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Gerhauser v. Van Bourgondien

Court of Appeals of North Carolina

December 31, 2014

LARA GERHAUSER (formerly VAN BOURGONDIEN), Plaintiff,
v.
MARTIN R. VAN BOURGONDIEN, Defendant

Heard in the Court of Appeals: September 9, 2014.

Appeal by plaintiff from orders entered 13 June 2013, 28 June 2013, and 3 December 2013 by Judge James P. Hill in District Court, Moore County, No. 02 CVD 1315.

Wyrick Robbins Yates & Ponton LLP by Tobias S. Hampson and K. Edward Greene, for plaintiff-appellant.

Doster, Post, Silverman, Foushee, Post & Patton, P.A. by Jonathan Silverman, for defendant-appellee.

STROUD, Judge. Chief Judge MCGEE concurs. Judge BRYANT dissents in a separate opinion.

OPINION

Page 379

STROUD, Judge.

Page 380

Plaintiff appeals from three orders entered by the trial court, the first two modifying custody of the parties' two minor children, and the third addressing post-trial motions filed by plaintiff. For the reasons below, the trial court did not have modification jurisdiction under N.C. Gen. Stat. § 50A-201(a) (2013). Accordingly, we vacate the trial court's orders entered on 13 June 2013, 28 June 2013, and 3 December 2013.

I. Background

The parties were married in 1998 and later that year, Mary[1] was born. The next year they had a son, Daniel. During the marriage, the parties and children lived in Moore County, North Carolina. In 2002, the parties separated, and on 23 September 2002, plaintiff filed a complaint in Moore County seeking custody of the children as well as other claims that are not relevant to this appeal. Defendant counterclaimed for custody also. On or about 16 January 2003, the Moore County District Court entered a consent order that granted joint custody of the children to both parties, with primary physical custody to plaintiff; this order also resolved the other pending claims between the parties.

On 9 July 2003, plaintiff was remarried to Charles Gerhauser. On 27 September 2004, defendant filed a motion for temporary custody or, in the alternative, modification of the prior custody order. In this motion, defendant alleged that plaintiff had remarried to Mr. Gerhauser and that due to his military service, plaintiff was planning to move to either Hawaii or California. Defendant sought to prevent plaintiff from removing the children from North Carolina. Plaintiff, Mr. Gerhauser, and the children moved to Hawaii on or about 30 October 2004. After a series of motions and temporary orders addressing plaintiff's move to Hawaii and other issues not relevant to this appeal, on 6 December 2004, the Moore County trial court entered a consent order addressing plaintiff's move to Hawaii with the minor children that modified the visitation schedule to provide for longer visits with defendant during holidays and spring and summer school breaks.

In 2005, defendant remarried, to Karen. On 10 August 2009, defendant and Karen moved to Palm Harbor, Florida. On 30 October 2009, plaintiff filed a motion to modify custody, alleging that she and the children had moved " back to the continental United States[,]" [2] that defendant had moved to Florida, and that defendant had failed to pay for or provide transportation for visitation when he was supposed to do so, resulting in missed visits, and requested that defendant be ordered to pay for all transportation and that his visits be " decreased to a number that he will actually use." On 18 December 2009, defendant also filed a motion to modify custody, alleging that he lived in Palm Harbor, Florida and that plaintiff lived in Lehi, Utah. He also alleged that plaintiff had interfered with his visitation and communication with the children and that the children wanted to reside with him.

On 18 August 2010, the Moore County District Court entered a consent Memorandum of Judgment that was incorporated into a formal consent order entered on 27 September 2010. This consent order modified the visitation schedule. The trial court found that " [d]efendant now resides in Florida" and that " [p]laintiff and the minor children now reside in Lehi, Utah and have for several years." The order granted the parties joint legal custody, with plaintiff having primary physical custody and defendant secondary physical custody. The order set out a schedule

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with long visitation periods during summer breaks and school holidays and included provisions regarding payment for the children's travel expenses for visitation.

In December 2011, Mr. Gerhauser moved to Germany pursuant to a military deployment due to his service in the Utah Army National Guard as a liaison officer to the Special Operations Command in Stuttgart, Germany. On or about 28 February 2012, plaintiff moved to Germany to join him, taking the minor children of the parties as well as the four children born to their marriage. Plaintiff did not tell defendant about the move to Germany until she was already there.

On 27 March 2012, defendant filed a motion for contempt, to modify visitation and custody, and for payment for travel expenses, alleging that he had received an email from plaintiff after her move to Germany and that she had not discussed the move with him nor did she provide an address to contact the children until 8 March 2012. Based on defendant's motion, the trial court entered an order to appear and show cause that required plaintiff to appear with the minor children on 21 May 2012 in Moore County District Court. In response, plaintiff filed a motion to dismiss, for judgment on the pleadings, for sanctions, and to modify child support. She alleged that her move to Germany did not cause any need for a change to visitation and that she could not take the children out of school to come to court on 21 May 2012. She also alleged that defendant's motion to modify was frivolous and requested that " [s]anctions be imposed against [d]efendant and his [a]ttorney."

On 25 June 2012, defendant filed an amended motion to modify custody and for contempt. He alleged that North Carolina continued to have " exclusive jurisdiction over the issue of child custody" pursuant to N.C. Gen. Stat. § 50A-202 (2011). He also made allegations regarding plaintiff's move to Germany without informing him in advance, her failure to inform him regarding the children's address, healthcare providers, or any details of Mr. Gerhauser's assignment in Germany with the United States Army and that she had alienated the children from defendant in various ways and interfered with his communication with them.

On 13 August 2012, the hearing upon plaintiff's and defendant's pending motions began; it resumed on 25 October 2012, and counsel made closing arguments on 1 November 2012. The trial court took the case under advisement and entered a " Memorandum of Decision" on 13 June 2013, which was incorporated into a formal order entered on 28 June 2013.[3] In the order, although neither party had raised any question regarding the trial court's jurisdiction over the custody matter, the trial court recognized the issue presented by the fact that neither the parties nor the children had resided in North Carolina for several years. The trial court therefore included various findings of fact and conclusions of law regarding jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (" UCCJEA" ). The trial court found that Utah had been the children's home state as of 28 February 2012, but as of the date of commencement, they had moved to Germany and their absence from Utah was not a temporary absence. The trial court ultimately determined that " [t]his Court therefore has jurisdiction to modify the 'Consent Order for Modification of Child Custody and Visitation' of September 27, 2010, pursuant to N.C.G.S. 50A-202(b) and 50A-201(a)(2)." The trial court granted to defendant primary legal and physical custody of the children, subject to visitation with plaintiff.

On 24 June 2013, plaintiff filed a motion for new trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 (2013), alleging several grounds for new trial. She also filed two affidavits that included detailed allegations regarding various irregularities that she claimed impaired her ability to present her evidence at trial as well as factual allegations disputing various findings of fact. She also

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averred various changes in the circumstances of the children during the time between the trial and the trial court's entry of the order, alleging that many of the circumstances upon which the trial court had based the change of custody had changed because the family had moved to a new residence in Germany. On 11 July 2013, plaintiff filed an additional motion, for new trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59, for relief from judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 (2013), for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1415 (2013), and a motion for stay. This motion included allegations regarding the nine-month delay between the trial and the entry of the judgment and changes in circumstances during that time and, for the first time, directly raised the issue of the trial court's jurisdiction to modify custody under the UCCJEA. Plaintiff alleged that

North Carolina does not have jurisdiction of this matter under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as codified in North Carolina at N.C.G.S. § 50A-101 et seq. Specifically, the state of Utah has continuing exclusive jurisdiction over this matter in that Utah is the home state of the children on the date of the commencement of the proceeding and had been for the 6 months before the commencement of the proceeding and any absence from the State of Utah is and was temporary and did not deprive Utah of jurisdiction. This Court specifically found Utah was the residence of Plaintiff and where the children resided. This Court erroneously determined the children and Plaintiff were not " temporarily absent" due to Plaintiff's husband's military deployment to Germany, which is governed by a Status of Forces Agreement with Germany (which places significant restrictions on Plaintiff's presence and ability to remain, work and reside in Germany), on the basis there was no specific date certain for a return to the United States. However, this fact itself assumes the deployment is and was temporary--and certainly was so at the time of the commencement of this modification action which occurred weeks after Plaintiff's relocation to be with her deployed husband and that Plaintiff had no intent or expectation to remain permanently in Germany, even if there is no specifically set date for return. Therefore, Utah held exclusive, continuing jurisdiction over this matter. Consequently, the custody modification ordered by this Court is void for lack of subject matter jurisdiction.

On 9 September 2013, the trial court heard plaintiff's post-trial motions, and on 3 December 2013, the trial court entered a single-spaced, 23-page order denying plaintiff's motions. The trial court had the benefit of a trial transcript when considering plaintiff's motions and addressed each of plaintiff's claims of irregularity in detail, rejecting each one. The trial court also concluded that it had jurisdiction under the UCCJEA, although for a different reason than stated in the 28 June 2013 Order. But for purposes of this appeal, the relevant issue is the trial court's subject matter jurisdiction under the UCCJEA, and we will confine our analysis of the orders to that issue, as addressed in detail below. On 27 December 2013, plaintiff filed notice of appeal from the 13 June 2013 Memorandum of Decision, the 28 June 2013 Order, and the 3 December 2013 Order.

II. Appellate Jurisdiction

Plaintiff has filed notice of appeal from three orders: the 13 June 2013 Memorandum of Decision, the 28 June 2013 Order, and the 3 December 2013 Order. The 13 June 2013 Memorandum of Decision appears to be a transcription of the trial court's oral findings, conclusions of law, and decretal provisions, which were then repeated nearly verbatim in the formal order entered on 28 June 2013. As it was written, signed by the trial court, and filed with the Moore County Clerk of Court on 13 June 2013, it would appear that entry of the order actually occurred on 13 June 2013. See N.C. Gen. Stat. § 1A-1, Rule 58 (2013) (" [A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court." ). Plaintiff timely filed her Rule 59 motion for new trial on Monday, 24 June 2013.[4] Plaintiff's

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time to appeal from the 13 June 2013 Order as well as the 28 June 2013 Order was tolled by the Rule 59 motion. See Wolgin v. Wolgin, 217 N.C.App. 278, 281, 719 S.E.2d 196, 198-99 (2011). Because plaintiff filed her motion for new trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 on 24 June 2013, the time for appeal from both of the June 2013 orders was tolled pending disposition of the motion; we need not be concerned about which order--13 June or 28 June--is the modification order, for purposes of this appeal. The notice of appeal was timely filed after disposition of the Rule 59 motion and we have jurisdiction to address the appeal on the merits.

III. Trial Court Jurisdiction under the UCCJEA

Plaintiff argues first that the " Trial Court Erred in Determining North Carolina has Jurisdiction under the UCCJEA in its Initial Custody Order" and next that the " Trial Court Erred in its Order on Plaintiff's Post-Trial Motions by Making a 'Clerical' Correction which altered the entire basis of Jurisdiction under the UCCJEA." In our review of the trial court's denial of plaintiff's Rule 59 motions as to " lack of subject matter jurisdiction," the lower court's findings of fact are binding on this Court when supported by competent evidence; we review its conclusions of law de novo. Hammond v. Hammond, 209 N.C.App. 616, 631, 708 S.E.2d 74, 84 (2011); Burton v. Phoenix Fabricators & Erectors, Inc., 194 N.C.App. 779, 782, 670 S.E.2d 581, 583, disc. rev. denied, 363 N.C. 257, 676 S.E.2d 900 (2009).

Jurisdiction rests upon the law and the law alone. It is never dependent upon the conduct of the parties. Subject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel, and therefore failure to object to the jurisdiction is immaterial. Because litigants cannot consent to jurisdiction not authorized by law, they may challenge jurisdiction over the subject matter at any stage of the proceedings, even after judgment. Arguments regarding subject matter jurisdiction may even be raised for the first time before this Court.

In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (citations and quotation marks omitted).

Plaintiff's second argument is that the trial court referred to its change in the basis for jurisdiction under the UCCJEA in the 3 December 2013 Order as a correction of a " clerical error," but it is actually a substantive change and thus not a proper ground for modification of the 28 June 2013 Order. We need not address this second argument in detail. The trial court did not merely cite an incorrect subsection of N.C. Gen. Stat. § 50A-201 in the 28 June 2013 Order; the trial court quoted large portions of the statute in detail and made findings of fact and conclusions of law based upon the provisions of N.C. Gen. Stat. § 50A-201(a)(2), concluding that " [t]his Court therefore has jurisdiction to modify the 'Consent Order for Modification of Child Custody and Visitation' of September 27, 2010, pursuant

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to N.C.G.S. 50A-202(b) and 50A-201(a)(2)."

In the 3 December Order, the trial court made additional findings of fact addressing the jurisdictional issue, again quoted relevant statutory provisions, and reached a different conclusion of law, after having the benefit of the parties' post-trial affidavits and arguments regarding jurisdiction. In that order, the trial court concluded that " [t]his Court therefore has jurisdiction to modify the 'Consent Order for Modification of Child Custody and Visitation' of September 27, 2010, pursuant to N.C.G.S. 50A-202(b) and 50A-201(a)(4)." Considering each order as a whole, the change from the 28 June 2013 Order is clearly substantive and well beyond a " clerical" correction under N.C. Gen. Stat. § 1A-1, Rule 60. It is true that the effect of the order was unchanged, as the decretal provisions did not change. But the trial court did not merely make a typographical error when referring to 50A-201(a)(2) instead of 50A-201(a)(4).

The court's authority under Rule 60(a) is limited to the correction of clerical errors or omissions. Courts do not have the power under Rule 60(a) to affect the substantive rights of the parties or correct substantive errors in their decisions. Ward v. Taylor, 68 N.C.App. 74, 314 S.E.2d 814, disc. rev. denied, 311 N.C. 769, 321 S.E.2d 157 (1984); Vandooren v. Vandooren, 27 N.C.App. 279, 218 S.E.2d 715 (1975). We have repeatedly rejected attempts to change the substantive provisions of judgments under the guise of clerical error.

Hinson v. Hinson, 78 N.C.App. 613, 615, 337 S.E.2d 663, 664 (1985), disc. rev. denied, 316 N.C. 377, 342 S.E.2d 895 (1986).

But ultimately, whether the trial court should or should not have made any changes to the original order as to jurisdiction, our inquiry is still the same: we must review de novo whether there was any ground for the exercise of subject matter jurisdiction under the UCCJEA, whether under N.C. Gen. Stat. § 50A-201(a)(2) as stated by the 28 June 2013 Order, N.C. Gen. Stat. § 50A-201(a)(4) as stated by the 3 December Order, or some other basis. See Foley v. Foley, 156 N.C.App. 409, 412, 576 S.E.2d 383, 385 (2003) (" Because the trial court's sole basis for exercising subject matter jurisdiction is erroneous, we may review the record to determine if subject matter jurisdiction exists in this case." ); Reece v. Forga, 138 N.C.App. 703, 704, 531 S.E.2d 881, 882, disc. rev. denied, 352 N.C. 676, 545 S.E.2d 428 (2000) (" [A] court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking." ).

In her briefs before this Court, plaintiff argues that the trial court erred in concluding that it had jurisdiction under N.C. Gen. Stat. § 50A-201(a)(4) because Utah was the children's " home state" on 27 March 2012, the date of commencement of this modification proceeding.[5] Defendant responds that the trial court properly concluded under N.C. Gen. Stat. § 50A-201(a)(4) that " [n]o court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3)." See N.C. Gen. Stat. § 50A-201(a)(4). For the reasons discussed below, we believe there is a third way.

A. Initial Child Custody Jurisdiction

i. Statutory Framework

N.C. Gen. Stat. § 50A-202 sets out when North Carolina has " [e]xclusive, continuing jurisdiction" over a custody proceeding:

(a) Except as otherwise provided in G.S. 50A-204, a court of this State which has made a child-custody determination consistent with G.S. 50A-201 or G.S. 50A-203 has exclusive, continuing jurisdiction over the determination until:
(1) A court of this State determines that neither the child, the child's parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or
(2) A court of this State or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this State.
(b) A court of this State which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination

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only if it has jurisdiction to make an initial determination ...

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