Powers v. Wagner

• Decision Date: 19 July 2011
• Docket Number: No. COA10–689.,COA10–689.
• Citation: 716 S.E.2d 354
• Parties: Sharon POWERS and Claude W. Powers, Plaintiffs,v.Brannon WAGNER and Radiyya Ali, Defendants.
• Court: North Carolina Court of Appeals

716 S.E.2d 354

Sharon POWERS and Claude W. Powers, Plaintiffs,

v.Brannon WAGNER and Radiyya Ali, Defendants.

No. COA10–689.

Court of Appeals of North Carolina.

July 19, 2011.

Appeal by defendant Radiyya Ali from order entered 10 November 2009 by Judge Jimmy Love, Jr. in Johnston County District Court. Heard in the Court of Appeals 13 January 2011.

Mary McCullers Reece for plaintiffs-appellees.

Marcia Kaye Stewart for defendant-appellant Radiyya Ali.

GEER, Judge.

Defendant Radiyya Ali appeals from an order granting permanent legal and physical custody of her child to plaintiffs Sharon and Claude W. Powers (“the Powerses”), her child's paternal grandparents. She contends that the trial court made insufficient findings of fact to support (1) its conclusion that the court had subject matter jurisdiction and (2) its conclusion that she acted inconsistently with her constitutionally-protected right to parent. While the trial court properly concluded that it had subject matter jurisdiction over the proceedings, we hold that the trial court made insufficient findings of fact to support its conclusion of law that defendant Ali acted inconsistently with her constitutional right to parent. The trial court did not resolve the conflicting evidence regarding Ali's intent when she allowed her child to live with and be cared for by the Powerses. Accordingly, we vacate the order and remand to the trial court to make further findings of fact in accordance with this opinion.

Facts

The trial court found the following facts. Ali, who is a resident of Broward County, Florida, gave birth to her son, “Scott,” ¹ in Broward County on 6 June 2006. Defendant Brannon Wagner, who Ali dated for about nine months, is Scott's father. Ali and Wagner separated before Scott was born. Ali has another child residing with her in Florida, who is not Wagner's child.

Wagner did not become involved with his son until Scott was approximately four months old. Ali did not hear anything from Wagner after Scott's birth until Ali contacted Wagner's employer. At that point, Wagner began visiting Scott every other weekend. Sharon and Claude Powers, Wagner's parents, first met Scott over Thanksgiving in 2006.

Ali allowed Scott to go alone to visit Ali's grandmother in Trinidad for approximately two months from December 2006 through February 2007. Ali contends it is part of her West Indian culture to travel to visit relatives for three to four months at a time. In February 2007, Scott resumed residing with defendant Ali.

Ali initiated a paternity and support action against Wagner through the State of Florida's Department of Revenue. Wagner, in turn, brought a custody action in Florida state court, but later dismissed that action. On 3 April 2007, a Final Administrative Paternity and Support Order was entered against Wagner ordering him to pay $783.30 per month to Ali for the support of Scott. His payment of the court-ordered support was sporadic, and Ali subsequently had his wages garnished.

In June 2007, the Powerses went to Florida to visit Scott. During this visit, Ali asked plaintiffs if they would like to take Scott back to North Carolina with them since Scott had previously visited his maternal grandmother. He stayed with the Powerses for five weeks. Scott then returned to Florida and remained there with Ali for approximately two weeks before returning to North Carolina to stay with the Powerses on 15 August 2007. Ali provided a medical authorization letter to the Powerses so that Scott could receive any necessary medical treatment.

Ali contends that Scott was supposed to stay with Wagner's great-grandmother, Doris, in South Carolina for three months. According to Ali, Sharon Powers was concerned about Doris' health and wanted Scott to return to stay with her in North Carolina instead. The Powerses contend that Wagner asked if they wanted to keep the child because Scott had visited with the maternal grandmother and that they spoke with Ali and agreed to keep Scott due to her work schedule and lack of daycare.

Scott had ongoing problems with his ears after arriving in North Carolina. Sharon Powers would stay up with him during the night and also take Scott to the doctor. Sharon Powers notified both Ali and Wagner of Scott's doctor appointments. The pediatrician recommended that Scott have tubes inserted into his ears. This surgery was scheduled, and in January 2008, Ali was notified of the upcoming surgery. The surgery took place on 31 March 2008.

Ali did not travel to North Carolina for the surgery and did not visit Scott during his recovery. She contends the reason for this failure was twofold. First, she did not want to interrupt Scott's treatment, and secondly, Scott could not fly immediately after having the tubes inserted. In addition, in May 2008, Ali had surgery herself for pre-cancerous conditions. Ali contended that she needed six to eight weeks to recover from that surgery.

On 6 June 2008, Ali visited Scott for his birthday at the Powerses' home. This trip was the first time Ali had been to see Scott in North Carolina since 15 August 2007. During this visit, she purchased a play set to be installed in the Powerses' backyard.

In September 2008, Scott was placed in his current daycare by the Powerses. Ali pays $100.00 per week towards the daycare but keeps the remainder of the child support funds paid to her by Wagner. The Powerses pay for Scott's doctors' copays and prescription drug expenses. The Powerses take Scott to church on a regular basis.

Prior to November 2008, Ali was upset that Wagner would not provide her with his employer's contact information, which she claimed she needed in order to obtain insurance on her own policy for her other son, who is not Wagner's child. Ali then informed Sharon Powers that she was going to take Scott back to Florida.

Ali testified that she traveled to North Carolina one weekend in November 2008. She went to the Benson Police Department to obtain assistance in regaining possession of Scott, but the police department was closed. According to Ali, the Powerses were not at home when she went to their house, and she therefore returned to Florida without Scott. The Powerses were not aware that Ali was going to make this trip to North Carolina.

On 12 December 2008, the Powerses filed a complaint in Johnston County District Court seeking an emergency ex parte custody order and temporary and permanent custody of Scott. On 22 December 2008, the trial court entered an order granting the Powerses emergency ex parte custody. On 17 September 2009, the trial court entered a temporary custody order granting custody of Scott to the Powerses, but providing Ali with visitation two weeks per month. The order allowed Wagner whatever visitation he and the Powerses mutually agreed upon. Wagner had moved from Indiana to North Carolina on 4 March 2009 and was then living with the Powerses.

Over the two years that Scott had lived with the Powerses, Ali never took any legal action to regain custody of Scott. Prior to November 2008, Ali had never even attempted to take physical custody from the Powerses.

On 10 November 2009, the trial court entered a permanent custody order granting the Powerses primary legal and physical custody of Scott, ordering that Wagner have visitation with Scott as mutually agreed between the Powerses and himself, and providing for a structured visitation schedule for Ali. Ali timely appealed to this Court.

I

Ali first contends that the trial court's conclusion that it had subject matter jurisdiction over this matter was not supported by adequate findings of fact. “This Court's determination of whether a trial court has subject matter jurisdiction is a question of law that is reviewed on appeal de novo.” Kingston v. Lyon Constr., Inc., ––– N.C.App. ––––, ––––, 701 S.E.2d 348, 351–52 (2010). “In exercising jurisdiction over child custody matters, North Carolina requires the trial court to make specific findings of fact supporting its actions.” Williams v. Williams, 110 N.C.App. 406, 411, 430 S.E.2d 277, 281 (1993).

Under the Uniform Child–Custody Jurisdiction and Enforcement Act (“UCCJEA”), a North Carolina court has jurisdiction to make an initial child-custody determination if North Carolina is the “home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State[.]” N.C. Gen.Stat. § 50A–201(a)(1) (2009). The “home state” is the state where “a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.” N.C. Gen.Stat. § 50A–102(7) (2009).

In support of her argument, Ali points to In re J.B., 164 N.C.App. 394, 398, 595 S.E.2d 794, 797 (2004), in which this Court vacated and remanded because the trial court had failed to makes sufficient findings of fact regarding subject matter jurisdiction. In In re J.B., however, “the record [was] devoid of evidence from which [this Court] [might] ascertain whether or not the trial court possessed subject matter jurisdiction ....” Id.

Here, by contrast, the trial court made findings of fact that on 15 August 2007, Scott “came to North Carolina to stay with” the Powerses, and Ali never took any legal action after that date to regain custody of Scott. The Powerses placed Scott in daycare, took him to his doctor's appointments, and paid for his medical expenses. These findings, which are unchallenged on appeal, are sufficient to establish that Scott resided in North Carolina with the Powerses, who were acting as parents, for at least six months prior to the filing of this custody action. North Carolina was, therefore, Scott's home state for purposes of this proceeding, and the trial court had subject matter jurisdiction even though the...