Balawejder v. Balawejder

• Decision Date: 18 October 2011
• Docket Number: No. COA11–184.,COA11–184.
• Parties: Witold BALAWEJDER, Plaintiff, v. Anita BALAWEJDER, Defendant.
• Court: North Carolina Court of Appeals

721 S.E.2d 679

Witold BALAWEJDER, Plaintiff,

v.Anita BALAWEJDER, Defendant.

No. COA11–184.

Court of Appeals of North Carolina.

Oct. 18, 2011.

Appeal by plaintiff from orders entered on or about 10 June 2010 and 1 October 2010 by Judge Becky T. Tin in District Court, Mecklenburg County. Heard in the Court of Appeals 1 September 2011.

Billie R. Ellerbe, Charlotte, for plaintiff-appellant.

Myers Law Firm, PLLC, Charlotte, by Matthew R. Myers, for defendant-appellee.

STROUD, Judge.

Witold Balawejder (“plaintiff”) appeals from the trial court's orders modifying child custody, awarding permanent child support, and awarding attorney's fees to Anita Balawejder (“defendant”). For the following reasons, we affirm the trial court's order modifying child custody and awarding child support and vacate the trial court's orders for attorney's fees.

I. Background

Plaintiff and defendant were married on 17 January 1998 in Sweden and moved to Charlotte, North Carolina in 2005. One child was born of the marriage on 26 September 2005. On 9 December 2008, plaintiff filed a complaint against defendant alleging claims for divorce from bed and board, child custody, child support, and equitable distribution. On or about 23 December 2008, defendant filed her answer, raising counterclaims for child custody, child support, post separation support, divorce from bed and board, alimony, attorney's fees, and raising motions for injunctive relief and “sequestration of real property [.]” On 26 December 2008, defendant filed a “Complaint and Motion for Domestic Violence Protection Order” pursuant to N.C. Gen.Stat. Chapter 50B against plaintiff, alleging that plaintiff had grabbed her, pushed her down a flight of stairs, and then tried to prevent her from calling 911. On the same day, the district court issued an “Ex Parte Domestic Violence Order of Protection” against plaintiff, finding that “the minor child was at the residence during the assault and knew the defendant had pushed the plaintiff.” On 29 January 2009, the trial court consolidated plaintiff's Chapter 50 complaint with defendant's Chapter 50B domestic violence complaint.

On 26 March 2009, the trial court entered a handwritten “Memorandum of Judgment/Order” (“the 26 March 2009 memorandum”) signed by both parties and their attorneys which stated that it resolved the issues of child custody and visitation “as a final order” and provided for temporary child support and sequestration of the marital residence; the memorandum specifically reserved the issues of equitable distribution, alimony, and attorney fees for later determination. On 15 September 2009, the trial court entered an order for temporary child support, post-separation support, temporary injunctive relief, and attorney fees. On 18 December 2009, plaintiff filed a motion for modification of the custody provisions of the 26 March 2009 memorandum. On 20 January 2010, defendant filed her response to plaintiff's motion for modification, requesting that the trial court deny plaintiff's motion and award reasonable attorney fees. On or about 10 June 2010, the trial court entered its “Order for Permanent Child Custody and Support” granting in part and denying in part defendant's motion to modify the 26 March 2009 memorandum and ordering permanent child support. On 13 July 2010, plaintiff filed notice of appeal from the trial court's 26 March 2009 memorandum, the 10 June 2010 “Order for Permanent Child Custody and Child Support[,]” and from the order “entered on July 2010[sic] that awarded Defendant attorney fees[.]” On 1 October 2010, the trial court filed an order awarding attorney's fees to defendant and a “supplemental order for attorney's fees” awarding further attorney's fees to defendant “for expenses incurred during trial and in preparing the final Custody and Child Support Order[.]” On appeal, plaintiff raises several arguments as to the 10 June 2010 order for permanent custody and child support and the orders awarding attorney fees to defendant.

II. Permanent or Temporary Custody Order

In his first argument, plaintiff contends that the trial court should have treated the 26 March 2009 memorandum as a temporary custody order, instead of considering the matter as a modification of a permanent custody order. If the 26 March 2009 memorandum was a temporary custody order, the trial court should have considered only the best interests of the minor child, and not whether there had been a substantial change of circumstances affecting the best interests of the child since the time of entry of the 26 March 2009 memorandum. We have stated that

[t]he trial court has the authority to modify a prior custody order when a substantial change in circumstances has occurred, which affects the child's welfare. The party moving for modification bears the burden of demonstrating that such a change has occurred. The trial court's order modifying a previous custody order must contain findings of fact, which are supported by substantial, competent evidence. The trial court is vested with broad discretion in cases involving child custody, and its decision will not be reversed on appeal absent a clear showing of abuse of discretion. In determining whether a substantial change in circumstances has occurred: [C]ourts must consider and weigh all evidence of changed circumstances which effect or will affect the best interests of the child, both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child. In appropriate cases, either may support a modification of custody on the ground of a change in circumstances.

Karger v. Wood, 174 N.C.App. 703, 705–06, 622 S.E.2d 197, 200 (2005) (citations, brackets, and quotation marks omitted), appeal dismissed, 360 N.C. 481, 630 S.E.2d 665 (2006).

Despite the fact that plaintiff filed a motion for modification of the 26 March 2009 memorandum, which alleges various substantial changes in circumstances since entry of the memorandum, he claims that the 26 March 2009 memorandum was actually not a permanent order, but he did not have an opportunity to challenge the trial court's decision to treat the 26 March 2009 memorandum as a permanent child custody order because (1) he could not appeal to this Court from that order as he believed the order to be interlocutory, as the order did not dispose of all of the claims and there was no N.C. Gen.Stat. § 1A–1, Rule 54(b) certification from the trial court that it was a “final judgment[;]” (2) by the time the trial court indicated at the hearing that it was considering the 26 March 2009 memorandum as a permanent child custody order “the time for the [plaintiff] to either file a Rule 52 or 59 motion to wet [sic] the order aside, or enter notice of appeal ... had long since expired[;]” (3) “[s]ince the [plaintiff] and Counsel didn't believe that the memorandum/order constituted a final order, [plaintiff] didn't file for relief pursuant to Rule 60 of the North Carolina Rules of Civil Procedure [;]” and (4) because of its decision to consider the prior order a permanent order, the trial court “informed [plaintiff's] Counsel that it would be necessary for the [plaintiff] to file a Motion for Modification of the memorandum, which was in fact done on 18 December 2010[sic].” Plaintiff concludes that “[t]he Court's decision to sua sponte treat the 26 March 2009 order [as a permanent child custody order] with no input from the parties was reversible error that eventually subjected the Plaintiff to dual standards of ‘substantial change in circumstances' and ‘best interest of the child’ in the trial of his motion for modification to modify the 26 March 2008[sic] memorandum/order.” Defendant counters that the 26 March 2009 memorandum was a “final order” and plaintiff “should be estopped from challenging its finality.”

We first note that the transcript upon which plaintiff's argument regarding the trial court's alleged “sua sponte” determination that the 26 March 2009 memorandum was a permanent order is not in the record before us. Plaintiff argues that this occurred at a court date in July 2009, when “the court informed the parties that she considered the 26 March 2009 memorandum of judgement/order to be a permanent custody order be necessary for the Appellant to file a Motion for Modification of the memorandum, which was in fact done on 18 December 2010.” There is no transcript in the record from July 2009, and thus plaintiff's arguments regarding what the trial court “informed” the parties in July 2009 is in violation of North Carolina Rule of Appellate Procedure Rule 9(a). We have stated that

“[i]t is the duty of the appellant to ensure that the record is complete.” Hicks v. Alford, 156 N.C.App. 384, 389, 576 S.E.2d 410, 414 (2003). Rule 9(a)(1)(j) of the Rules of Appellate Procedure requires that the record on appeal in civil actions contain “copies of all other papers filed and statements of all other proceedings had in the trial court which are necessary to an understanding of all errors assigned unless they appear in the verbatim transcript of proceedings....”

First Gaston Bank of North Carolina v. City of Hickory, 203 N.C.App. 195, 198, 691 S.E.2d 715, 718 (2010). To the extent that plaintiff's argument is based upon an alleged ruling by the trial court in July 2009, it is dismissed.

Aside from his argument regarding the trial court's alleged July 2009 ruling, plaintiff's argument on appeal is opposite from his position before the trial court. Plaintiff signed the 26 March 2009 memorandum, agreeing with its terms which plainly state that it “resolves as a final order the issues of custody and visitation” and, inter alia, that “the provisions of this Memorandum are fair and reasonable and [plaintiff] has had ample opportunity to obtain legal advice concerning the legal effect and terms of this Memorandum [.]” (emphasis added.) Additionally, plaintiff's attempt to change his custodial rights as...