Bohannan v. Mcmanaway
| Decision Date | 21 December 2010 |
| Docket Number | No. COA09–887.,COA09–887. |
| Citation | 705 S.E.2d 1 |
| Court | North Carolina Court of Appeals |
| Parties | Marvilyn B. BOHANNAN and Cecil L. Bohannan, Jr., Plaintiffs,v.Emily M. McMANAWAY and Johnnie Michael Murray, Defendants. |
OPINION TEXT STARTS HERE
Appeal by defendant Emily M. McManaway from orders entered 16 January 2009, 29 January 2009, and 7 April 2009 by Judge Joseph M. Buckner in Orange County Superior Court. Heard in the Court of Appeals 27 January 2010.
Coleman, Gledhill, Hargrave & Peek P.C., by Leigh Ann Peek, for plaintiffs and plaintiff-interveners.
Betsy J. Wolfenden for defendant Emily M. McManaway.
Emily McManaway (defendant) is the mother of child Bobby,1 and defendant Johnny Murray is the putative father. Bobby was born 30 August 2003 in Nevada, but defendant brought him to North Carolina on 16 September 2003. Cecil Bohannan is defendant's brother. Cecil Bohannan and his wife, Marvilyn (together, plaintiffs), took physical custody of Bobby. Defendant then returned to Nevada without Bobby. In March 2004, defendant asked plaintiffs to return Bobby to her in Nevada, which they did. Nevada Protective Services took custody of Bobby on 5 March 2006. After a hearing in Nevada, plaintiffs took custody of Bobby and returned to North Carolina. Plaintiffs arranged for plaintiff-interveners Johnny and Kristen Branch to care for Bobby. Plaintiffs then filed a complaint seeking custody of Bobby. This appeal, for the most part, stems from that complaint.
“The procedural quagmire that confronts us here is best unraveled by a chronological account of the proceedings in the trial court.” Bailey v. Gooding, 301 N.C. 205, 206, 270 S.E.2d 431, 432 (1980).
On 14 November 2003, a consent order was filed in Orange County. The consent order had file number 03 CVD 2183 and stated that the cause came “on to be heard ... during a regularly scheduled session of Civil District Court” and, “at the call of the calendar for trial, counsel indicated to the court that an Agreement with regard to the issues of child custody had been executed and was ready for entry of judgment[.]” The consent order decreed that Bobby would be “placed in the temporary joint legal and physical custody of Emily M. McManaway and Marvilyn and Cecil Bohannan Jr.,” and Bobby's primary residence would be with plaintiffs, with whom he had lived since 16 September 2003. The consent order also decreed that plaintiffs would “be responsible for providing health insurance for the minor child who is the subject of this action, and shall be vested with the authority to authorize and commission any and all health or medical care services as they deem fit and proper.” Both plaintiffs and defendant signed the consent order before notaries. The order contains the signature of District Court Judge M. Patricia DeVine.
Plaintiffs filed their complaint on 13 October 2006 in Orange County District Court. According to the complaint, the Court in Clark County, Nevada, and the Court in Orange County participated in a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) telephonic hearing on 27 September 2006 and determined that North Carolina had jurisdiction over Bobby. In the prayer for relief, plaintiffs asked the court to consolidate the action (06 CVD 1810) with the earlier action (03 CVD 2183), to place Bobby in their sole legal and physical custody, and to waive custody mediation. The complaint appears to have been properly served.
Defendant filed her answer and counterclaim on 17 November 2006. She asked that defendant Murray not be added as a party and that the court find “that the best and proper placement” for Bobby was with defendant. The answer includes a sheet titled “VERIFICATION” that states the following:
Emily McManaway, being first duly sworn, deposes and says that he/she is the Defendant in the foregoing action, that he/she has read the foregoing ANSWER and COUNTERCLAIM and knows the contents thereof to be true of his/her own personal knowledge except for those matters and things alleged therein upon information and belief; and as to those matters and things; he/she believes same to be true.
A notary in Clark County, Nevada, notarized the verification on 16 November 2006. The record also includes an affidavit of service of process by registered or certified mail, stating that defendant mailed by certified mail a copy of the answer to “Leigh Ann Peak [ sic ],” plaintiffs' attorney. The record also includes the return receipt, signed by an agent of Ms. Peek on 20 November 2006. Defendant also filed a petition to sue as an indigent, swearing that she was “financially unable to advance the costs of filing th[e] action or appeal.” The petition was denied as moot, with a notation that “no filing fee or other costs are required,” presumably because defendant was the defendant and therefore not suing anybody. This petition was filed in Orange County on 17 November 2006 and was denied by the Clerk of Superior Court on the same date.
Plaintiffs then issued notice by publication to defendant because she “did not answer the Complaint” and plaintiffs claimed that defendants McManaway and Murray were “concealing themselves or their whereabouts to avoid service of process, or are simply refusing service via Rule 5[.]”
The trial court entered a custody order on 15 March 2007 (the 2007 custody order) granting permanent custody of Bobby to plaintiffs. According to the custody order, the Postal Service returned calendar requests and notices of hearing for 2 January 2007 and marked “refused.” According to the order, after defendants did not appear at the 2 January 2007 hearing, plaintiffs used service by publication. Also, according to the order, neither defendant appeared at the March 2007 hearing. In the order, the trial court found “it appropriate to consolidate the November 2003 North Carolina action, 03 CVD 21 [3]3, with this action, in order that [defendant] Murray may be included as a proper party to this action involving the custody of the minor child.” On 5 July 2007 in Surry County, the plaintiff-intervener Branches filed a petition for adoption of a minor child, seeking to adopt Bobby. However, District Court Judge Spencer G. Key, Jr., later dismissed the Branches' petition for adoption for lack of subject matter jurisdiction.
On 15 October 2007, defendant filed a Rule 60 motion seeking relief from the 15 March 2007 custody order. According to the Rule 60 motion, plaintiffs' counsel misrepresented to the trial court that defendant had not filed an answer, that plaintiffs' alias and pluries summons was issued more than ninety days after the initial summons was issued on 13 October 2006, and that plaintiffs failed to exercise due diligence in ascertaining defendant's address or phone number. More disturbingly, the motion alleges that Judge Buckner never held a hearing on the matter in March 2007, despite the custody order's statement that he did hold such a hearing.
On 13 November 2007, Johnny Lee Branch and Kristin Bradley Branch filed a motion to intervene pursuant to Rule 24 as well as a motion for permanent custody. The Branches later moved to amend their motion to intervene to contain the allegation that they had “a parent-child relationship” with Bobby.
On 11 March 2008, defense counsel filed a motion to have Judge Buckner recused from hearing the case because he had committed various errors in handling the case, including: signing a custody order during calendar call, granting plaintiffs' prayers for relief without reviewing the court file, entering a court order out of session and without reviewing the court file to determine whether defendant had received proper notice, entering an order that recites that the matter had been heard before Judge Buckner in March 2007 when the clerk's log has no record of such a hearing, and entering an order containing false findings of fact. Defense counsel alleged that “the propriety of the entry of the March 15, 2007 Custody Order is at issue in this case” and that Judge Buckner should not hear the Rule 60 motion to ensure that defendant would receive an impartial hearing.
On 25 July 2008, defendant filed another motion to recuse, this time moving the court to recuse all of the district court judges in District 15–B (Orange County) from hearing any matters in the case. On 8 August 2008, she filed a motion requesting an outside judge to hear her motions to recuse. On 24 November 2008, defendant filed a Rule 12 motion to dismiss the instant action because the trial court did not have subject matter jurisdiction to enter the 2003 consent judgment and, thus, plaintiffs did not have standing to file the 2006 suit.
On 16 January 2009, Judge Buckner filed an order denying defendant's motions to recuse and motions for relief pursuant to Rule 60. On 29 January 2009, Judge Buckner granted the Branches' motion to intervene after finding that the Branches had an alleged parent-child relationship with Bobby and, thus, had standing to intervene as plaintiffs. On 13 February 2009, defendant filed her notice of appeal from the 16 January 2009 and 29 January 2009 orders.
On 2 February 2009, defendant filed a Rule 60(b)(4) motion for relief from the 2003 consent order, asking that it be set aside as void. On 5 February 2009, defendant filed a motion in the cause, alleging that the Orange County District Court was required to relinquish jurisdiction to Nevada pursuant to the Interstate Compact on the Placement of Children.
On 27 February 2009, the Branches filed a motion to stay the proceedings on defendant's 2 February 2009 Rule 60(b)(4) motion and 3 February 2009 motion in the cause. Judge Buckner granted this motion by order filed 7 April 2009. In that same motion, Judge Buckner denied defendant's various motions to continue and recuse as well as her motion for attorneys' fees.
On 15 April 2009, defendant filed her notice of appeal from the 6 April 2009 order denying her motions for attorneys' fees and motions to...
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