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Stern v. Stern

Court of Appeals of North Carolina

March 19, 2019

LORA ANN STERN, Plaintiff,
v.
GARY ROSS STERN, Defendant.

          Heard in the Court of Appeals 14 November 2018.

          Appeal by defendant from order entered 22 September 2017 by Judge Sean P. Smith in District Court, Mecklenburg County. No. 16 CVD 543 (SPS)

          James, McElroy & Diehl, P.A., by Preston O. Odom, III, Jonathan D. Feit, and Haley E. White, for plaintiff-appellee.

          Weaver & Budd, Attorneys at Law, PLLC, by Jennifer L. Fleet, for defendant-appellant.

          STROUD, JUDGE

         Father 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 motion.

         I. Background

         This 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[1] 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.

         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.[2] 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.

         II. Jurisdiction

         Father's 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).

         Mother 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 reviewable.

         III. Standard of Review

         The 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.

Id.

         Here, 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 ...


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