Rosero v. Blake

• Decision Date: 21 May 2002
• Docket Number: No. COA01-483., No. COA01-350
• Citation: 150 NC App. 251,563 S.E.2d 248
• Court: North Carolina Court of Appeals
• Parties: Daniel Fabricio ROSERO, Plaintiff-Appellee, v. Lisa BLAKE, Defendant-Appellant.

563 S.E.2d 248

150 NC App. 251

Daniel Fabricio ROSERO, Plaintiff-Appellee, v. Lisa BLAKE, Defendant-Appellant.

Nos. COA01-350, COA01-483.

Court of Appeals of North Carolina.

May 21, 2002.

Kathleen Murphy, Raleigh, for plaintiff-appellee.

Sally H. Scherer, Raleigh, for defendant-appellant.

McGEE, Judge.

Defendant appeals an order filed 2 January 2001 granting primary legal custody of the parties' minor child to plaintiff. Defendant further appeals an order filed 26 January 2001 dismissing her motion for a protective order for lack of subject matter jurisdiction.

Plaintiff and defendant are the natural parents of Kayla Alexandria Rosero (Kayla), who was born on 20 March 1996. The parties had a brief relationship in 1995, while plaintiff was living in North Carolina. In December of that year, plaintiff moved to Oklahoma. After Kayla's birth, plaintiff agreed to submit to a paternity test which confirmed that he was Kayla's biological father. Plaintiff acknowledged paternity by signing a "Father's Acknowledgment Of Paternity" form prepared in accordance with N.C. Gen.Stat. § 110-132 on 3 March 1997. The parties agreed that Kayla would remain in defendant's care, where she had lived all her life, and that plaintiff would provide child support.

During the next three years, Kayla visited with plaintiff and his wife on several occasions, including visits to Oklahoma for a long weekend, or for a period of two or three weeks. Plaintiff maintained contact with Kayla through letters, telephone calls, and visits when he traveled to North Carolina.

Defendant is also the mother of two minor sons. The boys' father, Clea Johnson, continues to have contact with his sons and has developed a relationship with Kayla. Kayla often refers to him as "daddy Clea." Defendant's mother and grandmother assist her in caring for the three children. Defendant's mother is employed at the daycare center where Kayla is enrolled and cares for Kayla when defendant is at work or away.

Plaintiff filed this action seeking custody of Kayla on 22 March 2000, while he was still living in Oklahoma. Defendant responded and filed a counterclaim for custody, alleging that although plaintiff was a fit and proper person to have visitation with Kayla, it was in Kayla's best interest for the child to remain in defendant's custody. Prior to the hearing, plaintiff and his wife moved back to North Carolina. The trial court heard evidence from both parties, found both parties to be fit parents, and awarded "primary legal custody" of Kayla to plaintiff and "secondary physical custody" to defendant.

I.

Defendant first appeals the trial court's denial of her motion for a protective order, which she filed approximately two weeks after the entry of the custody order.

The record shows that on 11 January 2001, defendant gave notice of appeal from the custody order and petitioned this Court for a writ of supersedeas and a temporary stay. On that date, our Court issued a temporary stay but reserved ruling on the writ of supersedeas pending a response by plaintiff. During this time, Kayla continued to live with defendant. However, on 15 January 2001, plaintiff took physical custody of Kayla by removal of the child from the home of her maternal grandmother.

Defendant moved the trial court for a protective order on 17 January 2001, alleging plaintiff had caused Kayla to be "abducted." Defendant further alleged that plaintiff had refused to allow her to have any contact with Kayla. Defendant requested the trial court to (1) "issue an injunction protecting the child by prohibiting the plaintiff from taking her from the defendant's physical custody at any time unless agreed upon by the parties in advance or ordered by" the trial court; and (2) that "plaintiff be ordered to return the child to the defendant's home immediately[.]"

The trial court dismissed defendant's motion on 26 January 2001 on the grounds that because its custody order was on appeal to this Court, the trial court lacked jurisdiction to grant the relief defendant requested. On the same date, this Court denied defendant's petition for a writ of supersedeas and dissolved the temporary stay. However, this Court's order noted that the trial court retained jurisdiction to entertain motions based on defendant's allegations so that it might "enter any interlocutory orders needed to enforce the custody order or to protect the interests of the parties and the welfare of the child pending the outcome of the appeal."

Pursuant to N.C. Gen.Stat. § 1-294, a perfected appeal

stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.

N.C. Gen.Stat. § 1-294 (1999). Additionally, our Supreme Court has held that an appeal of a custody order leaves the trial court "functus officio" with regard to all custody matters until the cause is remanded. Joyner v. Joyner, 256 N.C. 588, 592, 124 S.E.2d 724, 727 (1962). The law of this State mandates that once a custody order is appealed, the trial court is divested of jurisdiction over all matters specifically affecting custody. Accord Hackworth v. Hackworth, 87 N.C.App. 284, 360 S.E.2d 472 (1987)

.

Nevertheless, defendant contends that since the trial court has a continuing duty to protect Kayla's welfare, it retained jurisdiction to grant the relief she requested. N.C. Gen.Stat. § 50-13.3(a) (1999) states that:

Notwithstanding the provisions of G.S. 1-294, an order pertaining to child custody which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal.

Defendant correctly asserts that the trial court's duty to protect Kayla's welfare continues pending the outcome of the appeal. See Joyner, 256 N.C. at 591,

124 S.E.2d at 727. Indeed, this Court's order dissolving the temporary stay acknowledges that the trial court retained jurisdiction "to entertain any motions ... to protect the interests of the parties and the welfare of the child pending the outcome of the appeal."

As our Court noted in Upton v. Upton, 14 N.C.App. 107, 187 S.E.2d 387 (1972), filing an appeal did not authorize a violation of the order of the trial court and that "`[o]ne who wilfully violates an order does so at his peril. If the order is upheld by the appellate court, the violation may be inquired into when the case is remanded'" to the trial court. Id. at 109, 187 S.E.2d at 389 (quoting Joyner, 256 N.C. at 591, 124 S.E.2d at 727).

While in no manner condoning alleged actions of plaintiff in obtaining physical custody of Kayla, the relief sought by defendant appears to be directed toward staying the custody order pending appeal. If the trial court had granted the relief requested by defendant, it would have effectively kept Kayla in defendant's primary custody while the case was on appeal. See Carpenter v. Carpenter, 25 N.C.App. 307, 308, 212 S.E.2d 915, 916 (1975)

(the purpose of N.C. Gen.Stat. § 1-294 is to prevent the trial court from undertaking the very matters which were embraced in a previous order).

Our Court has stated that upon appeal from the trial court's judgment, "`all further proceedings in the cause' are suspended in the trial court during the pendency of the appeal, and the trial court `is without power to hear and determine questions involved in [the pending] appeal[.]'" Cox v. Dine-A-Mate, Inc., 131 N.C.App. 542, 544, 508 S.E.2d 6, 7 (1998) (quoting Lowder v. All Star Mills, Inc., 301 N.C. 561, 580, 273 S.E.2d 247, 258 (1981)). As stated above, N.C.G.S. § 1-294 provides that "appeal of [a] judgment stays all further proceedings in the trial court `upon the matter embraced therein [,]'" which in the case before us is the custody of Kayla. Cox, 131 N.C.App. at 544, 508 S.E.2d at 7 (emphasis added). The trial court is only empowered to "`proceed upon any other matter included in the action and not affected by the judgment appealed from'... so long as they do not concern the subject matter of the suit." Id. at 544, 508 S.E.2d at 7-8 (quoting Woodward v. Local Governmental Employees' Retirement Sys., 110 N.C.App. 83, 85-86, 428 S.E.2d 849, 850 (1993)). Both statutory and case law direct that the trial court lost jurisdiction over all matters dealing specifically with custody in this case when defendant appealed the custody order of the trial court. Accordingly, we conclude the trial court properly determined that it was without jurisdiction to grant defendant's motion, which was directly related to and would have affected the custody order that was on appeal.

II.

Defendant argues the trial court applied an improper standard in determining who is entitled to custody of Kayla. She contends that since plaintiff has failed to legitimate Kayla, the trial court must first find that defendant is unfit or otherwise unable to care for Kayla before it can apply a "best interest of the child" analysis to determine who should have primary custody. In response, plaintiff asserts the trial court did apply the proper legal standard. In support of her contention that the trial court applied an improper legal standard, defendant relies on our Supreme Court's decision in Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965). In Jolly, the mother of an illegitimate child petitioned for custody of her seven-year-old son. The evidence showed that the child had lived intermittently with his father and mother but was currently living with his father. Although the father had acknowledged the child as his son, he had failed to "legitimate" the child. The trial court found both the mother and father were fit and suitable persons to have custody but concluded that it was in the child's best interest that primary custody be awarded to the father. Our Supreme Court reversed, holding the trial court applied an improper legal standard....