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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 17 July 2007
HAROLD TILLEY and wife,
No. 02 CVD 14
BROCK J. DIAMOND,
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
Bell, Davis & Pitt, P.A., by Robin J. Stinson, for plaintiffs-
James, McElroy & Diehl, P.A., by Richard A. Elkins, and
Preston O. Odom, III, for defendant-appellant.
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
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)
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.
Standard of Review
'It is well settled in this jurisdiction that when the trial
court sits without a jury, the standard of review on appeal is
whether there was competent evidence to support the trial court's
findings of fact and whether its conclusions of law were proper in
light of such facts.' While findings of fact by the trial court in
a non-jury case are conclusive on appeal if there is evidence to
support those findings, conclusions of law are reviewable de novo.
Lee v. Lee, 167 N.C. App. 250, 253, 605 S.E.2d 222, 224 (2004)
(quoting Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418
S.E.2d 841, 845 (1992)).
In the instant case, defendant appeals from the denial of his
motion to set aside the previously entered consent judgment of 15
October 2002, pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)
(2005), for lack of subject matter jurisdiction. The standard of
review for a trial court's ruling on a Rule 60(b) motion is abuse
of discretion. Barnes v. Wells, 165 N.C. App. 575, 580, 599
S.E.2d 585, 589 (2004) (citations omitted). A ruling committed to
a trial court's discretion is to be accorded great deference and
will be upset only upon a showing that it was so arbitrary that it
could not have been the result of a reasoned decision. White v.
White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). However,
'whether a trial court has subject matter jurisdiction is aquestion of law, which is reviewable on appeal de novo.'
Childress v. Fluor Daniel, Inc., 172 N.C. App. 166, 167, 615 S.E.2d
868, 869 (2005) (quoting Ales v. T. A. Loving Co., 163 N.C. App.
350, 352, 593 S.E.2d 453, 455 (2004)).
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
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
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
s findings of fact are supported by competent evidence.
This assignment of error is overruled.
We grant defendant's petition for writ of certiorari to review
the orders entered 14 and 15 October 2002, and hold that the trial
court was without subject matter jurisdiction to enter them. We
otherwise deny defendant's petition for writ of certiorari to
review certain additional orders. The 9 September 2005 order
denying defendant's motion to set aside the 15 October 2002 order
is reversed, and the 14 and 15 October 2002 orders are vacated.
Vacated and Reversed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
The judges participated in and submitted this opinion for
filing prior to 7 July 2007.
To protect the privacy of the minor child, we refer to her
in this opinion by the pseudonym Rose.
The record does not reveal why so much time expired before
the motion was heard.
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