Sulier v. Veneskey

• Decision Date: 04 October 2022
• Docket Number: COA21-506, 21-523
• Citation: 878 S.E.2d 633
• Parties: Michael Keith SULIER, Plaintiff, v. Tina Bastian VENESKEY, Defendant.
• Court: North Carolina Court of Appeals

878 S.E.2d 633

Michael Keith SULIER, Plaintiff,

v.Tina Bastian VENESKEY, Defendant.

No. COA21-506, 21-523

Court of Appeals of North Carolina.

Filed October 4, 2022

Michael Keith Sulier, pro-se, plaintiff-appellee.

Homesley & Wingo Law Group PLLC, by Andrew J. Wingo, Mooresville, and Victoria L. Stout, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Defendant-maternal Grandmother appeals the trial court's orders determining North Carolina has jurisdiction over the custody of Plaintiff-Father's minor child and awarding him full custody. Because we conclude the trial court had subject-matter jurisdiction under the UCCJEA and its determination Plaintiff-Father is a fit parent who has not abdicated his constitutional rights to the minor child was supported by its findings and the evidence, we affirm.

I. Background

¶ 2 This case involves a custody dispute between Plaintiff Michael Keith Sulier ("Father"), and Defendant Tina Bastian Veneskey, maternal grandmother ("Grandmother") of Andrea,¹ who was born in February 2013.² Father and Andrea's late mother ("Mother") were never married but were living together when Andrea was born. Father and Mother separated following Andrea's birth, after which the record reflects Father and Mother had a "tumultuous relationship" during which they "broke up a few times and got back together." During this period of about two years, Father cared for the child and "did engage in parenting activities such as feeding, changing and taking care of the child while the mother was at work." Mother and Father then permanently separated in 2014; Mother moved away, took Andrea with her, got married, and changed her last name. Father did not thereafter have contact with Andrea. The trial court found from Father's and his mother's testimony that Father's lack of contact with Andrea after the separation was a result of having been "led to believe by [Mother] and [Grandmother] that they could no longer have communication with the minor child," in part due to a no-contact order, "consistent with the years between 2014-2020." The trial court found after the no-contact order was lifted in 2016, Father and the paternal grandmother "attempted to locate the minor child through family inquiries and social media," but Mother "had a different last name at that point, and they did not know how to find her." According to Grandmother, Mother moved at least eight times with the child during the five years after Mother and Father separated, throughout North Carolina, Michigan, and Alaska, never staying in one location longer than a year until moving into Mother's final home in North Carolina. Grandmother's pleadings in this action revealed to Father for the first time Andrea's previous whereabouts including her return to North Carolina by August of 2017 and most recently living since October 2018 in a home with Mother, Mother's new husband ("Stepfather"), and another child born to Mother and Stepfather, the minor child's half-sibling, in Mocksville, North Carolina.

¶ 3 Mother passed away on 10 May 2020. At this time, Grandmother lived in Michigan. After Mother's death, on or about 18 May 2020, Grandmother traveled to North Carolina and removed Andrea from North Carolina, bringing her to Michigan to stay with Grandmother and her husband. Grandmother did so without notifying Father and without his consent and has kept Andrea in Michigan since. At the time of Mother's death and at the time this action was filed, Father was residing in Myrtle Beach, South Carolina. Father also has a son with his girlfriend who he has lived with "as a family unit" since his son's birth, and in his briefing on appeal, Father states he "takes care of his [son's] needs [and] he wishes to do the same for his biological daughter ...." Father did not learn of Mother's passing until discovering this through a Facebook posting, at which point he "immediately returned to North Carolina to pick up his daughter." Father contacted the police, family members, and neighbors, but was never informed Grandmother took the child to Michigan.

¶ 4 Grandmother initiated a guardianship proceeding in the Delta County Probate Court in Michigan soon after arriving there with Andrea, on 29 May 2020,³ and on 30 June 2020 the Michigan court entered an emergency temporary guardianship order. Father then filed his verified Complaint for Child Custody two weeks later, on 15 July 2020, in Davie County District Court. On 30 July 2020, Grandmother filed an action for permanent custody in the Michigan State Court. The Delta Probate Court in Michigan granted temporary guardianship to Grandmother and a telephone conference was then held between the Honorable Mary Covington and the Honorable Perry Lund of the Circuit Court for the County of Delta, Michigan ("UCCJEA conference"). Following that conference, on 29 October 2020, the Michigan Court "entered a summary disposition order under MCR 2.116(C)(4), finding that Michigan is not the home state of the minor child and is an inconvenient forum" and dismissing Grandmother's Michigan custody action.

¶ 5 On 30 September 2020, Grandmother filed a motion to dismiss Father's custody complaint and a Motion for UCCJEA Conference and Answer pursuant to Chapter 50A of the North Carolina General Statutes ("UCCJEA"). Father filed a verified Reply and Response to Motion to Dismiss, noting the previous UCCJEA conference held by Judge Covington and Judge Lund. The next day, on 19 November 2020, Father filed a verified Motion to Allow Supplemental Pleading and verified Supplemental Pleading and Motion in the Cause for an order awarding him immediate and temporary custody based upon the Michigan Court's Order declaring it was not Andrea's home state. On 27 January 2021, Grandmother filed her verified Answer and Counterclaims in North Carolina for "permanent primary custody" of Andrea. The matters were noticed for hearing on 23 February 2021 and came on that day before the Honorable Mary Covington in Davie County District Court.⁴ Judge Lund, in Michigan, also presided virtually at the 23 February 2021 hearing.

¶ 6 By Order on Jurisdiction entered 23 February 2021, Judge Covington concluded North Carolina had subject-matter jurisdiction over Andrea's custody because North Carolina was her "home state" as defined by the UCCJEA; and, as an alternative basis for jurisdiction, a parent or person acting as a parent had significant contacts with North Carolina and North Carolina was a convenient forum for the custody proceeding. The trial court found as fact Grandmother and her husband owned real property located in Davie County, where Grandmother previously resided, and Andrea and Mother were residing in North Carolina continuously for three years prior to Mother's passing. The trial court also found for purposes of the UCCJEA Stepfather "was acting as a parent to [the child] at the time of [Mother's] death ..." and was living in the North Carolina home with Andrea and her half-sibling. Father filed a verified Motion to Dismiss Grandmother's Second Answer and Counterclaims the same day the trial court entered its Order on Jurisdiction.⁵

¶ 7 By Temporary Custody Order entered 3 May 2021,⁶ Judge Covington reaffirmed North Carolina's subject-matter jurisdiction over Andrea's custody and concluded Father did not abdicate his constitutionally protected rights as a parent, was fit and proper to have care, custody, and control, and was therefore entitled to full custody of the child. The trial court dismissed Grandmother's claim for custody and ordered Andrea be immediately returned to Father. On 5 May 2021, Grandmother filed written notice of appeal from the trial court's custody order.

II. Discussion

¶ 8 Grandmother makes many arguments on appeal challenging the trial court's award of custody to Father and dismissal of her claim for custody. She argues the conference Judges Covington and Lund held prior to the court's Order on Jurisdiction violated the UCCJEA; the trial court erred in concluding North Carolina was Andrea's home state, there also existed significant-connection jurisdiction, and North Carolina was a convenient forum; and the trial court erred in awarding custody to Father because the evidence she presented established as a matter of law that Father abdicated his constitutional rights as a parent. Grandmother also takes exception to the trial court's decision not to admit certain evidence from the child's Michigan therapist.

A. Standard of Review

¶ 9 We review de novo a trial court's conclusion it has subject-matter jurisdiction over a custody dispute pursuant to the UCCJEA. In re J.H. , 244 N.C. App. 255, 260, 780 S.E.2d 228, 233 (2015) ; see also In re M.R.J. , 378 N.C. 648, 2021-NCSC-112, ¶ 19, 862 S.E.2d 639 ("[S]ubject-matter jurisdiction is a question of law...." (quotations and citation omitted)).

¶ 10 In custody determinations, "the trial court's findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary." Adams v. Tessener , 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) (quotations and citations omitted). However, "a trial court's determination that a parent's conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence." Id. ; In re I.K. , 377 N.C. 417, 2021-NCSC-60, ¶ 20, 858 S.E.2d 607 ("The trial court's legal conclusion that a parent acted inconsistently with his constitutionally protected status as a parent is reviewed de novo to determine whether the findings of fact cumulatively support the conclusion and whether the conclusion is supported by clear and convincing evidence."). "The trial court's findings of fact are conclusive on appeal if unchallenged, or if supported by competent evidence in the record." In re I.K. , ¶ 20 (citations omitted).

B. Procedure for UCCJEA Conference

¶ 11 We first address Grandmother's arguments the trial court violated the UCCJEA in the procedure it...