Appeal by Defendant from orders entered 13 June 2005, 30
September 2005, and 20 December 2005 by Judge Marvin P. Pope, Jr.
in District Court, Buncombe County. Heard in the Court of Appeals
10 April 2007.
The McDonald Law Office P.A., by Diane K. McDonald, for
Plaintiff-Appellee.
Mary Elizabeth Arrowood for Defendant-Appellant.
McGEE, Judge.
Daniel Irving Cordell, Jr. (Plaintiff) filed a verified
divorce complaint on 31 January 2003 against Gail Ann Doyle
Cordell (Defendant). Plaintiff alleged that the parties were
married on 4 June 1983 and separated on 15 November 2001.
Plaintiff alleged that two children were born of the marriage:
B.T.C, a boy, and G.N.C., a girl. Plaintiff further alleged that
"there [were] no issues of child support, custody, alimony or
equitable distribution pending between the parties as they [had]
heretofore entered into a separation agreement that they wish[ed]
to be incorporated into the divorce judgment." Plaintiff requestedan absolute divorce from Defendant and further requested "[t]hat
the terms of the parties' separation agreement be incorporated in,
merged with, and become a part of, the divorce judgment." Pursuant
to the parties' separation agreement, Plaintiff had primary custody
of B.T.C. and Defendant had primary custody of G.N.C. The parties
were to exchange the children during one half of the summer and on
holidays.
The trial court entered judgment for absolute divorce on 12
March 2003. The judgment stated that "there [were] no issues of
child support, custody, alimony or equitable distribution pending
between the parties as they [had] heretofore entered into a
separation agreement that they wish[ed] to be incorporated into the
divorce judgment." The decretal portion of the judgment awarded
Plaintiff an absolute divorce from Defendant and also granted "such
additional relief as the Court may deem just and proper."
Plaintiff filed a motion in the cause on 8 February 2005
seeking a modification regarding issues of custody and visitation.
Plaintiff alleged in his motion that there had been a substantial
change in circumstances since the execution of the separation
agreement on 22 July 2002. At the time Plaintiff and Defendant
entered into the separation agreement, Plaintiff lived in Buncombe
County, North Carolina and Defendant lived in Sunset Beach, North
Carolina. Defendant moved to New Jersey in July 2002 immediately
after the parties entered into the separation agreement. Plaintiff
also alleged in his motion that Defendant interfered with
Plaintiff's contact and visitation with G.N.C. Defendant filed a civil action in the Superior Court of New
Jersey seeking to have that court assume jurisdiction over this
matter, and that court filed an order to show cause on 8 March
2005. The Superior Court of New Jersey ordered that
1. [Plaintiff] show cause before this Court
on the 18th day of March 2005, at 11:00 a.m.
at the Warren County Court House, 413 Second
Street, Belvidere, New Jersey why an Order
should not be entered:
a. Determining whether or not
jurisdiction over [G.N.C.] for purposes
of parenting issues is properly in the
State of New Jersey. If so, the fixing
of a parenting schedule, and the costs
related thereto, shall be argued at a
later date.
The Superior Court of New Jersey issued an order on 5 May 2005
denying Defendant's request that it assume jurisdiction. The Court
further stated as follows:
The parties were divorced in North Carolina in
2003. Incorporated in the Judgment of Divorce
entered in North Carolina was an agreement in
which [Defendant] would [be] the primary
caretaker of one child, [G.N.C.], and
[Plaintiff] would [be] the primary caretaker
of the other child, [B.T.C.] [Defendant] and
[G.N.C.] moved to New Jersey before the
Judgment of Divorce was entered, and have been
living [in New Jersey] ever since.
[Plaintiff] and [B.T.C.] have continued to
live in North Carolina. There are now
parenting time problems, and [Plaintiff] wants
the North Carolina court to resolve such
problems while [Defendant] wants the New
Jersey court to take jurisdiction.
The court finds that the court in North
Carolina continues to have exclusive
jurisdiction under the UCCJEA. See N.J.S.A.
2A:34-67. The court in North Carolina was the
last court to enter an Order/Judgment
concerning custody or parenting time, and
[Plaintiff] and [B.T.C.] still live in NorthCarolina. The within court has conferred with
the judge handling the matter in North
Carolina, and both judges agree that North
Carolina continues to have exclusive,
continuing jurisdiction.
A dispute arose between the parties over which parent would
have the children during the first part of the summer of 2005. In
response to a letter from Plaintiff's counsel, the trial court
entered a visitation order on 13 June 2005 (the visitation order)
resolving the dispute. The trial court ordered, inter alia, that
Plaintiff have visitation with G.N.C. for the entire month of July
2005.
Defendant filed a motion on 5 July 2005 to dismiss Plaintiff's
motion in the cause. Defendant alleged:
The prior Separation and Property Settlement
Agreement of the parties has at no time been
incorporated into an order of this Court and
said Separation Agreement continues to be a
contract between the parties and the
provisions of said contract have been followed
by the parties up until the summer vacation of
2005.
Defendant further alleged "[t]hat as there is no court order to
modify, Plaintiff's motion should be dismissed." Defendant also
filed a "motion for relief from [the visitation order] and for a
trial." The trial court entered an order on 30 September 2005
denying Defendant's motion to dismiss and denying Defendant's Rule
59 and Rule 60 motions. Defendant filed notice of appeal from this
order on 30 September 2005, and Plaintiff filed a motion to dismiss
Defendant's appeal.
The trial court entered an order on 20 December 2005. The
trial court found: That since the execution of the [Separation]
Agreement, there has been a substantial change
in circumstances in that . . . Defendant and
[G.N.C.] have relocated to the State of New
Jersey, and there is clear evidence from the
numerous e-mails between the parties that
there has not been effective communication
regarding the scheduling and effecting of
visitation as evidenced by the testimony
regarding [G.N.C.'s] play, [and] . . .
Defendant's planned wedding, rather any
communication has been fruitless; that while
there appears from the evidence to be no
problem of telephonic communication between
. . . Defendant and [B.T.C.], there appear to
be problems with regard to the telephonic
communication between . . . Plaintiff and
[G.N.C.] because . . . Defendant has no
answering machine or does not return
Plaintiff's phone calls[.]
The trial court concluded there had been a substantial change in
circumstances affecting the welfare of G.N.C. and that it was in
the best interests of B.T.C. and G.N.C. to modify the visitation
schedule.
The trial court also entered an order on 20 December 2005
refusing to certify the matter for immediate appeal, and allowing
Plaintiff's motion to dismiss Defendant's appeal from the trial
court's 30 September 2005 order. Defendant appeals.
I.
Defendant first attempts to raise objections to the visitation
order. However, in
Smithwick v. Frame, 62 N.C. App. 387, 303
S.E.2d 217 (1983), this Court held that a party's objections to a
temporary custody order were rendered moot by the entry of the
subsequent final custody order.
Id. at 391, 303 S.E.2d at 220.
Accordingly, because the visitation order was only a temporary
custody order, entered without prejudice to either party,Defendant's objections were rendered moot by entry of a final order
on 20 December 2005.
II.
In her next assignment of error, Defendant argues the trial
court erred by denying Defendant's motion to dismiss Plaintiff's
motion in the cause to modify custody and visitation. Defendant
argues that because the decretal portion of the 12 March 2003
divorce judgment did not specifically incorporate the separation
agreement, the separation agreement was never made an order of the
trial court. Therefore, Defendant argues, the trial court did not
have jurisdiction to modify the separation agreement. We disagree.
The uncontested findings of fact demonstrate that Plaintiff
filed a
pro se complaint for absolute divorce on 31 January 2003.
Plaintiff sought the incorporation of the separation agreement that
had been entered into by the parties in July 2002. Defendant was
served with the complaint and did not file an answer. The findings
further demonstrate that "Plaintiff prepared
pro se the Judgment of
Absolute Divorce as evidenced by the similar format of the
Complaint; that said Judgment was entered by the [trial court] on
the 12
th day of March, 2003." The trial court further found that
paragraph four of the judgment for absolute divorce stated "[t]hat
there [were] no issues of child support, custody, alimony or
equitable distribution pending between the parties as they [had]
heretofore entered into a separation agreement that they wish[ed]
to be incorporated into the divorce judgment." Finally, the trial
court found "[t]hat the decretal portion of the Judgment grants anAbsolute Divorce and 'such other relief as is just and proper';
that in light of the
pro se nature of this action, it is reasonable
for the Court to include the incorporation of the separation
agreement." We hold that, given the
pro se nature of this action,
the trial court incorporated the provisions of the separation
agreement into the judgment for absolute divorce as part of the
"other relief" granted by the trial court. Moreover, the Superior
Court of New Jersey had previously determined that the separation
agreement had been incorporated into the trial court's 12 March
2003 judgment for absolute divorce, and that North Carolina had
continuing, exclusive jurisdiction over the matter. In light of
all of the above, we affirm the trial court's findings and
conclusion that the separation agreement was incorporated into the
12 March 2003 judgment for absolute divorce. Thereafter, the
provisions of the separation agreement were modifiable upon a
motion in the cause alleging a substantial change of circumstances
affecting the welfare of the children.
III.
Defendant next argues the trial court erred by denying
Defendant's Rule 59 and Rule 60 motions. We disagree.
N.C. Gen. Stat. § 1A-1, Rule 59(b) (2005) provides: "A motion
for a new trial shall be served not later than 10 days after entry
of the judgment." In the present case, the trial court entered its
visitation order on 13 June 2005 and Defendant did not file a Rule
59 motion until 5 July 2005, more than ten days after entry of the
judgment. Accordingly, Defendant's motion was untimely and thetrial court did not err by denying Defendant's Rule 59 motion.
Furthermore, we have held that "[b]y its express terms, Rule
60(b) only applies to final judgments, orders, or proceedings; it
has no application to interlocutory orders."
Pratt v. Staton, 147
N.C. App. 771, 775, 556 S.E.2d 621, 624 (2001). In
Dunlap v.
Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807,
disc. review
denied, 318 N.C. 505, 349 S.E.2d 859 (1986), our Court held that a
temporary custody order is interlocutory and "does not affect any
substantial right . . . which cannot be protected by timely appeal
from the trial court's ultimate disposition of the entire
controversy on the merits." Therefore, we hold that Rule 60(b) had
no application to the visitation order, and the trial court did not
err by denying Defendant's Rule 60 motion.
IV.
Defendant next argues the trial court erred by finding a
substantial change in circumstances that affected the welfare of
the children. We disagree.
Pursuant to N.C. Gen. Stat. § 50-13.7(a) (2005), "an order of
a court of this State for custody of a minor child may be modified
or vacated at any time, upon motion in the cause and a showing of
changed circumstances by either party or anyone interested." "The
word custody under the statute also includes visitation."
Savani
v. Savani, 102 N.C. App. 496, 505, 403 S.E.2d 900, 906 (1991)
(citing
Clark v. Clark, 294 N.C. 554, 576, 243 S.E.2d 129, 142
(1978)).
It is well established that a trial court may order amodification of an existing child custody order only if it is
determined "(1) that there has been a substantial change in
circumstances affecting the welfare of the child; and (2) a change
in custody is in the best interest of the child."
Evans v. Evans,
138 N.C. App. 135, 139, 530 S.E.2d 576, 578-79 (2000) (internal
citations omitted). In reviewing a trial court's order modifying
child custody, an appellate court "must examine the trial court's
findings of fact to determine whether they are supported by
substantial evidence. Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion."
Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d
250, 253 (2003) (internal citations and quotations omitted). "It
is a long-standing rule that the trial court is vested with broad
discretion in cases involving child custody."
Pulliam v. Smith,
348 N.C. 616, 624, 501 S.E.2d 898, 902 (1998).
This discretion is based upon the trial
court's opportunity to see the parties; to
hear the witnesses; and to detect tenors,
tones, and flavors that are lost in the bare
printed record read months later by appellate
judges. Accordingly, should we conclude that
there is substantial evidence in the record to
support the trial court's findings of fact,
such findings are conclusive on appeal, even
if record evidence might sustain findings to
the contrary.
Shipman, 357 N.C. at 474-75, 586 S.E.2d at 253-54 (internal
citations and quotations omitted).
In the present case, Plaintiff specifically alleged in his 8
February 2005 motion in the cause that Defendant refused to share
the responsibility of transportation for G.N.C. Plaintiff alsoalleged that Defendant had interfered with Plaintiff's phone
contact with G.N.C. Plaintiff further alleged, upon information
and belief, that Defendant spoke negatively about Plaintiff to
G.N.C., and that Defendant refused to share information about
G.N.C. with Plaintiff.
The trial court found the substantial change of circumstances
to be a lack of effective communication between the parties.
Specifically, the trial court found that "there has not been
effective communication regarding the scheduling and effecting of
visitation as evidenced by the testimony regarding [G.N.C.'s] play,
[and] . . . Defendant's planned wedding, rather any communication
has been fruitless[.]" The trial court also found "that while
there appears from the evidence to be no problem of telephonic
communication between . . . Defendant and [B.T.C.], there appear to
be problems with regard to the telephonic communication between
. . . Plaintiff and [G.N.C.] because . . . Defendant has no
answering machine or does not return Plaintiff's phone calls."
A review of the record shows plenary evidence supporting the
trial court's finding of a change of circumstances affecting the
welfare of the children. Plaintiff testified that he was not
informed that G.N.C. was participating in a school play on 7
October 2005 until a day or two before the play, and at that point,
Plaintiff was unable to make arrangements to drive to New Jersey
and attend the play. However, pursuant to an order of the trial
court, Plaintiff had been scheduled to have visitation with G.N.C.
starting on 7 October 2005. Plaintiff drove to the meeting placein Virginia where he was scheduled to pick up G.N.C. from
Defendant; however, Defendant did not show up with G.N.C.
Plaintiff also testified that he had not been informed that
Defendant's wedding was planned for July 2005 until about one month
prior to the wedding. At that time, Plaintiff had already made
arrangements for child care for G.N.C. in North Carolina; Plaintiff
did not want to change the visitation schedule under which
Plaintiff had visitation with G.N.C. for the first half of the
summer.
The transcript is also replete with testimony that Defendant
interfered with the telephonic communication between Plaintiff and
G.N.C. Plaintiff testified that although he called Defendant's
home to talk with G.N.C. twenty-four times in October 2005, he was
only able to talk with G.N.C. four times. Plaintiff testified that
at first he was able to leave messages on Defendant's answering
machine, but then Defendant unplugged or turned off the answering
machine and Plaintiff could no longer leave messages for G.N.C.
Plaintiff further testified that when he spoke with G.N.C. over the
phone, Defendant stood over the phone and talked during his
conversations with G.N.C.
Defendant argues that the purported problems with scheduling
found by the trial court occurred after the filing of Plaintiff's
motion in the cause, and therefore could not be relied upon by the
trial court. However, Defendant did not object on this basis at
trial and cannot now raise this objection.
See N.C.R. App. P.
10(b)(1). Moreover, Defendant has not cited, nor have we found,any authority that a trial court cannot consider evidence after the
filing of a motion in the cause when determining whether there has
been a substantial change in circumstances since the entry of the
previous order.
Defendant also argues that even if the trial court's findings
were supported by the evidence, they did not rise to the level of
a substantial change of circumstances. However, our Court has
previously acknowledged that interference with the visitation
rights of a parent "can constitute a substantial change of
circumstances sufficient to warrant a change of custody."
Woncik
v. Woncik, 82 N.C. App. 244, 249, 346 S.E.2d 277, 280 (1986). We
agree with the trial court that the lack of effective communication
between Plaintiff and Defendant and Defendant's interference with
the telephonic communication between Plaintiff and G.N.C. rose to
the level of a substantial change of circumstances.
Defendant also argues the trial court made an erroneous
finding of fact related to a failed visitation of G.N.C. with
Plaintiff in November 2005. However, because this finding was not
necessary to support the trial court's finding of a substantial
change of circumstances, we need not address this argument.
We also hold that the trial court made an adequate finding
that the substantial change of circumstances affected the welfare
of the children. The trial court found that "the children's best
interest is being harmed because of the lack of contact with
parents caused by the inability of the parents to work together."
This finding is clearly supported by the evidence recited above. Moreover, there was also evidence that the parents' inability to
communicate caused the failure of other attempted visitations. The
trial court's findings of fact empowered the trial court to modify
the parties' incorporated separation agreement if that modification
was in the best interests of the children.
See Evans, 138 N.C.
App. at 139, 530 S.E.2d at 578-79.
V.
Defendant also argues that the trial court had no authority,
pursuant to Rule 54(b) of the North Carolina Rules of Civil
Procedure, to dismiss Defendant's appeal from the 30 September 2005
order. We agree.
In its 20 December 2005 order dismissing Defendant's appeal,
the trial court found that, as a result of the 30 September 2005
order, "the matter of custody was not disposed of, but rather would
require further Court action in order to finally determine the
rights of all of the parties to this action, as prayed for [in] the
February 8, 2005 Motion by . . . Plaintiff." The trial court
relied upon language from
Berkman v. Berkman, 106 N.C. App. 701,
417 S.E.2d 831 (1992), to the effect that "[a] temporary child
custody order is interlocutory and 'does not affect any substantial
right . . . which cannot be protected by timely appeal from the
trial court's ultimate disposition of the entire controversy on the
merits.'"
Id. at 702, 417 S.E.2d at 832 (quoting
Dunlap, 81 N.C.
App. at 676, 344 S.E.2d at 807). The trial court then declined to
certify the matter for immediate appeal pursuant to Rule 54(b).
Based upon the trial court's order, it appears the trial courtthen further dismissed Defendant's appeal as interlocutory and not
affecting a substantial right. However, "'ruling on the
interlocutory nature of appeals is properly a matter for the
appellate division, not the trial court.'"
Giles v. First Virginia
Credit Servs., Inc., 149 N.C. App. 89, 95, 560 S.E.2d 557, 561
(quoting
Estrada v. Jaques, 70 N.C. App. 627, 640, 321 S.E.2d 240,
249 (1984)),
disc. review denied, 355 N.C. 491, 563 S.E.2d 568
(2002). In
Estrada, our Court recognized that trial courts do have
limited authority to dismiss appeals pursuant to N.C.R. App. P. 25.
Estrada, 70 N.C. App. at 638, 321 S.E.2d at 248. N.C.R. App. P.
25(a) provides:
If after giving notice of appeal from any
court, commission, or commissioner the
appellant shall fail within the times allowed
by these rules or by order of court to take
any action required to present the appeal for
decision, the appeal may on motion of any
other party be dismissed. Prior to the filing
of an appeal in an appellate court motions to
dismiss are made to the court, commission, or
commissioner from which appeal has been taken;
after an appeal has been filed in an appellate
court motions to dismiss are made to that
court. Motions to dismiss shall be supported
by affidavits or certified copies of docket
entries which show the failure to take timely
action or otherwise perfect the appeal, and
shall be allowed unless compliance or a waiver
thereof is shown on the record, or unless the
appellee shall consent to action out of time,
or unless the court for good cause shall
permit the action to be taken out of time.
However, our Court in
Estrada held that "the motions described in
the second sentence [of Rule 25] are
only those for failure to
comply with the Rules of Appellate Procedure or with court orders
requiring action to perfect the appeal."
Estrada, 70 N.C. App. at639, 321 S.E.2d at 248 (emphasis in original). Therefore, our
Court held that the trial court acted beyond its authority in
dismissing the plaintiff's appeal as interlocutory.
Id.
In the present case, while the trial court appropriately
declined to certify the matter for immediate appeal pursuant to
Rule 54(b), the trial court did not have authority to dismiss
Defendant's appeal on the basis that it was interlocutory and did
not affect a substantial right. Accordingly, the trial court erred
by dismissing Defendant's appeal. However, we need not remand the
matter as we have now reached the merits of Defendant's appeal from
the trial court's 30 September 2005 order.
Dismissed as moot in part; affirmed in part; reversed in part.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).
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