in the Court of Appeals 14 November 2018.
by defendant from order entered 22 September 2017 by Judge
Sean P. Smith in District Court, Mecklenburg County. No. 16
CVD 543 (SPS)
McElroy & Diehl, P.A., by Preston O. Odom, III, Jonathan
D. Feit, and Haley E. White, for plaintiff-appellee.
& Budd, Attorneys at Law, PLLC, by Jennifer L. Fleet, for
appeals from an order granting Mother's "motion to
deny" his motion to modify custody. Because the trial
court must consider the allegations of Father's motion
for modification of custody as true, it erred by dismissing
Father's motion for failure to state a claim upon which
relief could be granted. The trial court considered matters
outside of the pleadings, evidence, and record to make a
determination that it would deny Father's motion if a
hearing were held. We therefore must reverse the trial
court's order and remand for a hearing on Father's
case arises out of a prolonged dispute between Mother and
Father. They have one child, and custody of that child is the
subject of this appeal. A permanent custody trial was held in
January 2017 before the Honorable Alicia D. Brooks.
Judge Brooks announced her ruling at the end of the trial,
but the Permanent Custody Order was not entered until 29
March 2017; the findings were necessarily based upon the
evidence presented and circumstances existing in January
2017. One of the primary factual issues in the trial was the
parties' difficulties in sharing physical custody of the
child. In particular, Father was employed by Skechers, and
his work required him to travel out of town frequently-over
100 nights per year in 2015, and approximately 40 nights in
2016, and Father anticipated traveling the same amount in
2017. Because his travel schedule was irregular, he often
requested to change existing plans for visitation, while
Mother wanted to keep a regular visitation schedule. The
parties' communications about the schedule changes were
often acrimonious. The Permanent Custody Order awarded Mother
primary physical and legal custody and set out a detailed
secondary custodial schedule for Father.
filed a motion to modify the Permanent Custody Order on 18
April 2017 and Mother filed a "motion to deny" and
for Rule 11 sanctions on 5 May 2017. Father filed a reply on
26 May 2017 and also requested sanctions and attorney's
fees. On 19 June 2017, the Honorable Sean P. Smith held a
hearing on several pending motions, including a motion for a
Temporary Parenting Arrangement. Father presented testimony
during this portion of the hearing. After Father's
testimony, near the end of the hearing, the trial court took
up the issue of the "motion to deny" Father's
motion for modification of custody. Without hearing further
evidence regarding the allegations of the motion to modify,
the trial court considered the motion based upon the
pleadings and arguments of counsel. Judge Smith did not rule
on the motion to deny during the hearing but indicated that
he wanted to talk to Judge Brooks before making his ruling.
Later on 19 June 2017, the trial court indicated via email
that he was granting Mother's "motion to
dismiss." The trial court's order granting
Mother's motion was entered on 22 September 2017, and
Father timely appealed.
brief states that the ground for appellate review is:
Judge Smith's 20 September 2017 Order, granting
Plaintiff's Motion to Deny Defendant's Motion for
Modification of Child Custody is a final judgment. Appeal
therefore lies with the Court of Appeals pursuant to N.C.
Gen. Stat. § 7A-27(b)(2).
argues Father's appeal should be dismissed as
interlocutory because "claims for PSS, alimony, and
equitable distribution indisputably remain pending for
resolution below." Mother is correct that there are
other pending claims in the same action, but N.C. Gen. Stat.
§ 50-19.1 permits this appeal:
Notwithstanding any other pending claims filed in the same
action, a party may appeal from an order or judgment
adjudicating a claim for absolute divorce, divorce from bed
and board, child custody, child support, alimony, or
equitable distribution if the order or judgment would
otherwise be a final order or judgment within the meaning of
G.S. 1A-1, Rule 54(b), but for the other pending claims in
the same action.
N.C. Gen. Stat. § 50-19.1 (2017) (emphasis added). The
trial court's order "would otherwise be a final
order . . . within the meaning of G.S. 1A-1, Rule 54(b)"
because it is a final determination of the custody claim.
Accordingly, the trial court's 22 September 2017 order is
Standard of Review
parties disagree on whether Mother's "motion to
deny" was a motion to dismiss or a motion for summary
judgment. The "motion to deny" did not cite to any
Rule of Civil Procedure and did not identify any specific
legal basis for denial of the motion to modify. The trial
court did not indicate that it considered matters outside the
pleadings, so it did not treat the motion as a motion for
summary judgment. See Carolina Bank v. Chatham Station,
Inc., 186 N.C.App. 424, 427, 651 S.E.2d 386, 388 (2007).
This Court has stated that "[d]ismissal of a motion to
modify child support when only the allegations in the motion
and the court file are considered by the trial court is a
summary procedure similar to judgment on the pleadings."
Devaney v. Miller, 191 N.C.App. 208, 212, 662 S.E.2d
672, 675 (2008). "A trial court's ruling on a motion
for judgment on the pleadings is subject to de novo
review on appeal." Samost v. Duke Univ., 226
N.C.App. 514, 517, 742 S.E.2d 257, 259 (2013),
aff'd, 367 N.C. 185, 751 S.E.2d 611 (2013).
[T]he trial court is required to view the facts and
permissible inferences in the light most favorable to the
nonmoving party. All well pleaded factual allegations in the
nonmoving party's pleadings are taken as true and all
contravening assertions in the movant's pleadings are
taken as false. All allegations in the nonmovant's
pleadings, except conclusions of law, legally impossible
facts, and matters not admissible in evidence at the trial,
are deemed admitted by the movant for purposes of the motion.
Wife's "motion to deny" simply denied the
allegations of Father's motion and alleged that there had
been no substantial change of circumstances since entry of
the Permanent Custody Order. At the end of the hearing, the
trial court stated it was considering the motion as a motion
to dismiss "for essentially failing to state a claim
upon which relief may be granted" which refers to the
standard set by N.C. Gen. Stat. §1A-1, Rule 12(b)(6).
The trial ...