeral, had no prior relationship with the child, and filed their custody suit against defendant a mere week after Rose's grandfather “gave” the child to them. On these facts, we conclude that plaintiffs were essentially strangerswith no standing to bring a custody claim seeking to remove Rose's custody from defendant, the child's natural father. The trial court acknowledged as much during the hearing on this matter:
        THE COURT: The Court of Appeals may have to _ I'm not finding standing [based] on consent.

        ATTORNEY FOR INTERVENORS: . . . [Y]ou might want to clarify that in this paragraph then.

        . . . .

        PLAINTIFFS' ATTORNEY: . . .[C]ould you just say that the plaintiffs had standing to file this action and leave it at that?

        THE COURT: Okay. And the Findings of Fact show that she hadn't met the plaintiffs until the day of the funeral.

        PLAINTIFFS' ATTORNEY: Okay.

        THE COURT: They ought to have a ball at the Court of Appeals.

We conclude that the plaintiffs did not have standing to file the subject custody action, and that the trial court erred by denying defendant's motion to set aside the consent judgment for lack of subject matter jurisdiction.
    Plaintiffs do not contest that, at the time they filed their custody action against defendant, they had only known Rose for a few days. Instead, they argue that Peterson's interpretation of G.S. § 50-13.1 is not applicable to the instant case, because Peterson involved visitation rights, rather than an action for fullcustody. Their position ignores the plain language of G.S. § 50- 13.1(a), that “[u]nless a contrary intent is clear, the work 'custody' shall be deemed to include custody or visitation or both.” Plaintiffs also confuse the issue of standing to bring a custody action with the entirely separate issue of the proper standard for the trial court to apply in making custody determinations. Contrary to plaintiffs' assertions, the issue of whether or not a parent has engaged in conduct inconsistent with his or her constitutionally protected status as the natural parent has no bearing on whether a stranger has standing to bring a custody action against that parent.
    We conclude that plaintiffs lacked standing to bring their custody action. Accordingly, the consent judgment entered in this case must be vacated. However, our ruling is without prejudice to plaintiffs' right to bring a new custody action. Defendant argues that, if plaintiffs were to bring a new action for custody, the time that the plaintiffs have spent with Rose should be “excluded” from the trial court's determination of whether plaintiffs' have standing to bring the action. Defendant cites no authority that supports his position, and we find none. Accordingly, if plaintiffs again file for custody of Rose, the trial court is instructed to consider the entire length of plaintiffs' and Rose's relationship in determining whether plaintiffs have standing.     Defendant also argues that the trial court erred by denying his motion to set aside the consent judgment for lack of subject matter jurisdiction, on the grounds that North Carolina was not Rose's home state. N.C. Gen. Stat. § 50A-102(7) (2005) defines a child's “home state” in relevant part as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.” And, N.C. Gen. Stat. § 50A-201(a) (2005), provides in pertinent part that “a court of this State has jurisdiction to make an initial child-custody determination only if: (1) This State is the home state of the child on the date of the commencement of the proceeding[.]”
    In the instant case, it is undisputed that Malia and Rose were physically present in North Carolina for more than six months before plaintiffs filed their custody action. Moreover, “[i]n a custody proceeding, the trial court's findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.” Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (citations omitted). In the case sub judice, we conclude that the trial court' s findings of fact are supported by competent evidence. This assignment of error is overruled.