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Farmer v. Farmer

Court of Appeals of North Carolina

June 6, 2017

TONY LEE FARMER, Plaintiff,
v.
ELLA DEMETRICE FARMER, Defendant.

          Heard in the Court of Appeals 8 February 2017.

         Appeal by defendant-mother from order entered 3 February 2016 by Judge William Moore in Robeson County District Court Robeson County, No. 06 CVD 2363.

          No brief filed for plaintiff-appellee father.

          Tiffany Peguise-Powers for defendant-appellant mother.

         

          ELMORE, Judge.

         Defendant Ella Demetrice Farmer ("Mother") appeals a custody modification order that also set aside a prior custody modification order. She argues the order should be vacated and this case remanded for a new hearing because no evidence was presented to support it. We vacate the portions of the order relating to custody modification and remand the case to the trial court for further fact-finding. In its discretion, the court may hear and consider additional evidence.

         I. Background

         Mother and Father married in Georgia in 2000 and separated in 2006. Two children were born of the marriage. About three months after separation, Father filed a complaint seeking split custody and child support.

         On 17 October 2006, the trial court entered an initial custody order awarding Mother primary legal and physical custody of three-year-old, Tracy, and one-year-old, Tommy, [1] and awarding Father visitation from Wednesday to Sunday during the last week of each month and for four non-consecutive weeks each summer. The court also ordered Father to pay $547.00 in child support per month. About two weeks later, the court amended its order and modified the visitation schedule, eliminating summer visitation and allowing Father alternating weekend visits until such time as visitation would be reconsidered on 2 March 2007 ("Initial Custody Order"). The record is unclear whether this reconsideration ever took place.

         About six years later, on 5 October 2012, Father filed a "Motion to Modify Custody/Visitation Order." Father alleged that the children "are old enough now to travel and stay overnight while visiting [him] in Georgia, " and requested "Custody/Visitation" be modified to replace alternating weekend visits with visitation rights essentially aligning with the children's school breaks. Father requested "Custody/Visitation" during even-numbered years for President's Day, one week during spring break, nine consecutive weeks during summer break, Columbus Day, Thanksgiving Day, and the second half of the children's Christmas break. During odd-numbered years, Father essentially requested the same schedule save for replacing visitation on Thanksgiving Day with Memorial Day, as well as replacing second-half visitation during the children's Christmas break with first-half visitation.

         Although the record indicates Father's motion was heard on 31 January 2013, a corresponding order was not entered until 22 January 2015 ("Jan. 2015 Order"). The Jan. 2015 Order failed to acknowledge the Initial Custody Order, stated the order arose from "[Father's] complaint for child custody" yet found "this matter is before this court pursuant to [Father's] motion to modify custody/visitation of the children, " and purported to make an initial custody and visitation determination, concluding "[i]t would be in the children's best interest that [Mother] have custody and control of the minor children and that [Father] exercise visitation . . . ." The Jan. 2015 Order awarded Mother primary custody of the children and awarded Father alternating weekend visitation, summer visitation for the entire month of July, alternating visitation for Thanksgiving, and visitation from 25 December until 2 January each year.

         On 3 March 2015, Father moved under Rule 60 to set aside the Jan. 2015 Order because it purported to make an initial custody determination, which had already been adjudicated in the Initial Order, and because it failed to address, inter alia, his "request to suspend every other weekend visitation" and "add additional summer visitation and holiday visits." Father alleged his purpose for filing the "Motion to Modify Custody/Visitation Order" was to "modify the visitation schedule to suspend weekend visits because [he] reside[d] in Georgia and [Mother] reside[d] in North Carolina, " and he was "financially unable to travel to and from Georgia every other Friday and Sunday to exercise visits with the minor children." Father also requested the court "clarify the Order by suspending weekend visits" and "increase [Father's] visitation . . . during summer and holidays."

         After a 1 June 2015 hearing on Father's motion, the court entered an order setting aside the Jan. 2015 Order due to mistake of circumstance, i.e., that Father lives six hours away, and modifying the visitation schedule ("Jun. 2015 Order"). Most relevant here, the Jun. 2015 Order eliminated weekend visitation, allowed Father visitation rights for certain school holidays and for eight consecutive weeks during summer break, and ordered that Father's "child support obligation . . . be suspended during . . . periods of custody."

         In response, on 29 June 2015, Mother filed motions to stay the Jun. 2015 Order and for a new trial or to reopen evidence, or, in the alternative, to set aside the Jun. 2015 Order on the basis of mistake and good cause. Mother alleged the Jun. 2015 Order should be set aside under Rule 60 because "there was no testimonial evidence presented at the hearing." Further, Mother alleged, because no evidence was presented, there was "no basis to modify the current [custody] order, " and because Father never filed a motion to modify child support, "the issue of child support was not properly before the [c]ourt and could not be addressed."

         Additionally, in her motions, Mother alleged that Father had not seen the children in almost three years, that the children "have sent hundreds of requests to come get them from [Father's] home over the last two . . . weeks, " and "have threatened to run away from [Father's] home." That same day, on 29 June 2015, the trial court entered an ex parte order granting temporary injunctive relief in Mother's favor, staying enforcement of the Jun. 2015 Order, reinstating the Jan. 2015 Order, and ordering Father to show cause on 10 July 2015 as to why Mother's motion for temporary relief should not be granted.

         It is unclear from the record who had custody of the children during this time, or whether the show cause hearing was ever held. It appears from a continuance order that, on 10 July 2015, the Father "had not yet been served with th[e] action, " and the court rescheduled the matter for 31 July 2015. It appears from a subsequent continuance order that, on 31 July 2015, Father still "had not yet been served with th[e] action, " but rather than rescheduling the matter, in its order the court decreed that its ex parte order "shall remain in full force and effect pending further orders of the court."

         On 23 October 2015, the court heard Mother's motions for a new trial or to reopen evidence, or, in the alternative, to set aside the Jun. 2015 Order. Father was present for this hearing. Mother argued that, at the 1 June 2015 hearing on Father's motion to set aside the Jan. 2015 Order, no evidence was presented or considered yet the court entered an order allowing Father's motion to set aside the order and significantly modified visitation. Further, Mother argued, the Jan. 2015 Order decreed that Father's child support obligations be suspended during periods when he had custody of the children; however, child support was never addressed at the hearing and there was no pending motion to modify child support. On or around 3 February 2016, the court entered an order ("Feb. 2016 Order") setting aside the Jun. 2015 Order on the basis that it improperly modified child support without a properly pending motion, dismissing as moot Mother's motions for a new trial or to reopen evidence, and drastically modifying visitation. Mother appeals.

         II. Analysis

         Mother contends the trial court erred by entering the Feb. 2016 Order because (1) "it was not based on any evidence" and (2) "neither party resided in Robeson County, " so "the court was without proper venue to rule in the case."

         A. Venue

         As an initial matter, Mother waived her right to challenge venue on appeal by participating in the Robeson County proceedings and never contesting venue. See Zetino-Cruz v. Benitez-Zetino, __ N.C.App. __, __, 791 S.E.2d 100, 104 (2016) ("[V]enue is not jurisdictional and may be waived." (citing Bass v. Bass, 43 N.C.App. 212, 215, 258 S.E.2d 391, 393 (1979) ("Plaintiff voluntarily appeared and participated in the 27 June 1977 hearing on child support. He did not object to the venue or move for change of venue. . . . [H]e waived it.")). Accordingly, we decline to address this challenge.

         B. Visitation Modification ...


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