North Carolina Lawyers Weekly
On plaintiff’s motion, Judge Marshall Bickett recused himself; thereafter, Judge James Randolph had no authority to grant plaintiff’s Rule 59 motion.
Although the first order granting the defendant-maternal grandmother custody of the plaintiff-mother’s child was entered in Florida, our courts have jurisdiction to modify custody because the child has been living here for years with defendant and because none of the parties involved still live in Florida.
Plaintiff’s appeal is dismissed in part; Judge Bickett’s May 16, 2016, order is affirmed; Judge Randolph’s orders are vacated and remanded.
Facts
Pursuant to a Florida law that makes it easier for a parent to temporarily give up custody to a relative and then to subsequently regain custody, plaintiff gave her mother temporary custody of plaintiff’s daughter, E.R.Q., pursuant to a temporary custody order (the Florida order) when E.R.Q. was a year old.
Later, defendant and E.R.Q. moved to North Carolina. Plaintiff had little contact with E.R.Q., and she moved to several states before settling in Virginia.
When E.R.Q. was seven years old, plaintiff filed this custody action in North Carolina. Judge Bickett entered an order (the Bickett order) concluding that plaintiff had “acted inconsistently with her constitutionally protected status to parent her child.”
Plaintiff moved for recusal. Judge Bickett recused, and Judge Randolph granted plaintiff’s motion for a new trial under N.C. R. Civ. P. 59 (the Randolph order). Judge Randolph then awarded custody to plaintiff (the 2017 order).
Subject Matter Jurisdiction
It is uncontested that North Carolina is E.R.Q.’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act. None of the relevant persons – E.R.Q., plaintiff, defendant, or E.R.Q.’s father (who is not a party to this appeal) – were residents of Florida at any time relevant to our jurisdictional analysis.
Because both conditions for modification jurisdiction pursuant to G.S. § 50A–203(2) were met, the trial court had jurisdiction to consider plaintiff’s action to modify the Florida order and to enter the various visitation and other orders entered in relation to the issue of E.R.Q.’s custody. Furthermore, Florida lost exclusive continuing jurisdiction because none of the relevant persons resided in Florida at any time relevant to plaintiff’s action.
When defendant moved E.R.Q. out of Florida and thereby violated Fla. Stat. § 61.13001(3)(f), this subjected defendant to contempt and other proceedings to compel the return of E.R.Q., but nothing in the Florida statute deprived the North Carolina trial court of jurisdiction in this case.
Even if defendant was a “person seeking to invoke” jurisdiction in North Carolina, and even if she engaged in “unjustifiable conduct” by moving with E.R.Q. to North Carolina, plaintiff clearly acquiesced to the jurisdiction of this state by registering the Florida order in North Carolina, and by filing her action here. G.S. § 50A-208. None of the orders entered prior to the Randolph order, including the Bickett order, were void for lack of subject matter jurisdiction.
Constitutional
Plaintiff has failed to preserve the issues of full faith and credit or what law controls for appellate review. This action was initiated by plaintiff’s motion to modify the Florida order, requesting modification pursuant to North Carolina law. During the ensuing three and a half years, which culminated in a 10-day trial, additional hearings, and entry of the Bickett order, plaintiff sought modification of the Florida order pursuant to G.S. § 50-13.7 and never gave the trial court any indication she believed the matter should be considered pursuant to Florida law.
Because plaintiff did not object based upon those issues at trial, those issues were not properly preserved as arguments for plaintiff’s Rule 59 motion for a new trial, and the trial court erred in considering them. This argument is dismissed.
We reject plaintiff’s argument that the trial court erred in concluding that she had acted inconsistently with her constitutionally protected status to parent her child. While plaintiff’s relinquishment of custody pursuant to the Florida order, standing alone, should not be considered an act contrary to her protected status as a parent, plaintiff’s subsequent actions reflect a lack of either ability or desire to take on even minimal continuing acts of parental love or responsibility.
The fact that plaintiff, after years of inaction, eventually decided to make a concerted effort to regain custody of E.R.Q. should be considered in the analysis but weighed in light of the many years in which plaintiff fully relinquished her parental duties to defendant. The determination that plaintiff’s conduct had been inconsistent with her constitutionally protected status as a parent was supported by clear and convincing evidence. The Bickett order is therefore affirmed and reinstated.
Randolph Order
Where plaintiff’s purported Rule 59 motion included bare allegations of errors pursuant to Rule 59(a), but where the motion did not allege any actual conduct that would support any of those bare allegations of error, the motion was not a proper Rule 59 motion for a new trial. Therefore, the trial court never obtained jurisdiction over the subject matter of plaintiff’s purported Rule 59 motion.
Furthermore, a judge who did not hear a case may not hear a Rule 59 motion for a new trial. Thus, it was error for Judge Randolph to consider plaintiff’s motion for a new trial.
Because Judge Randolph lacked subject matter jurisdiction to hear plaintiff’s Rule 59 motion, the Randolph order is void.
2017 Order
Judge Randolph’s 2017 order purported to terminate the Florida order and award full custody of E.R.Q. to plaintiff. However, before the 2017 order was entered, defendant had appealed the Randolph order, thereby divesting the trial court of jurisdiction to consider any issue related to custody of E.R.Q.
It appears E.R.Q. was erroneously removed from defendant on April 2, 2017, by a court without jurisdiction to do so. Physical custody of E.R.Q. must be returned to defendant.
Appeal dismissed in part, affirmed in part, vacated and remanded in part.
Quevedo-Woolf v. Overholser (Lawyers Weekly No. 011-285-18, 61 pp.) (Linda McGee, C.J.) (Wanda Bryant, J., concurring in the result only without separate opinion) Appealed from Rowan County District Court (Marshall Bickett & James Randolph, JJ.) Carolyn Woodruff and Jessica Snowberger Bullock for plaintiff; James Hoffman for defendant. N.C. App.
