Malone-Pass v. Schultz

868 S.E.2d 327

Kelly MALONE-PASS, Plaintiff,

v.David SCHULTZ, Defendant.

No. COA20-911

Court of Appeals of North Carolina.

Filed December 7, 2021

Culbertson & Associations, Greensboro, by K.E. Krispen Culbertson, for plaintiff-appellant.

No brief filed by defendant-appellee.

STROUD, Chief Judge.

¶ 1 Kelly Malone-Pass ("Mother") appeals from an amended order granting David Schultz ("Father") sole legal and physical custody of their two minor children and denying Mother visitation with the children. Mother first argues the trial court lacked subject matter jurisdiction or should have declined to exercise it under North Carolina General Statute § 50A-208(a). N.C. Gen. Stat. § 50A-208(a) (2019). Mother then challenges Findings of Fact and Conclusions of Law that she acted inconsistently with her constitutionally protected status as a parent, that Father was a fit and proper person to have sole legal and physical custody, that granted Father sole legal and physical custody, and that determined it was not in the children's best interest to have visitation with Mother. After de novo review, we hold the trial court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") and that North Carolina General Statute § 50A-208(a) ’s jurisdictional bar does not apply here. In addition, we hold that the trial court's Findings of Fact support its ultimate Findings and Conclusions of Law that it was in the children's best interest for Father to have sole legal and physical custody and for Mother to have no visitation, and the trial court did not abuse its discretion by entering this order. Therefore, we affirm.

I. Background

¶ 2 The uncontested Findings of Fact in this case show the proceedings in North Carolina started when Mother filed a petition to register a foreign child custody order from New York in late 2017.¹ The New York custody order granted Mother and Father joint custody, with the children, D.S. and A.S.,² living primarily with Father, and set out visitation schedules. The New York order also required the parties to register the order in North Carolina within seven days and stated that "New York State is relinquishing jurisdiction." The North Carolina trial court "asserted and assumed jurisdiction from New York over the minor children and the parties," finding at the time "both parties and the children resided in North Carolina."

¶ 3 Later, "both parties filed subsequent motions and countermotions for North Carolina to assert jurisdiction, civil contempt, and motions to modify child custody due to a substantial change in circumstances affecting the welfare of the minor children." Mother's motion alleged she was a resident of both New York and of North Carolina. Over the course of 2018 and into early 2019, the trial court entered a number of orders that granted Father temporary custody of the children and set various visitation schedules for Mother. Mother failed to appear at one of these hearings. Also during 2018, both parents moved, Father to Summerville, South Carolina and Mother to Massachusetts.

¶ 4 In March 2019, Mother, claiming residence in Massachusetts, filed a domestic violence action against Father in Massachusetts and obtained a domestic violence protective order from the Massachusetts court; this order also granted her emergency temporary custody of the children. Pursuant to the Massachusetts order, Mother traveled to South Carolina, took custody of the children, and brought them to Massachusetts with her. In response, Father filed before the North Carolina trial court an emergency motion to suspend Mother's visitation, alleging that Mother had made fraudulent claims before the Massachusetts court. The Massachusetts court then dismissed the action and dissolved its orders nunc pro tunc. The same day as the Massachusetts court's action, the North Carolina trial court held a hearing on the issue. The North Carolina court ordered the children be returned to Father's custody in compliance with its previous orders and notwithstanding the Massachusetts action because North Carolina was the only state with subject matter jurisdiction regarding child custody.

¶ 5 Following the Massachusetts incident, the trial court held multiple hearings over the course of April 2019, culminating in the May 2019 order and amended order. On 3 April 2019, the trial court held an in-chambers discussion with the children about the Massachusetts incident and found the children:

are very upset with ... Mother for taking them from South Carolina. The anger had not subsided; however, during the course of the conversation, the court determined that they still loved their [M]other. The minor children did not want to visit with their [M]other, however, they understood the court was likely to order visitation. It was clear that they wanted the visits to be in South Carolina if there was going to be visitation. They did not want to travel to Massachusetts. The minor children gave no indication that ... Father had influenced them in any way or talked negatively about ... [M]other.

The court also barred Mother and Father from asking the children about the in-chambers conversation between the court and the children. Following the hearing, the court allowed Mother to take the children to lunch. At the lunch, among other events, Mother asked the children about the in-chambers conversation they had with the court, thereby violating the court's order. The trial court made an unchallenged Finding of Fact that the lunch "added further toxicity to the relationship" between the children and Mother. Following that lunch, Father filed a motion to suspend Mother's visitation, and the court held a hearing on that motion on 11 April 2019. The April hearings culminated in an amended order on 9 May 2019 granting temporary joint custody to Mother and Father with Father having temporary legal and physical custody of the children. The trial court set a visitation schedule for Mother, but it also stated: "The minor children will not be forced to visit with [Mother] if they choose not [to] do so and they must inform ... [Mother] of their desire not to visit with [Mother]. " (Bold and italics in original.)

¶ 6 The court held a final hearing on the motions for modification of the New York custody order on 14–16 August 2019. The day before the hearing, Mother filed a motion to dismiss alleging the court lacked subject matter jurisdiction, and she then renewed that motion in court at the beginning of the hearing. Mother argued that New York had subject matter jurisdiction, not North Carolina, that Father had committed fraud by telling the New York court he would live permanently in North Carolina with the children, and that the New York court would be the best place to address the fraud issue. In Findings of Fact and a Conclusion of Law which Mother challenges on appeal, the trial court found North Carolina had subject matter jurisdiction to modify the New York custody order and therefore denied Mother's motion to dismiss. The trial court's ruling was based on unchallenged Findings of Fact that Father and the children moved to North Carolina in March 2017 and lived there continuously for more than six months before the action was filed, that Mother previously acknowledged and averred to those facts, and that the New York order specifically stated the parties were required to register the order in North Carolina within seven days and that New York was relinquishing jurisdiction.

¶ 7 Following the hearing in mid-August 2019, the trial court appointed a Guardian Ad Litem ("GAL") so that the children's "voices could be heard." The GAL spoke with both parties and the children and prepared a report for the court. The court held a hearing about the GAL's report in September 2019 where it received her report into evidence, heard testimony about it, and allowed the parties the opportunity to question the GAL. Mother was not present at the hearing without explanation, and Father had his attorney present although the attorney did not ask the GAL any questions.

¶ 8 The August and September 2019 hearings led to the trial court's order now on appeal, the "Order on Motions to Modify Custody/Contempt," in November 2019. (Capitalization altered.) The order granted Father sole legal and physical custody of the children, denied Mother visitation because it was not in the best interest and welfare of the children, and dismissed the contempt issues as moot. To support those orders, the trial court made numerous unchallenged Findings of Fact. Beyond the issues discussed above, the trial court made the following unchallenged Findings of Fact by "clear, cogent and convincing evidence." (Underline in original.)

¶ 9 First, the trial court made Findings about the children's living arrangements with Father. The children lived with Father from the start of the case, and Father and the children moved to North Carolina with the previous family therapist's approval. The trial court further found the children were doing well with Father. The court noted that prior to the Massachusetts incident, "The children were not in any danger. They were very happy in the home of ... [F]ather. They were doing well in school." The children also continued to do well in their Father's care following the time their Mother took them to Massachusetts, with the court finding at the time of the order:

174. The minor children are doing well in their [F]ather's care. They are both doing well in school and are happy in the home of their [F]ather and step-mother.

175. [A.S.] developed encopresis which had been treated following the removal and placement in foster care in Colorado.^[3] It recurred and he had a few incidents after ... [M]other removed him from South Carolina with the Massachusetts order which was subsequently dismissed. It is stress related and he is having less stress since the visitation [with Mother] had stopped.

176. They are doing much better now in therapy. They enjoy the

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