Graham v. Jones

• Decision Date: 07 April 2020
• Docket Number: No. COA19-511,COA19-511
• Citation: 842 S.E.2d 153,270 N.C.App. 674
• Parties: Wanda GRAHAM and George L. Graham, Plaintiffs, v. Stephanie JONES, Defendant.
• Court: North Carolina Court of Appeals

270 N.C.App. 674

842 S.E.2d 153

Wanda GRAHAM and George L. Graham, Plaintiffs,

v.Stephanie JONES, Defendant.

No. COA19-511

Court of Appeals of North Carolina.

Filed: April 7, 2020

Fairman Family Law, Durham, by Kelly Fairman, for Plaintiffs-Appellees.

North Carolina Central University School of Law Clinical Legal Education Program, by Nakia C. Davis, Esq., for Defendant-Appellant.

COLLINS, Judge.

Defendant appeals a custody order granting her full physical and legal custody, care, and control of her minor child but granting the minor child's grandparents visitation. Defendant argues that the trial court erred by proceeding with a best interest of the child analysis after granting Defendant full physical and legal custody, care, and control of the child and, based on this analysis, erred by granting Plaintiffs visitation with the child. For the reasons stated below, we reverse the trial court's order and dismiss the custody action.

I. Factual Background

Wanda Graham and George L. Graham ("Plaintiffs") are the paternal grandparents¹ of Abby.² Abby was born on 8 February 2018 to Plaintiffs' son, Christopher Tice Butler, Jr. ("Christopher"), and Stephanie Jones ("Defendant"). Christopher, Defendant, and Abby lived with Plaintiffs in Snow Camp, North Carolina from the date of Abby's birth until July 2018. In July and August 2018, Christopher, Defendant, and Abby lived together in a rental apartment in North Carolina with Defendant's two other minor children.

By Domestic Violence Protective Order ("DVPO") entered 13 August 2018, Defendant was found to have attempted to cause Christopher bodily injury on 6 August 2018 by slapping him while he was holding Abby. The DVPO prohibited Defendant from having contact with Christopher, granted Christopher temporary custody of Abby, and granted Defendant visitation with Abby for one hour per week. The DVPO was to expire by its terms on 13 August 2019. Christopher and Abby moved back into the Plaintiffs' home. Defendant moved to Texas and did not exercise her visitation with Abby.

On 30 September 2018, Christopher passed away in an automobile accident. Abby remained in Plaintiffs' home. On 2 October 2018, Plaintiffs filed a complaint pursuant to N.C. Gen. Stat. § 50-13.1(a) seeking "full legal custody of the minor child" and "primary physical custody of the minor child on an emergency, temporary, and permanent basis." Plaintiffs alleged, inter alia, "Defendant stated she will be in the jurisdiction on Thursday, October 4, 2018, to retrieve the child and remove her from the jurisdiction"; "Defendant abandoned the minor child and moved to Floresville, TX in August 2018 with no notice and has had minimal contact with Plaintiff[s] regarding the welfare of the minor child"; "Defendant suffers from severe depression and bi-polar disorder, for which she does not take her prescribed medication"; "Defendant also cuts herself as a side effect of her mental disorders"; "Defendant has been hospitalized in the psychiatric unit at Alamance Regional Medical Center due to her mental disorders"; and "Defendant has acted inconsistently with her constitutionally-protected status and custody should be granted to the Plaintiffs." On 3 October 2018, the trial court entered an Ex Parte Order granting Plaintiffs custody of Abby, prohibiting Defendant from removing Abby from Plaintiffs' custody, and setting a temporary custody hearing for 24 October 2018. On 15 October 2018, Defendant filed an answer to the complaint.

On 24 October 2018, the parties appeared for the temporary custody hearing in Alamance County District Court. After the hearing, the trial court took the matter under advisement. On 26 October 2018, the trial court gave an oral ruling from the bench. The oral ruling was reduced to writing and entered on 16 November 2018 ("Custody Order"). In the Custody Order, the trial court made sixty-three findings of fact and, based upon those findings, concluded, inter alia:

6. That the court is not considering the best interest of the minor child standard at this posture of the case.

7. Defendant is not an unfit parent.

8. Defendant has not abandoned her daughter.

9. That the minor child has not been neglected by Defendant.

10. That Defendant has not acted in a manner inconsistent with her constitutionally protected right as a parent.

11. That Defendant is a fit and proper person to have full physical and legal custody of the minor child.

12. That it is in the best interest of the minor child to place full physical and legal custody with Defendant, Stephanie Jones.

13. That Plaintiffs are fit and proper person[s] to have reasonable visitation with the minor child.

14. That the Court has the authority to grant Plaintiffs reasonable visitation.

15. That it is in the best interest of the minor child to have reasonable visitation with Plaintiffs, Wanda Graham and George Graham.

The trial court thus ordered that Defendant have "full physical, legal, custody care and control" of Abby, but that Plaintiffs should have visitation with Abby, who was approximately nine months old at the time, as follows: (a) On the third weekend of every month Plaintiffs have unsupervised visitation from Friday at 6 a.m. to Monday at 6 a.m. The parties shall exchange the child at a neutral location half–way between Plaintiffs' home in North Carolina and Defendant's home, which was in Texas at that time; (b) Plaintiffs are permitted to video chat with Abby four times per week, every Monday, Thursday, Friday, and Sunday, from 6:00 p.m. to 7:00 p.m.; and (c) Plaintiffs have unsupervised visitation with Abby for a period of two uninterrupted weeks during the summer. "The weeks shall be defined as 6:00[ ]a.m. on Monday to 6:00[ ]a.m. on Monday (14 days)."

On 13 December 2018, Defendant filed notice of appeal.

II. Discussion

Defendant argues on appeal that the Custody Order is immediately appealable as it is a permanent order. In the alternative, Defendant argues that the Custody Order is immediately appealable as it affects a substantial right. Defendant further argues that the trial court erred by proceeding with a best interest analysis after granting Defendant full physical and legal custody, care, and control of Abby, and erred by granting Plaintiffs visitation with Abby.

A. Immediate Appellate Review

We first determine whether this appeal is properly before us. Defendant argues that the Custody Order is immediately appealable because it (1) is a permanent custody order and (2) affects a substantial right.

1. Permanent Custody Order

A party is generally not entitled to appeal from a temporary custody order while a permanent custody order is immediately appealable. Brown v. Swarn , 257 N.C. App. 417, 422-23, 810 S.E.2d 237, 240 (2018) (citation omitted). "[A] temporary or interlocutory custody order is one that does not determine the issues, but directs some further proceeding preliminary to a final decree." Smith v. Barbour, 195 N.C. App. 244, 250, 671 S.E.2d 578, 583 (2009) (internal quotation marks and citation omitted). "[W]hether an order is temporary or permanent in nature is a question of law, reviewed on appeal de novo." Id. at 249, 671 S.E.2d at 582 (citation omitted).

A "temporary custody order[ ] establish[es] a party's right to custody of a child pending the resolution of a claim for permanent custody—that is, pending the issuance of a permanent custody order." Regan v. Smith, 131 N.C. App. 851, 852–53, 509 S.E.2d 452, 454 (1998) (citations omitted). In contrast, "[a] permanent custody order establishes a party's present right to custody of a child and that party's right to retain custody indefinitely. ..." Id. "Generally, a child custody order is temporary if ... ‘(1) it is entered without prejudice to either party, (2) it states a clear and specific reconvening time in the order and the time interval between the two hearings [is] reasonably brief[,] or (3) the order does not determine all the issues.’ " Kanellos v. Kanellos , 251 N.C. App. 149, 153, 795 S.E.2d 225, 229 (2016) (quoting Senner v. Senner , 161 N.C. App. 78, 81, 587 S.E.2d 675, 677 (2003) ). If the order "does not meet any of these criteria, it is permanent." Peters v. Pennington , 210 N.C. App. 1, 14, 707 S.E.2d 724, 734 (2011) (citation omitted). "Further, it is the satisfaction of these criteria, or lack thereof, and not any designation by a district court of an order as temporary or permanent which controls." Kanellos , 251 N.C. App. at 153, 795 S.E.2d at 229 (citations omitted).

a. Prejudice

"An order is without prejudice if it is entered without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party." Marsh v. Marsh , 259 N.C.App. 567, 816 S.E.2d 529, 532 (2018) (quotation marks, brackets, and citation omitted). The Custody Order before us "granted full physical, legal, custody care and control" of Abby to Defendant, with visitation to Plaintiffs. Unlike the Ex Parte Order entered in this case which expressly stated, "This is a temporary order and not prejudicial to either party[,]" the Custody Order does not contain express language indicating that it was entered without prejudice to either party. See, i.e., Senner , 161 N.C. App. at 81, 587 S.E.2d at 677 (holding the custody order was entered "without prejudice" because it contained express language stating as such). Moreover, it is not clear from the plain language of the Custody Order that it was entered without the loss of rights, or otherwise prejudicial to the legal rights of either party. See Marsh , 816 S.E.2d at 532 ("Even though the trial court did not include express language in the order stating it was entered ‘without prejudice,’ it is clear from the plain language of the order that it was entered without the loss of rights, or otherwise prejudicial to the legal rights of either party."). To the contrary, the plain language of the Custody Order indicates it was permanently adjudicating the parties' rights with respect to Abby's custody.

b. Reconvening Time

The...