Quevedo-Woolf v. Overholser

• Decision Date: 18 September 2018
• Docket Number: No. COA17-675,COA17-1344,COA17-675
• Citation: 261 N.C.App. 387,820 S.E.2d 817
• Court: North Carolina Court of Appeals
• Parties: Celina QUEVEDO-WOOLF, Plaintiff, v. Merry Eileen OVERHOLSER and Daniel Carter, Defendants. Celina Quevedo-Woolf, Plaintiff, v. Merry Eileen Overholser and Daniel Carter, Defendants.

261 N.C.App. 387

820 S.E.2d 817

Celina QUEVEDO-WOOLF, Plaintiff,

v.Merry Eileen OVERHOLSER and Daniel Carter, Defendants.

Celina Quevedo-Woolf, Plaintiff,

v.Merry Eileen Overholser and Daniel Carter, Defendants.

No. COA17-675

COA17-1344

Court of Appeals of North Carolina.

Filed: September 18, 2018

Woodruff Law Firm, PA, Greensboro, by Carolyn J. Woodruff and Jessica Snowberger Bullock, for Plaintiff.

Hoffman Law Firm, PLLC, by James P. Hoffman, Jr., for Defendant Overholser.

McGEE, Chief Judge.

I. Factual and Procedural History

A. General

Celina Quevedo-Woolf ("Plaintiff") and Daniel Carter ("Carter") had a brief romantic relationship that resulted in the birth of E.R.Q., a girl, on 19 July 2005. Carter has had minimal involvement in E.R.Q.’s life and is not a party to this appeal. Plaintiff's mother, Merry Eileen Overholser ("Defendant") has raised E.R.Q. since infancy. When Plaintiff realized she was pregnant she moved in with Defendant, who was living in Defendant's mother's house (the "house"), in Palm Beach County, Florida. After E.R.Q. was born, Plaintiff continued to live with Defendant. Though E.R.Q. initially slept in Plaintiff's room, for the majority of the time Plaintiff and E.R.Q. were living in the house, E.R.Q. slept in Defendant's room.

Plaintiff moved out of the house around the time of E.R.Q.’s first birthday, leaving E.R.Q. with Defendant, because, according to Plaintiff, Plaintiff was not getting along with Defendant, and for "stability for E.R.Q." Plaintiff testified she left E.R.Q. with Defendant because E.R.Q. already "kn[ew] my mother and kn[ew] that house, [so] it seemed like a logical thing at the time as opposed to me moving out into a friend's house, which I did, and [E.R.Q.] not being familiar with the situation or anything like that." Plaintiff's initial apartment was nearby, and Plaintiff testified she visited E.R.Q. but that "it was kind of sporadic," "weekly." Plaintiff never kept E.R.Q. overnight during this initial period.

In order for Defendant to have the authority to make decisions necessary for raising E.R.Q., such as decisions for medical care, Defendant asked Plaintiff to give Defendant legal and physical custody of E.R.Q. Plaintiff agreed, and the Circuit Court of the Fifteenth Judicial Circuit for Palm Beach County, Florida (the "Florida court"), entered an "Order for Temporary Custody" on 2 November 2006 (the "Florida Order"), giving sole legal and physical custody of E.R.Q. to Defendant. E.R.Q. was one year old at the time. The Florida Order allowed Plaintiff to petition for the return of custody of E.R.Q. to Plaintiff. After Defendant obtained custody, Plaintiff continued to have semi-regular contact with E.R.Q., but E.R.Q. lived full-time with Defendant and Defendant made all relevant decisions related to the care of E.R.Q. In 2007, Defendant filed for, and obtained, an order for child support from Plaintiff.

In June of 2008, when E.R.Q. was approximately three years old, Defendant and E.R.Q. moved with Defendant's girlfriend at the time, Janet Kresge ("Kresge"), to Rowan County, North Carolina. Defendant had been a special education teacher since 1984, and continued working in that capacity in North Carolina. Plaintiff testified she did not want Defendant to leave Florida with E.R.Q., but Defendant testified that, when she discussed with Plaintiff the idea of moving to North Carolina, Plaintiff "thought it was a great idea and [Plaintiff] said she was coming" to North Carolina to be near E.R.Q. Plaintiff did not move to North Carolina, and did not visit E.R.Q. in Rowan County until October 2008, when Defendant purchased Plaintiff a plane ticket for that purpose. A note written by Kresge concerning that time period stated:

April, 2008. Discussed moving [with Plaintiff]. Better standard of living, et cetera. Was told [Plaintiff] would follow in a few months. Looked for apartments. Sent info to [Plaintiff]. October, 2008 visit [—] three days. [Plaintiff] [s]pent most of time on computer or phone. Did not spend ... quality time [with E.R.Q.]. Promised to be back for Thanksgiving. No contact.

Defendant testified that, based upon her own observations, what Kresge had written in the note was correct. Plaintiff's next visit with E.R.Q. did not occur until May of 2011, approximately two and a half years after the October 2008 visit. The May 2011 visit was a day visit that lasted only a few hours.

Defendant testified that she and Kresge offered to let Plaintiff live with them and E.R.Q., but Plaintiff did not take them up on that offer. Defendant further testified:

A After [Plaintiff] came in October [2008] I did not hear from her for quite some time.

Q Was it true that [Plaintiff] didn't have your phone number when you lived in North Carolina?

A No.

....

Q Do you know where [Plaintiff] was at during that period of time when she had no contact?

A No, I don't.

Q When you say no contact, do you mean no phone calls, no visits, or what?

A Correct. There were—there were no visits from—the next visit did not happen until [3] May, 2011. [Plaintiff] did call on—there were a couple of Christmases where she called. I remember one phone call at Christmas time, and it had been quite a while since I had spoken to her, where she—she told me that she was suicidal and some other things, and things surrounding why she felt that way. There was another phone call. She usually called like May. May and December. And I remember one May she called and I said something to her about [E.R.Q.]’s birthday the previous year. That she never called [E.R.Q.]. And I said, "Why didn't you do that? You didn't even call her?" And she said, "Mom, honestly I forgot." And then there was May of—I believe it was 2010, because [Kresge] was still there. And we were in the backyard and [Plaintiff] called and she just started screaming at me, "Give her back to me. You have to give her back to me. She's mine. I'm coming to get [E.R.Q.]." And I said, "[Plaintiff], you don't even know her." And she said, "Well, that's okay. I'll come for the weekend and I'll spend the weekend with her and then I'm taking her back with me." And I said, "No." And it was like I had to try to talk her down.

Q So we're talking about—and I want to make sure I'm right on this. We're talking [6] October, 2008, well into May of 2011 here [that Plaintiff had no physical contact with E.R.Q.], right?

A Yes.

.... Q Did you go through periods like that where you wouldn't hear from [Plaintiff] for a long time and then suddenly you would get demands to turn [E.R.Q.] over to her?

A Yes.

Q Do you even know where [Plaintiff] was living at that point in time or who she was living with?

A No. I know at one point [Plaintiff] told me that she married Michael. And I didn't know—I don't believe I knew specifically where she lived.

Q Did you know that [Plaintiff had] married a guy—or had moved to West Virginia for a while or something, or was that later?

A That was Michael[.] And my recollection is that when we had—we had talked about moving—we had all talked about moving to North Carolina, and [Plaintiff] said it was a great idea and she was all gung-ho. And then—and then at that point I'm not sure if they were living—I know for a while [Plaintiff and Michael] were living in an apartment. For a little while I think they were living with Michael's mother. And we had looked at a house online [for Plaintiff in North Carolina]. So ...

Q When you say "we looked at a house online," who looked at a house online?

A [Plaintiff] and I and [Kresge].

Uncontested findings of fact from the order Plaintiff appeals in this matter—Judge Marshall Bickett's 16 May 2016 Custody Order (the "Bickett Order")—show that Defendant moved to North Carolina with E.R.Q. in June of 2008, and that Plaintiff visited E.R.Q. in North Carolina in October of 2008.

On 1 June 2009, approximately eight months after Plaintiff's October 2008 visit with E.R.Q. in North Carolina, Plaintiff filed a motion in Florida requesting that the Florida Order be terminated and that custody of E.R.Q. be returned to Plaintiff. In that motion, Plaintiff alleged the following as grounds for regaining custody of E.R.Q.: "I have maintained steady employment and have proper housing for [E.R.Q.]. I am also recently married[,]" and that E.R.Q. "would be back with the birth mother, and [she] would be better off living back in Florida with me and her immediate family." Three months later, on 1 September 2009, Plaintiff sent Defendant an email stating that she wanted to regain custody of E.R.Q. Plaintiff stated that signing custody of E.R.Q. over to Defendant "was the best thing for [E.R.Q.] at that time and I don't regret my decision but [E.R.Q.] belongs with me[.]" Plaintiff stated that sometimes she felt like Defendant did not love her, "[b]ut when I think that I always revert back to my past because if you didn't love me you wouldn't support me the way that you did." Plaintiff stated: "I am not going anywhere and I have every intention of fighting to get my wonderful daughter home with me."

Approximately eight months later, on 4 May 2010, the Florida court entered a "Notice of Lack of Prosecution" in which it informed Plaintiff that there had been "no activity" in the action "for a period of 10 months immediately preceding service of this notice" and that absent some action on the part of Plaintiff to move the matter forward within sixty days, a hearing would be held on 1 July 2010 "on the court's motion to dismiss for lack of prosecution[.]" Plaintiff did not respond to the "Notice of Lack of Prosecution," and the Florida court dismissed Plaintiff's Florida action for lack of prosecution by order entered 15 July 2010. Plaintiff did not visit E.R.Q. between the filing and dismissal of the 2009 Florida action.

In uncontested findings of fact from the Bickett Order, the trial court found as fact that "[in] October of 2008 [ ] Plaintiff visited with [E.R.Q.] in the state of North Carolina. After this visitation, [ ] Plaintiff stopped visiting with [E.R...