in the Court of Appeals 8 February 2017.
by defendant-mother from order entered 3 February 2016 by
Judge William Moore in Robeson County District Court Robeson
County, No. 06 CVD 2363.
brief filed for plaintiff-appellee father.
Tiffany Peguise-Powers for defendant-appellant mother.
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.
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.
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,
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.
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.
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.
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
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."
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
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
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."
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
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."
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.
Visitation Modification ...