Kanellos v. Kanellos , 251 N.C. App. 149 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-416
Filed: 20 December 2016
Union County, No. 14 CVD 1703
STASIE KANELLOS, Plaintiff,
v.
IOANNIS JOHN KANELLOS, Defendant.
Appeal by Plaintiff from order entered 2 February 2016 by Judge Joseph
Williams in Union County District Court. Heard in the Court of Appeals 4 October
2016.
J. Clark Fischer for Plaintiff.
John T. Burns for Defendant.
STEPHENS, Judge.
Plaintiff appeals from an interlocutory order making an initial permanent
child custody determination, contending that the district court erred in ordering
Plaintiff and the parties’ children to move back to the county where the parties lived
before their separation, and to reside there in the former marital residence. We
vacate the challenged order to the extent it purports to compel Plaintiff to reside in a
specific county and house, because those matters fall outside the scope of authority
granted to the district court in a child custody action.
KANELLOS V. KANELLOS
Opinion of the Court
Factual and Procedural Background
On 1 July 2014, Plaintiff Stasie Kanellos filed a complaint for child custody,
child support, postseparation support, alimony, equitable distribution, and attorney’s
fees against Defendant Ioannis “John” Kanellos. The parties were married on 27
March 2007, and the union produced two children, a boy and a girl. On 25 June 2014,
John moved out of the residence. The child custody matter came on for hearing on 23
September 2015, in Union County District Court, the Honorable Joseph Williams,
Judge presiding. On 2 February 2016, the district court entered its child custody
order.
Before the marriage, John owned a restaurant in Monroe and a house located
at 8220 Sunset Hill Road in Waxhaw. Both towns are located in Union County.
Following their marriage in May 2007, the parties resided in the Sunset Hill Road
residence. Following the birth of her children, Stasie did not work outside of the
home, and, although Stasie’s mother would travel from her home in Lewisville to
assist with child care, attend doctor’s appointments, and clean the home, Stasie
provided “90% of the child care for the two children.” The evidence indicated that a
frequent daily routine was for John to arrive home after work, take a short nap, spend
one hour with the children, and then leave to go work out at the gym. Stasie also
regularly took the children to Lewisville for several days at a time. During the course
of the marriage, John was discovered to be having an extra-marital relationship, and,
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after first trying to repair the marriage though counseling, Stasie asked John to leave
the marital residence. The parties agreed that John could spend time with the
children on Wednesdays and alternating weekends, Fridays to Sundays. Still, the
parties’ relationship was strained: Stasie texted John that “the kids do not give a
sh*t about you and are dead to you,” told John that he did not deserve the kids, and
told the eldest child that his father did not want to talk to him and that John was not
his father. At the time of the 23 September 2015 hearing, Stasie and the children
lived with Stacie’s mother in Lewisville, the children were enrolled in school there,
and Stasie had obtained employment in nearby Winston-Salem. Prior to relocating
to Lewisville, Stasie had discussed the move with John, who objected. John asked
Stasie to allow the children to stay with him every other week during the summer,
but Stasie refused. Stasie also rejected John’s request for additional visitation time
for beach weekends. At some point after the parties’ separation, John also relocated,
moving from Waxhaw, in Union County, to Charlotte, in Mecklenburg County.1 John
testified that the three-hour travel time to the Lewisville area made it difficult for
John to attend his son’s 8:30 a.m. Saturday soccer games.
In its 2 February 2016 order, the district court concluded that both parties
were fit and proper persons to have custody of the children, and thus, awarded the
1 At the hearing, John testified that he and the children would live in the former marital residence if
he gained primary custody, but in his brief to this Court, John’s appellate counsel states that John
lived with his own parents in Charlotte at the time of the hearing.
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parties joint legal custody, with Stacie having primary physical custody and John
enjoying visitation on alternating weekends. The court further determined that it
was in the best interest of the children that they reside in Union County. Accordingly,
the court ordered that Stasie and the children move back to Union County and live
in the former marital residence, and that John continue to pay the mortgage and
utilities for the home. From the custody order, Stasie appeals, arguing that the trial
court abused its discretion by requiring that she relocate to the former marital
residence in Union County. Stasie emphasizes that, at the time of the custody
hearing, neither she nor John had resided in Union County for over a year, and
contends that, where the children were settled in Forsyth County, the move would be
highly disruptive to them.
Grounds for Appellate Review
Initially, we must consider whether this interlocutory appeal is properly before
us. Our review of the record in this matter and pertinent case law indicates that the
2 February 2016 order from which Stasie appeals is a permanent or “final” order as
to child custody, and, thus, immediately appealable under our General Statutes.
“An interlocutory order is one made during the pendency of an action, which
does not dispose of the case, but leaves it for further action by the trial court in order
to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C.
357, 362, 57 S.E.2d 377, 381 (citation omitted), reh’g denied, 232 N.C. 744, 59 S.E.2d
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429 (1950). “Generally, there is no right to appeal from an interlocutory order.” Flitt
v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002) (citations omitted).
However, in 2013, our General Assembly enacted section 50-19.1, which provides:
Notwithstanding any other pending claims filed in the
same action, a party may appeal from an order or judgment
adjudicating a claim for absolute divorce, divorce from bed
and board, child custody, child support, alimony, or
equitable distribution if the order or judgment would
otherwise be a final order or judgment within the meaning
of [section] 1A-1, Rule 54(b), but for the other pending
claims in the same action.
N.C. Gen. Stat. § 50-19.1 (2015). In turn, under Rule 54(b) of our Rules of Civil
Procedure, “[w]hen more than one claim for relief is presented in an action, . . . the
court may enter a final judgment as to one or more but fewer than all of the claims
. . . only if there is no just reason for delay and it is so determined in the judgment.”
N.C. Gen. Stat. § 1A-1, Rule 54(b) (2015). A judgment with a Rule 54(b) certification
from the trial court is then immediately appealable. Id. The initial question for this
Court is thus whether the order from which Stasie appeals is a final order as to child
custody.
In one sense, all child custody orders are temporary: they
are subject to modification, and they terminate once the
child reaches the age of majority. Yet a distinction is
drawn in our statutes and in our case law between
temporary or interim custody orders and permanent or
final custody orders.
A permanent custody order establishes a party’s present
right to custody of a child and that party’s right to retain
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custody indefinitely. Permanent custody orders arise in
one of two ways. If the necessary parties have entered into
an agreement for permanent custody, and the trial court
enters a consent decree which contains that agreement, the
consent decree is a permanent custody order. In all other
cases, permanent custody orders are those orders that
resolve a contested claim for permanent custody of a child
by granting permanent custody to one of the parties. They
are issued after a hearing of which all parties so entitled
are notified and at which all parties so entitled are given
an opportunity to be heard.
In contrast, temporary custody orders establish a party’s
right to custody of a child pending the resolution of a claim
for permanent custody—that is, pending the issuance of a
permanent custody order.
Regan v. Smith, 131 N.C. App. 851, 852-53, 509 S.E.2d 452, 454 (1998) (citations and
internal quotation marks omitted).
“There is no absolute test for determining whether a custody order is
temporary or final. A temporary order is not designed to remain in effect for extensive
periods of time or indefinitely.” Miller v. Miller, 201 N.C. App. 577, 579, 686 S.E.2d
909, 911 (2009) (citations, internal quotation marks, and ellipses omitted). Generally,
a child custody “order is temporary if either (1) it is entered without prejudice to
either party, (2) it states a clear and specific reconvening time in the order and the
time interval between the two hearings was reasonably brief; or (3) the order does not
determine all the issues.” Senner v. Senner, 161 N.C. App. 78, 81, 587 S.E.2d 675,
677 (2003) (citations omitted). “If the order does not meet any of these criteria, it is
permanent.” Peters v. Pennington, 210 N.C. App. 1, 14, 707 S.E.2d 724, 734 (2011)
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(citation omitted). Further, it is the satisfaction of these criteria, or lack thereof, and
not any designation by a district court of an order as temporary or permanent which
controls. See Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 (2000);
see also Woodring v. Woodring, 227 N.C. App 638, 643, 745 S.E.2d 13, 18 (2013) (“A
trial court’s designation of an order as ‘temporary’ or ‘permanent’ is neither
dispositive nor binding on an appellate court.”) (citation omitted).
Where this Court has determined that a child custody order is temporary
because it did not “determine all the issues[,]” the remaining, undecided issues were
child custody matters such as legal custody, ongoing holiday schedules, and the scope
of visitation for the noncustodial parent. See, e.g., id. at 644, 745 S.E.2d at 18 (“[The]
order [appealed from] did not address [the] father’s ongoing visitation, but rather
provided [the] father with only three specific instances of visitation in 2010. Nor did
the . . . order explicitly address legal custody. Thus, the order [did] not determine all
the issues and was a temporary order.” (citation and internal quotation marks
omitted; emphasis added); Sood v. Sood, 222 N.C. App. 807, 809, 732 S.E.2d 603, 606
(holding a custody order was temporary and did not determine all the issues because
“it did not resolve holidays for the indefinite future”) (emphasis added), cert. denied,
disc. review denied, and appeal dismissed, 366 N.C. 417, 735 S.E.2d 336 (2012);
Simmons v. Arriola, 160 N.C. App. 671, 675, 586 S.E.2d 809, 811 (2003) (“The initial
order in the present case does not specify visitation periods and, therefore, is
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incomplete and cannot be considered final.” (emphasis added)); see also Anzures v.
Walbecq, 781 S.E.2d 531 (2016) (unpublished), available at 2016 N.C. App. LEXIS 26(holding a custody order was temporary because it did not resolve holiday schedules
indefinitely and covered visitation only for a brief period). On the other hand, the
Court has concluded that a custody order was permanent if all issues relating to child
custody had been resolved, even if other matters remained pending. See, e.g., Brewer,
139 N.C. App. at 228, 533 S.E.2d at 546 (holding that an order was permanent
because, inter alia, “the court resolved every issue dealing with custody”). Likewise,
the plain language of section 50-19.1 permits immediate appeal where an order
“would otherwise be a final order . . . , but for the other pending claims in the same
action.” N.C. Gen. Stat. § 50-19.1. Thus, the clear intent of our General Assembly in
enacting the statute was to permit immediate appeal of, inter alia, permanent child
custody orders despite the existence of still-pending claims in the matter not related
to custody.
The order here resolves all issues related to child custody, providing for the
parties to share joint custody, with primary physical custody to Stasie, and sets out
a detailed schedule for visitation and holidays that covers the indefinite future:
A. The parties are awarded Joint Custody and [the
children] shall reside primarily with the Plaintiff/Mother.
B. The Defendant/Father shall have visitation on
alternating weekends from Friday when school is out until
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Monday when school takes back in and on each Wednesday
evening from the time school let[s] out until 8:00pm.
C. The Defendant/Father shall have four non-consecutive
weeks summer visitation and select his weeks by February
1 of each year.
D. The Defendant/Father is to have the children in odd
numbered years from 2pm Christmas [D]ay to 2pm New
Year’s [D]ay; the Plaintiff/Mother is to have the children
for a like time period in the odd numbered years and
Defendant/Father shall have the children in even
numbered years from the time school is out for the
Christmas break until 2pm Christmas Day; the
Plaintiff/Mother is to have the children for a like period of
time in the odd numbered years.
E. The Defendant/Father is to have the children on Union
County Spring/Easter school break during even numbered
years and odd years the fall break for [the] Union County
school system.
F. The children are to be with the Plaintiff/Mother
Thanksgiving from [the] time school is out until 3pm
Friday and the remainder of the Thanksgiving weekend
with the Defendant/Father.
G. The Defendant/Father shall in addition have the
following:
Visitation in odd years
1. Martin Luther King, Jr. Holiday from Friday-Monday;
to begin at school recess on Friday and continue until 6pm
on Monday.
2. Memorial Day from school recess on Friday before
holiday until 6pm of Memorial Day.
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3. Independence Day/4th of July school recess (if school is
in session) until 6pm of night before school is back in
session[.]
4. Minor child’s birthday from school recess (if school is in
session) until 8:30pm.
Visitation in even years
1. Easter break from school recess until 6pm of the night
before school resumes.
2. Labor Day from school recess until 6pm the night before
school resumes.
H. Mother’s Day to the Mother in all years from 10am until
6pm to supersede any other Visitation. Father’s Day to the
Father in all years from 10am until 6pm to supersede any
other Visitation.
Because the order resolves all issues regarding custody and visitation, was not
“entered without prejudice to either party[,]” and does not “state[] a clear and specific
reconvening time[,]” see Senner, 161 N.C. App. at 81, 587 S.E.2d at 677, it is a
permanent order and therefore immediately appealable under section 50-19.1.
Accordingly, Stasie’s appeal is properly before this Court on the merits.
Merits of Stasie’s Appeal
On appeal, Stasie argues that the district “court abused its discretion by
requiring [Stasie] to relocate to the former marital residence in Union County, when
the undisputed evidence was that neither party had lived in Union County for over a
year and the move would be highly disruptive to the children who were settled in
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Forsyth County with [Stasie] and her family.” We agree that the portion of the
district court’s order purporting to order Stasie to reside in Union County in the
former marital residence must be set aside.
Following the custody, visitation, and holiday provisions quoted above, the
court ordered:
I. Until the remaining issues are heard on the merits, the
children are to live in Union County, North Carolina and
the Defendant/Father is to continue to pay the mortgage
and utilities at the former marital residence. The Plaintiff
shall return to live with the children on or before March 1,
2016.
By its plain language, this portion of the order purports to order Stasie and the
children to move back to Union County from their current home in Forsyth County.2
Although the issue of whether our district courts can order a party in a child custody
proceeding to relocate to a specific location is a matter of first impression in this State,
the pertinent statutory and case law leads us to conclude that the district court here
acted in excess of its powers. Accordingly, we vacate paragraph I of the order.
Resolution of this appeal requires disentanglement of two closely related, yet
distinct matters: the authority of a court in a child custody case (1) to award primary
custody of a child and order visitation and (2) to control where a parent involved in a
2 As noted supra, at the time the order was entered, no party lived in Union County: the children
resided with Stasie in Forsyth County and John resided in Mecklenburg County.
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child custody matter may live. While the former is within the court’s discretion, the
latter is beyond the scope of the district court’s authority.
Chapter 50 of our General Statutes provides: “An order for custody of a minor
child entered pursuant to this section shall award the custody of such child to such
person, agency, organization or institution as will best promote the interest and
welfare of the child.” N.C. Gen. Stat. § 50-13.2(a) (2015). In fulfilling this directive,
a district court retains significant discretion:
The statute expresses the policy of the State that the best
interest and welfare of the child is the paramount and
controlling factor to guide the judge in determining the
custody of a child. . . .
In upholding the order of the [district] court we recognize
that custody cases generally involve difficult decisions.
The [district court] judge has the opportunity to see the
parties in person and to hear the witnesses. It is
mandatory, in such a situation, that the [district court]
judge be given a wide discretion in making his
determination, and it is clear that his decision ought not to
be upset on appeal absent a clear showing of abuse of
discretion.
In re Stancil, 10 N.C. App. 545, 548, 179 S.E.2d 844, 847 (1971) (citation and internal
quotation marks omitted).
However, while
[i]t is well established that [district court] judges are vested
with wide discretion in determining matters concerning
child custody[,] . . . . [t]he . . . judge’s discretion . . . can
extend no further than the bounds of the authority vested
in the . . . judge. In proceedings involving the custody . . .
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of a minor child, the . . . judge is authorized to determine
the party or parties to whom custody of the child shall be
awarded, whether and to what extent a noncustodial person
shall be allowed visitation privileges, . . . whether an order
for child custody or support shall be modified or vacated
based on a change in circumstances, and certain other
related matters. In addition, . . . judges have authority to
enforce orders concerning child custody . . . by the methods
set forth in [our General Statutes].
Appert v. Appert, 80 N.C. App. 27, 34, 341 S.E.2d 342, 346 (1986) (citations omitted;
emphasis added) (holding that “trial judges in this State do not have authority to
condition the receipt or payment of child support upon compliance with court-ordered
visitation”). In other words, in child custody cases, the General Assembly has granted
our district courts broad discretion and authority to (1) award custody of a child (and
enforce such awards), (2) order visitation for the noncustodial parent,3 and (3) resolve
“certain other related matters.” Id.; see also N.C. Gen. Stat. § 50-13.2(b) (“Any order
for custody shall include such terms, including visitation, as will best promote the
interest and welfare of the child.”).
Here, the district court determined, in its discretion, that the best interest of
the children was served by awarding primary physical custody to Stasie, with
significant visitation provided to John. That decision is not contested by either party.
The question before this Court is whether ordering Stasie and the children to relocate
3 Chapter 50 also contains provisions for custody and visitation for nonparent parties, such as
grandparents, in certain circumstances, but because those provisions are neither relevant nor
informative in this matter, we do not discuss them herein.
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to Union County is the type of “related matter” or “term” that forms the third major
prong of a district court’s authority in resolving a child custody dispute.
Certainly, child custody orders may include directives that facilitate an
ordered custody and visitation plan. See, e.g., Meadows v. Meadows, __ N.C. App. __,
__, 782 S.E.2d 561, 569 (2016) (approving term that a parent’s visits be supervised
and take place at a specific location to facilitate that supervision); Burger v. Smith,
__ N.C. App. __, __, 776 S.E.2d 886, 894 (2015) (approving a trial court’s ruling that,
during periods of scheduled visitation, the noncustodial parent could travel with the
child to Malawi where he worked as a missionary); Gerhauser v. Van Bourgondien,
238 N.C. App. 275, 277, 767 S.E.2d 378, 381 (2014) (noting in passing that a custody
order “included provisions regarding payment for the children’s travel expenses for
visitation”); Anderson v. Lackey, 166 N.C. App. 279, 603 S.E.2d 168 (2004)
(unpublished), available at 2004 N.C. App. LEXIS 1711 (reviewing an order of
contempt where a custodial parent allegedly violated terms of a custody order
requiring, inter alia, that she deliver the child to the other parent for visits and
discuss those visits in a positive manner with the child). Further, district court judges
regularly resolve disputes that directly implicate a child’s relationship with each
parent or academic and other activities. See, e.g., Cunningham v. Cunningham, 171
N.C. App. 550, 561, 615 S.E.2d 675, 683 (2005) (approving a restriction barring the
mother from using a specific babysitter who had been “interfering” with the children’s
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relationship with their father); Elrod v. Elrod, 125 N.C. App. 407, 411, 481 S.E.2d
108, 111 (1997) (holding that a district “court in a child custody proceeding is not
precluded from prohibiting in some circumstances, as a condition of the custody grant,
the home schooling of the children”) (citations omitted); MacLagan v. Klein, 123 N.C.
App. 557, 565, 473 S.E.2d 778, 787 (1996) (affirming the district court’s ruling
regarding disputes over a child’s religious training), disc. review denied, 345 N.C. 343,
483 S.E.2d 170 (1997). However, we have found no case in this State wherein a
district court judge purported to order a custodial parent and the minor children to
move from one county to another and to live in a specific house.
To be sure, our courts regularly consider the relocation (or proposed relocation)
of custodial parents when deciding whether to modify existing child custody orders.4
In these . . . instances the question arises whether the
person having custody of a child or to whom custody would
otherwise be granted is to be tied down permanently to the
state which awards custody. . . . The . . . court must make
a comparison between the two applicants considering all
factors that indicate which of the two is best-fitted to give
the child the home-life, care, and supervision that will be
most conducive to its well-being.
In evaluating the best interests of a child in a proposed
relocation, the . . . court may appropriately consider several
factors including: The advantages of the relocation in
4 Modification of child custody awards is a two-step process. “A court order for custody of a minor child
may be modified. . . . [if] the moving party shows there has been a substantial change in circumstances
affecting the welfare of the minor child. . . . Once . . . a substantial change in circumstances [is shown]
. . ., the . . . court must determine whether a change in custody is in the best interest of the child.”
Browning v. Helff, 136 N.C. App. 420, 423-24, 524 S.E.2d 95, 98 (2000) (citations, internal quotation
marks, some ellipses, and some brackets omitted).
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terms of its capacity to improve the life of the child; the
motives of the custodial parent in seeking the move; the
likelihood that the custodial parent will comply with
visitation orders when he or she is no longer subject to the
jurisdiction of the courts of North Carolina; the integrity of
the noncustodial parent in resisting the relocation; and the
likelihood that a realistic visitation schedule can be
arranged which will preserve and foster the parental
relationship with the noncustodial parent.
Evans v. Evans, 138 N.C. App. 135, 141-42, 530 S.E.2d 576, 580 (2000) (citation and
internal quotation marks omitted). As reflected in this language from Evans, where
a custodial parent has moved or plans to do so and the noncustodial parent objects,
our district courts have the authority to consider the factors quoted above and make
an award of custody accordingly. That is, a court may determine either (1) that
custody should remain with a parent who has relocated or (2) that it is in the child’s
best interest to switch custody to the parent who has not relocated. See, e.g., Green
v. Kelischek, 234 N.C. App. 1, 17, 759 S.E.2d 106, 116 (2014) (finding no abuse of
discretion in a district “court’s decision to modify the existing custody order such that
[the former noncustodial parent] is entitled to school year custody of [the child] if [the
former custodial parent] moves to Oregon”); O’Connor v. Zelinske, 193 N.C. App. 683,
691, 668 S.E.2d 615, 620 (2008) (finding no abuse of discretion in declining to change
primary custody while allowing the custodial parent “the option to relocate to
Minnesota. . . . [where] the advantages to the children outweigh the disadvantages”);
Cunningham, 171 N.C. App. at 561-62, 615 S.E.2d at 684 (finding no abuse of
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discretion in declining to change primary custody where the custodial parent planned
a possible move out of state in the future). Thus, if a court with jurisdiction in a child
custody matter believes that a parent’s relocation is not in the child’s best interest,
its recourse is to award primary custody to the other parent, as did the court in Green.
234 N.C. App. at 17, 759 S.E.2d at 116. However, district courts do not have authority
to order that a parent relocate (or refrain from doing so).
Our district courts may consider where each parent lives, along with any other
pertinent circumstances, in determining which parent should be awarded primary
custody to facilitate the child’s best interest. See Blackley v. Blackley, 285 N.C. 358,
362, 204 S.E.2d 678, 681 (1974) (noting that the district court “judge’s concern is to
place the child in an environment which will best promote the full development of his
physical, mental, moral and spiritual faculties”) (citations omitted). Put simply, a
district court must consider the pros and cons of ordering primary custody with each
parent, contemplating the two options as they exist, and then choose which is in the
child’s best interest. See Stanback v. Stanback, 266 N.C. 72, 76, 145 S.E.2d 332, 335
(1965) (“A judgment awarding custody is based upon the conditions found to exist at
the time it is entered.”) (emphasis added). However, a court cannot order a parent to
relocate in order to create a “new and improved” third option, even if the district court
sincerely believes it would be in the child’s best interest.
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In sum, the district court here was free to make findings of fact regarding the
relative benefits to the children of living with John in Mecklenburg County or with
Stasie in Forsyth County, and to rely on those factual findings in deciding which
parent should have primary physical custody. If the court believed Stasie’s residence
in Forsyth County rendered her the less beneficial choice to have primary custody of
the children, it had the discretion to award primary custody to John. However, the
court acted outside the scope of its authority in purporting to compel Stasie and the
children to move back to Union County and reside in the former marital residence.
Accordingly, we vacate paragraph I of the order.
VACATED IN PART.
Judge CALABRIA concurs.
Judge BRYANT concurs in result only.
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