Kanellos v. Kanellos

• Citation: 251 N.C.App. 149,795 S.E.2d 225
• Decision Date: 20 December 2016
• Docket Number: No. COA16-416,COA16-416
• Court: Court of Appeal of North Carolina (US)
• Parties: Stasie KANELLOS, Plaintiff, v. Ioannis John KANELLOS, Defendant.

251 N.C.App. 149

795 S.E.2d 225

Stasie KANELLOS, Plaintiff,

v.Ioannis John KANELLOS, Defendant.

No. COA16-416

Court of Appeals of North Carolina.

Filed: December 20, 2016

J. Clark Fischer, Winston-Salem, for Plaintiff.

John T. Burns, Monroe, for Defendant.

STEPHENS, Judge.

Plaintiff appeals from an interlocutory order making an initial permanent child custody determination, contending that the district court erred in ordering Plaintiff and the parties’ children to move back to the county where the parties lived before their separation, and to reside there in the former marital residence. We vacate the challenged order to the extent it purports to compel Plaintiff to reside in a specific county and house, because those matters fall outside the scope of authority granted to the district court in a child custody action.

Factual and Procedural Background

On 1 July 2014, Plaintiff Stasie Kanellos filed a complaint for child custody, child support, postseparation support, alimony, equitable distribution, and attorney's fees against Defendant Ioannis "John" Kanellos. The parties were married on 27 March 2007, and the union produced two children, a boy and a girl. On 25 June 2014, John moved out of the residence. The child custody matter came on for hearing on 23 September 2015, in Union County District Court, the Honorable Joseph Williams, Judge presiding. On 2 February 2016, the district court entered its child custody order.

Before the marriage, John owned a restaurant in Monroe and a house located at 8220 Sunset Hill Road in Waxhaw. Both towns are located in Union County. Following their marriage in May 2007, the parties resided in the Sunset Hill Road residence. Following the birth of her children, Stasie did not work outside of the home, and, although Stasie's mother would travel from her home in Lewisville to assist with child care, attend doctor's appointments, and clean the home, Stasie provided "90% of the child care for the two children." The evidence indicated that a frequent daily routine was for John to arrive home after work, take a short nap, spend one hour with the children, and then leave to go work out at the gym. Stasie also regularly took the children to Lewisville for several days at a time. During the course of the marriage, John was discovered to be having an extra-marital relationship, and, after first trying to repair the marriage though counseling, Stasie asked John to leave the marital residence. The parties agreed that John could spend time with the children on Wednesdays and alternating weekends, Fridays to Sundays. Still, the parties’ relationship was strained: Stasie texted John that "the kids do not give a sh*t about you and are dead to you," told John that he did not deserve the kids, and told the eldest child that his father did not want to talk to him and that John was not his father. At the time of the 23 September 2015 hearing, Stasie and the children lived with Stacie's mother in Lewisville, the children were enrolled in school there, and Stasie had obtained employment in nearby Winston-Salem. Prior to relocating to Lewisville, Stasie had discussed the move with John, who objected. John asked Stasie to allow the children to stay with him every other week during the summer, but Stasie refused. Stasie also rejected John's request for additional visitation time for beach weekends. At some point after the parties’ separation, John also relocated, moving from Waxhaw, in Union County, to Charlotte, in Mecklenburg County.¹

John testified that the three-hour travel time to the Lewisville area made it difficult for John to attend his son's 8:30 a.m. Saturday soccer games.

In its 2 February 2016 order, the district court concluded that both parties were fit and proper persons to have custody of the children, and thus, awarded the parties joint legal custody, with Stacie having primary physical custody and John enjoying visitation on alternating weekends. The court further determined that it was in the best interest of the children that they reside in Union County. Accordingly, the court ordered that Stasie and the children move back to Union County and live in the former marital residence, and that John continue to pay the mortgage and utilities for the home. From the custody order, Stasie appeals, arguing that the trial court abused its discretion by requiring that she relocate to the former marital residence in Union County. Stasie emphasizes that, at the time of the custody hearing, neither she nor John had resided in Union County for over a year, and contends that, where the children were settled in Forsyth County, the move would be highly disruptive to them.

Grounds for Appellate Review

Initially, we must consider whether this interlocutory appeal is properly before us. Our review of the record in this matter and pertinent case law indicates that the 2 February 2016 order from which Stasie appeals is a permanent or "final" order as to child custody, and, thus, immediately appealable under our General Statutes.

"An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham , 231 N.C. 357, 362, 57 S.E.2d 377, 381 (citation omitted), reh'g denied , 232 N.C. 744, 59 S.E.2d 429 (1950). "Generally, there is no right to appeal from an interlocutory order." Flitt v. Flitt , 149 N.C.App. 475, 477, 561 S.E.2d 511, 513 (2002) (citations omitted). However, in 2013, our General Assembly enacted section 50-19.1, which provides:

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 [section ] 1A-1, Rule 54(b), but for the other pending claims in the same action .

N.C. Gen. Stat. § 50–19.1 (2015). In turn, under Rule 54(b) of our Rules of Civil Procedure, "[w]hen more than one claim for relief is presented in an action, ... the court may enter a final judgment as to one or more but fewer than all of the claims ... only if there is no just reason for delay and it is so determined in the judgment." N.C. Gen. Stat. § 1A–1, Rule 54(b) (2015). A judgment with a Rule 54(b) certification from the trial court is then immediately appealable. Id. The initial question for this Court is thus whether the order from which Stasie appeals is a final order as to child custody.

In one sense, all child custody orders are temporary: they are subject to modification, and they terminate once the child reaches the age of majority. Yet a distinction is drawn in our statutes and in our case law between temporary or interim custody orders and permanent or final custody orders.

A permanent custody order establishes a party's present right to custody of a child and that party's right to retain custody indefinitely. Permanent custody orders arise in one of two ways. If the necessary parties have entered into an agreement for permanent custody, and the trial court enters a consent decree which contains that agreement, the consent decree is a permanent custody order. In all other cases, permanent custody orders are those orders that resolve a contested claim for permanent custody of a child by granting permanent custody to one of the parties. They are issued after a hearing of which all parties so entitled are notified and at which all parties so entitled are given an opportunity to be heard.

In contrast, temporary custody orders establish 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 and internal quotation marks omitted).

"There is no absolute test for determining whether a custody order is temporary or final. A temporary order is not designed to remain in effect for extensive periods of time or indefinitely." Miller v. Miller , 201 N.C.App. 577, 579, 686 S.E.2d 909, 911 (2009) (citations, internal quotation marks, and ellipses omitted). Generally, a child custody "order is temporary if either (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 was reasonably brief; or (3) the order does not determine all the issues." Senner v. Senner , 161 N.C.App. 78, 81, 587 S.E.2d 675, 677 (2003) (citations omitted). "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. See Brewer v. Brewer , 139 N.C.App. 222, 228, 533 S.E.2d 541, 546 (2000) ; see also Woodring v. Woodring , 227 N.C.App. 638, 643, 745 S.E.2d 13, 18 (2013) ("A trial court's designation of an order as ‘temporary’ or ‘permanent’ is neither dispositive nor binding on an appellate court.") (citation omitted).

Where this Court has determined that a child custody order is temporary because it did not "determine all the issues[,]" the remaining, undecided issues were child custody matters such as legal custody, ongoing holiday schedules, and the scope of visitation for the noncustodial parent. See, e.g. , id. at 644, 745 S.E.2d at 18 ("[The] order [appealed from] did not address [the] father's ongoing visitation, but rather provided [the] father with only three specific instances of visitation in 2010. Nor did the ... order explicitly address legal custody . Thus, the order [did] not determine all the issues and was a temporary order." (citation and internal quotation...