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Booker v. Strege

Court of Appeals of North Carolina

November 7, 2017

DANA BOOKER, Plaintiff,
v.
RYAN STREGE, Defendant.

          Heard in the Court of Appeals 23 February 2017.

         Appeal by defendant from orders entered 24 November 2015 and 8 February 2016 by Judge Susan Dotson-Smith in District Court, Buncombe County. No. 14 CVD 5143.

          The Tanner Law Firm, PLLC, by James E. Tanner III, for plaintiff-appellee.

          Emily Sutton Dezio, for defendant-appellant.

          STROUD, Judge.

         The trial court properly exercised subject matter jurisdiction under the UCCJEA and its findings of fact support the conclusion of a substantial change of circumstances affecting the welfare of the children so modification of the prior custody order was appropriate. We therefore affirm.

         I. Background

         On 5 April 2011, plaintiff-mother and defendant-father entered into a "CONSENT JUDGMENT FOR CUSTODY AND PARENTING TIME" in Michigan agreeing to joint legal custody of their two children with the "children's legal residence" being with their mother and their home state designated as Michigan. On 29 October 2013, another consent order was entered in Michigan allowing plaintiff and the children to move to North Carolina. The court in Michigan noted it "will retain continuing exclusive jurisdiction over this action" and "neither party will file to move or change jurisdiction from the Wayne County Circuit Court for all issues of custody and parenting time for at least five (5) years from the date of entry of this Order." On 1 December 2014, the parties signed one final consent order in Michigan primarily regarding parenting time and the court determined the order "resolves all claims between the parties, and closes the case."

         Also on 1 December 2014, plaintiff filed a "PETITION FOR REGISTRATION OF FOREIGN CHILD CUSTODY ORDER" in North Carolina to register the Michigan orders; defendant's address was noted as South Dakota. On or about 3 February 2015, defendant filed an objection to the petition "on the basis that there is an active case in Michigan[.]" On 2 March 2015, the trial court "registered and confirmed" all three of the Michigan orders.

         On 4 March 2015, plaintiff then filed a "MOTION TO DETERMINE THE RESIDENCES OF THE PARTIES FOR PURPOSES OF JURISDICTION" and thereafter a motion to enforce the registered Michigan orders. On 5 June 2015, defendant responded to plaintiff's motion to enforce with a motion to dismiss because North Carolina did not have personal jurisdiction over him. On 19 June 2015, plaintiff responded to defendant's motion to dismiss requesting it be denied due to waiver because of defendant's February 2015 written objection filed with the court and defendant's attorney's six court appearances on his behalf. Defendant had not raised a defense of a lack of personal jurisdiction in his objection or at the court appearances. On 26 June 2015, the court ultimately denied defendant's motion to dismiss based on lack of personal jurisdiction but concluded as a matter of law it did not have subject matter jurisdiction and dismissed Plaintiff's Motion to Enforce the registered judgment because the motion did not present "an issue ripe for the Court to intervene[.]"

         On 21 July 2015, defendant moved for modification of custody, requesting that the children be primarily placed with him in South Dakota, and for contempt because plaintiff had not allowed him his full summer visitation. On 24 November 2015, the court entered an interim child custody order concluding that North Carolina was the home state; there had been "a substantial change in circumstances affecting the welfare of the minor children" so it was appropriate to modify the last Michigan order; and it was in the best interest of the children for the parties to share legal custody with plaintiff having primary physical custody. On 8 February 2016, the court entered a custody order determining that North Carolina was the home state; there had been "a substantial change in circumstances affecting the welfare of the minor children" so it was appropriate to modify the last Michigan order; and it was in the best interest of the children for the parties to share legal custody with plaintiff having primary physical custody. Defendant appeals both the 24 November 2015 interim order and the 8 February 2016 custody order.

         II. Subject Matter Jurisdiction

         Defendant first makes two arguments on appeal contending that North Carolina did not have subject matter jurisdiction to enter two custody orders. Oddly, it was defendant who filed for modification of custody in North Carolina; nonetheless, a party cannot confer subject matter jurisdiction on a court merely by requesting relief in it. See In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) ("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." (citations, quotation marks, brackets, and ellipses omitted)).

Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal. Subject-matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. Subject-matter jurisdiction derives from the law that organizes a court and cannot be conferred on a court by action of the parties or assumed by a court except as provided by that law.

McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010) (citations and quotation ...


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