Williams v. Walker , 185 N.C. App. 393 ( 2007 )

JACKSON, Judge.

This appeal arises out of competing custody orders entered in Illinois and North Carolina with respect to M.L.W., the minor child of Kendra Troy Williams (“plaintiff”) and Michael Lawrence Walker (“defendant”). For the following reasons, we affirm in part and reverse in part the trial court’s 6 October 2005 order.

M.L.W. (“the minor child”) was born in Wilmington, North Carolina, on 9 September 1992. At the time, plaintiff was in high school and determined that she was unable to provide adequate care for the minor child. Larry and Maria Walker (“the Walkers”), the minor child’s paternal grandparents and residents of Illinois, offered to care for the child, and around December 1992, plaintiff placed the minor child with the Walkers. On 7 April 1993, the Circuit Court of Cook County, Illinois (“the Illinois court”) entered an order granting guardianship and custody of the minor child to the Walkers. The Walkers have alleged that they have been the minor child’s primary caretakers since they were appointed as guardians and that the minor child continued to reside with them until 12 July 2002, when the minor child visited plaintiff in North Carolina and plaintiff refused to return him to the Walkers. Plaintiff has alleged .the minor child lived with her from April 1993 until 1996, when the Walkers took him to Illinois for a visit and refused to return him to North Carolina. Plaintiff also has alleged that while the minor child was in the Walkers’ custody, she maintained regular contact with him, purchased clothes and other items for him, and sent him cards on special occasions.

- Plaintiff has alleged that on 24 July 2001, she was served with a motion for parentage filed in Illinois by defendant, who, according to plaintiff, has spent little time with the minor child, despite acknowledging paternity. Thereafter, according to plaintiff, (1) a hearing was held in Illinois on 7 September 2001; (2) she was granted visitation with the minor child; (3) she visited the minor child in September 2001, but was not allowed to visit in October 2001, notwithstanding the Illinois court’s ordering visitations; (4) on 2 November 2001, she went to mediation in Illinois and the Walkers were present at the mediation; and (5) she and defendant reached a partial agreement at the mediation.

On 1 October 2002, plaintiff filed suit in the District Court of New Hanover County, North Carolina (“the North Carolina court”), requesting that the North Carolina court assume jurisdiction and modify the Illinois custody order. In her complaint, plaintiff alleged that the minor child’s home state is North Carolina and that Illinois no longer has any connection with the matter except that defendant continues to reside in Illinois.¹ On 30 May 2003, the Illinois court held a hearing on a motion for visitation violation filed by defendant. By order filed 14 July 2003, the Illinois court (1) granted defendant leave to transfer his motion in the pending case to North Carolina; and (2) removed the matter from its calendar. On 15 July 2003, the North Carolina court granted plaintiffs motion and entered an order (1) asserting jurisdiction as to custody and visitation of the minor child as a result of Illinois’ yielding jurisdiction to North Carolina; (2) granting plaintiff custody of the minor child; and (3) expressly retaining jurisdiction for the entry of further orders.

Thereafter, on 26 February 2004, the Illinois court entered an order granting defendant sole temporary custody of the minor child. In its order, the court found “that [defendant] stated that there are no matters pending in any other jurisdiction and that a prior matter in North Carolina had been closed.” On 22 April 2004, the Illinois court entered an order finding that the Walkers — the minor child’s legal guardians — were not made parties to the North Carolina custody action. The Illinois court presumed that North Carolina had not been made aware of the prior guardianship order granting custody to the Walkers. The Illinois court (1) ordered defendant to assist in securing a copy of the court file in the North Carolina action filed by plaintiff; and (2) continued the case to 25 June 2004.

On 21 July 2004, the Walkers (“intervenors”) filed a motion to intervene in the North Carolina court action, alleging that they “were appointed the legal guardians of the minor child in the State of Illinois on April 7, 1993.” Intervenors also filed a motion for relief from the North Carolina court’s 15 July 2003 order assuming jurisdiction. By order filed 20 August 2004, the North Carolina court granted the motion to intervene. On 6 October 2005, the North Carolina court entered an order concluding that (1) the State of Illinois had neither waived nor yielded jurisdiction to the State of North Carolina; and (2) North Carolina had no jurisdiction over the case. The court granted intervenors’ motion for relief and stayed the 15 July 2003 order asserting jurisdiction and granting custody to plaintiff. Plaintiff filed timely notice of appeal.

Plaintiff first contends that the North Carolina court erred in granting intervenors’ Rule 60(b) motion because intervenors lacked standing to bring the motion. We disagree.

“On appeal, this Court’s review of the trial court’s Rule 60(b) ruling ‘is limited to determining whether the trial court abused its discretion.’ ” Barton v. Sutton, 152 N.C. App. 706, 709, 568 S.E.2d 264, 266 (2002) (quoting Moss v. Improved Benevolent & Practice Order of Elks, 139 N.C. App. 172, 176, 532 S.E.2d 825, 829 (2000)). “Abuse of discretion is shown only when the court’s decision ‘is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ ” Id. at 710, 568 S.E.2d at 266 (quoting State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)).

In the instant case, plaintiff contends that intervenors had no right under the Uniform Child Custody and Jurisdiction Enforcement Act to bring a Rule 60(b) motion; rather, “the grandparents could only seek visitation under [North Carolina General Statutes, section] 50-13.5Q) by filing a motion in the cause and a showing of changed circumstances.” Plaintiff essentially argues that intervenors lacked standing to intervene and thus lacked standing to pursue their Rule 60(b) motion. Plaintiff, however, has not assigned error to the trial court’s order granting the motion to intervene, and the record contains no objection by plaintiff to the motion. Therefore, the trial court’s order granting the motion to intervene is binding on appeal. See N.C. R. App. P. 10(a) (2006).

“After intervention, an intervenor is as much a party to the action as the original parties are and has rights equally as broad. . . . Once an intervenor becomes a party, he should be a party for all purposes." Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C. App. 73, 78-79, 311 S.E.2d 1, 4-5 (1984) (emphasis added). The plain language of Rule 60(b) provides that “the court may relieve a party . . . from a final judgment.” N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005) (emphasis added). An intervening party thus has standing to seek relief from a judgment pursuant to Rule 60(b). See, e.g., Barton, 152 N.C. App. 706, 568 S.E.2d 264.² Therefore, intervenors in the inátant case had standing to seek relief pursuant to Rule 60(b) from the trial court’s 15 July 2003 custody order. Accordingly, plaintiff’s assignment of error is overruled.

In her second assignment of error, plaintiff contends that intervenors’ Rule 60(b) motion was untimely. However, plaintiff has failed to preserve this issue for appellate review.

Rule 60(b) of the North Carolina Rules of Civil Procedure provides that a court may relieve a party from a judgment or order because: (1) of mistake, surprise, or excusable neglect; (2) of newly discovered evidence that could not have been timely discovered by due diligence; (3) of fraud, misrepresentation, or other misconduct; (4) the judgment or order is void; (5) the judgment or order has been satisfied or discharged, or a prior judgment or order upon which it is based has been reversed or vacated; or (6) any other equitable justification for relief from the judgment or order. See N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). Rule 60(b) motions premised on subsections (1), (2), and (3) of Rule 60(b) must be made “not more than one year after the judgment, order, or proceeding was entered or taken.” N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). Rule 60(b) further requires that a motion based upon any of the subsections be made within a reasonable time. See id. “What constitutes a ‘reasonable time’ depends upon the circumstances of the individual case.” Nickels v. Nickels, 51 N.C. App. 690, 692, 277 S.E.2d 577, 578, disc. rev. denied, 303 N.C. 545, 281 S.E.2d 392 (1981).

In the case sub judice, the record contains no indication that plaintiff argued the timeliness of intervenors’ motion before the trial court. Plaintiff did not contend in her written Opposition to Motion for Relief from Judgment that the Rule 60(b) motion was untimely, and the trial court made no finding or ruling with respect to the issue of timeliness. Accordingly, this issue has not been preserved for our review. See N.C. R. App. P. 10(b)(1) (2006).

Finally, plaintiff challenges the North Carolina court’s conclusion — as well as the findings supporting its conclusion — that it was without jurisdiction to enter its 15 July 2003 order. Specifically, plaintiff assigns error to the following findings of fact from the North Carolina court’s 6 October 2005 order:

6. That at the time that Judge Smith heard this matter in North Carolina, there were still matters pending in the State of Illinois and all of Judge Smith’s rulings were dependent on whether or not Illinois was going to continue to maintain jurisdiction over the minor child the subject of this action.

8. That there had been some mentioning in one of the Illinois Orders previously of the guardianship, however, the court in Illinois, after having reviewed the guardianship, made the determination at that time that they retained jurisdiction of the case in the State of Illinois.

10. This Court finds that North Carolina has not had jurisdiction over this case, in that the Court in the State of Illinois determined that they never lost jurisdiction ....

Based upon these findings, the North Carolina court made the following conclusion of law, to which plaintiff assigns error: “The State of Illinois has neither waived nor yielded jurisdiction to the State of North Carolina, and the State of North Carolina has no jurisdiction to proceed with this matter.”

“Subject matter jurisdiction, a threshold requirement for a court to hear and adjudicate a controversy brought before it, is conferred upon the courts by either the North Carolina Constitution or by statute.” In re M.B., 179 N.C. App. 572, 574, 635 S.E.2d 8, 10 (2006) (internal quotation marks and citations omitted). North Carolina’s jurisdiction over child custody matters is governed by both the federal Parental Kidnapping Prevention Act (“PKPA”)³ and the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) as enacted in North Carolina. See In re Brode, 151 N.C. App. 690, 692-94, 566 S.E.2d 858, 860-61 (2002).

The UCCJEA is a jurisdictional statute, and the jurisdictional requirements of the UCCJEA must be met for a court to have power to adjudicate child custody disputes. The PKPA is a federal statute also governing jurisdiction over child custody actions and is designed to bring uniformity to the application of the UCCJEA among the states.

Foley v. Foley, 156 N.C. App. 409, 411, 576 S.E.2d 383, 385 (2003). “[T]he PKPA is applicable to all interstate custody proceedings affecting a prior custody award by a different state,” In re Van Kooten, 126 N.C. App. 764, 769, 487 S.E.2d 160, 163 (1997), appeal dismissed, 347 N.C. 576, 502 S.E.2d 618 (1998), and “[t]o the extent a state custody statute conflicts with the PKPA, the federal statute controls.” Brode, 151 N.C. App. at 694, 566 S.E.2d at 861.

Pursuant to the PKPA, “every State shall enforce ... and shall not modify . . . any custody determination or visitation determination made ... by a court of another State.” 28 U.S.C. § 1738A(a). The Act further provides that “[t]he jurisdiction of a court of a State which has made a child custody or visitation determination... continues as long as . . . such State remains the residence of the child or of any contestant.” 28 U.S.C. § 1738A(d). As the United States Supreme Court has noted, “[o]nce a State exercises jurisdiction consistently with the provisions of the [PKPA], no other State may exercise concurrent jurisdiction over the custody dispute, even if it would have been empowered to take jurisdiction in the first instance, and all States must accord full faith and credit to the first State’s ensuing custody decree.” Thompson v. Thompson, 484 U.S. 174, 176, 98 L. Ed. 2d 512, 518-19 (1988) (internal citation omitted).

In the case sub judice, the threshold inquiry with respect to subject matter jurisdiction is whether the North Carolina court’s 15 July 2003 order constitutes a modification of a prior order made consistently with the provisions of the PKPA. See 28 U.S.C. § 1738A(a). A child custody or visitation determination is consistent with the provisions of the PKPA only if: (1) the court making the determination has jurisdiction under the laws of its state; and (2) one of the following conditions is satisfied:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

28 U.S.C. § 1738A(c). If these conditions are met, the PKPA permits the North Carolina court to modify the original Illinois order only if: (1) North Carolina “has jurisdiction to make such a child custody determination”; and (2) Illinois “no longer has jurisdiction, or it has declined to exercise such jurisdiction.” 28 U.S.C. § 1738A(f). If the conditions set forth in section 1738A(c) are not satisfied, however, the UCCJEA, and not the PKPA, governs modification of the Illinois custody order. Given the dearth of evidence in the record concerning the Illinois court’s basis for its 7 April 1993 custody order, we cannot determine whether the original Illinois order was made consistently with the PKPA. However, it is clear that the Illinois court relinquished jurisdiction in its 14 July 2003 order to the North Carolina court and that the North Carolina court properly assumed exclusive jurisdiction over custody matters involving the parties’ minor child.

First, pursuant to the PKPA, a state court may modify a child custody order if: (1) the modifying state “has jurisdiction to make such a child custody determination”; and (2) the original “[s]tate no longer has jurisdiction, or it has declined to exercise such jurisdiction.” 28 U.S.C. § 1738A(f). As explained by one North Carolina federal court, “[a] determination must be made whether the second state court (North Carolina) itself has subject matter jurisdiction to decide custody matters. If the second state lacks jurisdiction to make an initial custody determination, it is axiomatic that it lacks authority to modify the prior decree of another state.” Meade v. Meade, 650 F. Supp. 205, 209 (M.D.N.C. 1986), aff’d, 812 F.2d 1473 (4th Cir. 1987). Here, the North. Carolina court had jurisdiction to make such a child custody determination as required by section 1738A(f)(l). In the order granting intervenors’ motion for relief, finding of fact number 3, which is not challenged and thus is binding on appeal, states that the minor child has resided with plaintiff in North Carolina since 12 July 2002. Thus, the minor child resided with a parent for a period of more than six months immediately preceding the commencement of the instant custody proceeding, and as such, North Carolina is properly the minor child’s home state pursuant to both the PKPA and the UCCJEA as codified in North Carolina. See 28 U.S.C. § 1738A(b)(4); N.C. Gen. Stat. § 50A-102(7) (2005). Therefore, North Carolina had jurisdiction to make such a custody determination. See 28 U.S.C. § 1738A(c)(2)(A)(ii); N.C. Gen. Stat. § 50A-201(a)(l) (2005); see also Meade, 650 F. Supp. at 209 (“Thus the presence of ‘home state’ jurisdiction under North Carolina law confers authority on the state court to make a custody determination in this case.”).

“However, the existence of jurisdiction in North Carolina to make an initial custody award does not enable the North Carolina court to modify [Illinois’] prior decree unless the requirements of Section 1738A(f)(2) are satisfied . . . .” Meade, 650 F. Supp. at 209 (internal quotation marks and citation omitted). By order entered 14 July 2003, the Illinois court “granted [defendant] leave to transfer this case to the pending case in the State of North Carolina” and removed the matter from its calendar. As such, the Illinois court relinquished jurisdiction over the instant custody matter.⁴ Cf. Krier v. Krier, 676 So. 2d 1335, 1338 (Ala. Civ. App. 1996) (holding that the Alabama court had jurisdiction to modify a prior Kansas custody order pursuant to section 1738A(f) “because the Kansas court had declined to exercise jurisdiction in favor of allowing the Alabama court to decide the issues”). Therefore, when the North Carolina court entered its custody order on 15 July 2003, North Carolina acquired jurisdiction to the exclusion of Illinois. See Thompson, 484 U.S. at 176, 98 L. Ed. 2d at 518 (noting that the PKPA prohibits concurrent jurisdiction once one state exercises jurisdiction consistent with the PKPA).

Next, pursuant to the UCCJEA, one of the means by which a North Carolina court may modify a custody determination of another state is if the North Carolina court finds that the court of the other state determines it no longer has exclusive, continuing jurisdiction. See N.C. Gen. Stat. § 50A-203 (2005); see also In re N.R.M., 165 N.C. App. 294, 300, 598 S.E.2d 147, 151 (2004). As this Court has noted, “ ‘the original decree State is the sole determinant of whether jurisdiction continues. A party seeking to modify a custody determination must obtain an order from the original decree State stating that it no longer has jurisdiction.’ ” N.R.M., 165 N.C. App. at 300, 598 S.E.2d at 151 (quoting N.C. Gen. Stat. § 50A-202 cmt.).

In N.R.M., this Court determined that Arkansas, the original decree state, had not declined jurisdiction and that as a result, North Carolina lacked subject matter jurisdiction. See id. Specifically, this Court noted that “there is no Arkansas order in the record stating that Arkansas no longer has jurisdiction” and that Arkansas clearly indicated it was not declining jurisdiction. See id. Unlike N.R.M., however, the record in the instant case contains an order filed by the Illinois court on 14 July 2003 relinquishing exclusive jurisdiction over the custody of the minor child. As discussed supra, the Illinois court granted defendant leave to transfer his motion for visitation violation to North Carolina, which involved not only visitation but also custody. The Illinois court thus ordered: “This matter is taken off call.” Although the Illinois court subsequently held a hearing during which it learned of intervenors’ guardianship, the Illinois court’s attempt to recapture jurisdiction was ineffectual. After the Illinois court relinquished jurisdiction on 14 July 2003, the North Carolina court possessed exclusive, continuous jurisdiction over the matter, and in its 15 July 2003 order, the North Carolina court expressly retained jurisdiction for the entry of further orders in this matter.

In sum, we hold that the North Carolina court correctly determined on 15 July 2003 that it possessed jurisdiction to grant custody of the minor child to plaintiff. Accordingly, we reverse the North Carolina court’s 6 October 2005 order, which stayed its prior 15 July 2003 order.

Plaintiff’s remaining assignments of error not argued in her brief are deemed abandoned. See N.C. R. App. P. 28(b)(6) (2006).

Affirmed in part; and Reversed in part.

Judge STEELMAN concurs. Judge WYNN dissents in a separate opinion.

1 . The complaint, however, also alleges that “[t]he Defendant is a resident of Puerto Rico,” and the North Carolina court found that defendant “is in the military currently stationed in Puerto Rico.”

2 . Much as in the instant case, the intervening party in Barton filed its Rule 60(b) motion prior to the trial court’s ruling on its motion to intervene. See Barton, 152 N.C. App. at 708, 568 S.E.2d at 265.

3 . We note that plaintiff fails to address the PKPA in her brief. Failure to argue the PKPA has been addressed by the Supreme Court of Pennsylvania:

Distressingly, while both parties address the' jurisdictional prerequisites of the UCCJA [the predecessor to the UCCJEA] at Sections 5344 and 5355, neither party addresses the PKPA, a disturbing omission because this statute is a controlling authority regarding whether Pennsylvania has jurisdiction to modify the Texas decree. Ordinarily, this failure would result in our inability to address the matter, as it would be deemed waived. However, while Father does not specifically address the PKPA, he at all times questioned whether the trial court should have declined jurisdiction. In that way, he raised the general issue of whether the trial court had subject matter jurisdiction to hear the Petition. Moreover, since this issue implicates the courts’ subject matter jurisdiction to modify a Texas custody and visitation determination, this Court can raise the matter sua sponte, as it can not be waived.

In re Adoption of N.M.B., 764 A.2d 1042, 1045 n.1 (Pa. 2000) (internal citation omitted).

4 . We note that the Illinois court transferred defendant’s visitation violation to North Carolina. As such, it could be argued that Illinois only declined to exercise jurisdiction with respect to a visitation determination. See 28 U.S.C. § 1738A(h) (“A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State . . . has declined to exercise jurisdiction to modify such determination."). However, the Illinois court expressly granted leave to transfer the case into the North Carolina case, which involved a complaint requesting that the North Carolina court assume jurisdiction over visitation and custody. Accordingly, the requirements of section 1738A(f)(2) are satisfied, and section 1738A(h) is inapplicable.