Bohannan v. McManaway. (Lawyers Weekly No. 10-07-1213, 29 pp.) (Rick Elmore, J.) Appealed from Orange County District Court. (Joseph M. Buckner, J.) N.C. App. Unpub. Click here for the full text of the opinion.
Holding: Where the March 15, 2007, custody order includes the patent falsehood that defendant had failed to file an answer, and where the trial court entered the permanent custody order without hearing testimony, the trial court abused its discretion when it denied defendant’s motion to set aside the order.
We reverse the trial court’s denial of defendant’s N.C. R. Civ. P. 60(b) motion.
The defendant-mother lives in Nevada. Plaintiffs are her brother and sister-in-law who live in Orange County. The mother granted custody of her son, “Bobby” who was born in Nevada on Aug. 30, 2003, to plaintiffs pursuant to a September 2003 custody order of questionable validity. The plaintiff-intervenors, the Branches, claim to have a parent-child relationship with Bobby.
Plaintiffs’ own brief on appeal recites the circumstances of the entry of the March 15, 2007, custody order as follows: “As no one appeared on behalf of either Defendant, and as neither Defendant had filed a legally effective answer to the Complaint as of that time, the Court instructed Appellee’s counsel to hand up an order based upon the verified pleadings.”
However, it is undisputed that the defendant-mother filed an answer on Nov. 17, 2006, and that she had served a copy of the answer on plaintiffs’ counsel.
Plaintiffs repeatedly stress that the answer was not signed or verified and was, therefore, not “legally effective.” However, plaintiffs cite no legal authority for this argument, and we find no legal requirement that an answer in a custody matter be verified. N.C. R. Civ. P. 11(a). Moreover, defendant’s answer clearly and specifically addressed the complaint by admitting some allegations, denying others and requesting specific relief, including that custody of the minor child be granted to defendant.
Despite everyone’s acknowledgment that this answer was filed with the trial court and served upon plaintiffs’ counsel, the 2007 order includes as finding of fact 4: “Neither Defendant has answered or even contacted Plaintiff’s attorney or the court.” Plaintiffs have not provided any explanation why such a finding, which is patently false, would be included in the 2007 order.
It is also undisputed that the trial court entered the 2007 custody order without hearing any evidence. This was error, even though defendant was not at the hearing to oppose the evidence or offer her own. An award of permanent custody may not be based upon affidavits.
A defendant’s failure to respond to discovery, verify his answer, or appear at the custody hearing does not preclude the trial court from resolving the issue of the plaintiff’s fitness to have custody or obviate the need for a hearing on that issue. A court cannot enter a permanent custody order without hearing testimony, and the trial court in this case should not have relied solely on the allegations in plaintiffs’ complaint with respect to Bobby’s custody.
Accordingly, we reverse the Jan. 16, 2009, order denying defendant’s motion for relief pursuant to Rule 60, and we vacate the 2007 custody order. We remand to the district court for a hearing on the issue of custody.
We are very disturbed by the numerous procedural errors in this custody case. Although we have no information in our record about the merits of this custody case and we express no opinion regarding the fitness of defendant as a parent or what custody arrangement would serve the best interests of the child, it is clear that this case has been seriously flawed from the start.
No complaint was filed in the case file in which the 2003 consent order was entered, nor does the 2003 consent order contain any findings of fact or conclusions of law which would begin to address the requirements of G.S. § 50A-201(a). The 2003 consent order itself reveals that North Carolina may not have been the “home state” of the child, as it includes as a finding that the child was born on Aug. 30, 2003 and “has resided in the home of Plaintiffs, with the Defendant, since September 16, 2003 [in] Saxapahaw, NC. …”
The time period from birth until Sept. 16, 2003, is conspicuously missing from the findings, but a finding regarding this time period was required in order for the court to determine if North Carolina was the child’s home state, as necessary for North Carolina to exercise child custody jurisdiction.
The parties cannot confer subject matter jurisdiction upon the court by entry of a consent order regarding child custody.
Therefore, although the 2003 consent order includes a conclusion of law that the district court has jurisdiction over the parties and subject matter of the proceeding, there appears to be no factual basis to support such a conclusion of law.
The 2003 consent order also states that the cause came “on to be heard … during a regularly scheduled session of Civil District Court” and “at the call of the calendar for trial, counsel indicated to the court that an Agreement with regard to the issues of child custody had been executed and was ready for entry of judgment. …”
However, plaintiffs acknowledge that there was no “cause” and the case was not heard during any regularly scheduled session of district court. By all accounts, the 2003 consent order, though entered by the district court, appears to be a fiction. Indeed, during oral arguments before this court, plaintiffs’ counsel acknowledged that the 2003 order was not valid.
Thus, although we do not hold the 2003 consent order to be void at this time because the trial court never ruled upon the defendant’s Rule 60(b)(4) motion as to that order, we strongly urge the trial court to consider the defendant’s arguments as to the 2003 consent order carefully on remand.
The Branches’ motion to intervene in this custody action made a single factual allegation to support a conclusion that a parent-child relationship existed between them and Bobby: “The minor child has resided in their physical care since March 2, 2007, and they have a continuing ongoing relationship with the minor child.”
The Branches did not actually make any allegation of a “parent-child relationship” in their motion; this allegation was added by amendment after Mr. Branch’s testimony, to conform the motion to his testimony. The motion includes no facts which would indicate the type of relationship the Branches have with Bobby.
Mr. Branch’s testimony indicated only that: Bobby had lived with the Branches since 2007, Bobby had bonded with Mr. Branch and his wife, Bobby had “really thrived,” and Mr. Branch “love[d] that boy with all [his] heart.”
We hold that these factual allegations are not sufficient to support a conclusion that a parent-child relationship existed between the Branches and Bobby. Accordingly, the Branches have not made a sufficient showing on this record to support a determination of standing to intervene in the matter, and the trial court erred by holding otherwise.
Even assuming arguendo that the Branches would have standing to file a motion to intervene in this custody action, the Branches were seeking to intervene to seek a modification of the 2007 custody order.
The Branches’ motion did not contain any grounds for modification of the 2007 custody order, nor did it allege any change in circumstances affecting the welfare of the child, much less a substantial change in circumstances. The motion also fails to allege why it would be in Bobby’s best interest to change custody. In addition, Mr. Branch’s testimony at the motion to intervene hearing demonstrated the opposite of a change of circumstances: He testified that Bobby was living with him and his wife at the time 2007 order was entered and that Bobby continued to live with them.
Reversed in part, vacated in part, affirmed in part.