Williams v. Walker

• Decision Date: 21 August 2007
• Docket Number: No. COA06-781.,COA06-781.
• Court: North Carolina Court of Appeals
• Parties: Kendra Troy WILLIAMS, Plaintiff, v. Michael Lawrence WALKER, Defendant, and Larry Walker and Marie B. Walker, Intervenors.

648 S.E.2d 536

Kendra Troy WILLIAMS, Plaintiff, v. Michael Lawrence WALKER, Defendant, and Larry Walker and Marie B. Walker, Intervenors.

No. COA06-781.

Court of Appeals of North Carolina.

August 21, 2007.

Appeal by plaintiff from order entered 6 October 2005 by Judge Phyllis M. Gorham in New Hanover County District Court. Heard in the Court of Appeals 6 March 2007.

Fred D. Webb, Jr., Sanford, for plaintiff-appellant.

No brief filed, for defendant-appellee.

No brief filed, for intervenors-appellees.

JACKSON, Judge.

This appeal arises out of competing custody orders entered in Illinois and North Carolina with respect to M.L.W., the minor child of Kendra Troy Williams ("plaintiff") and Michael Lawrence Walker ("defendant"). For the following reasons, we affirm in part and reverse in part the trial court's 6 October 2005 order.

M.L.W. ("the minor child") was born in Wilmington, North Carolina, on 9 September 1992. At the time, plaintiff was in high school and determined that she was unable to provide adequate care for the minor child. Larry and Maria Walker ("the Walkers"), the minor child's paternal grandparents and residents of Illinois, offered to care for the child, and around December 1992, plaintiff placed the minor child with the Walkers. On 7 April 1993, the Circuit Court of Cook County, Illinois ("the Illinois court") entered an order granting guardianship and custody of the minor child to the Walkers. The Walkers have alleged that they have been the minor child's primary caretakers since they were appointed as guardians and that the minor child continued to reside with them until 12 July 2002, when the minor child visited plaintiff in North Carolina and plaintiff refused to return him to the Walkers. Plaintiff has alleged the minor child lived with her from April 1993 until 1996, when the Walkers took him to Illinois for a visit and refused to return him to North Carolina. Plaintiff also has alleged that while the minor child was in the Walkers' custody, she maintained regular contact with him, purchased clothes and other items for him, and sent him cards on special occasions.

Plaintiff has alleged that on 24 July 2001, she was served with a motion for parentage filed in Illinois by defendant, who, according to plaintiff, has spent little time with the minor child, despite acknowledging paternity. Thereafter, according to plaintiff, (1) a hearing was held in Illinois on 7 September 2001; (2) she was granted visitation with the minor child; (3) she visited the minor child in September 2001, but was not allowed to visit in October 2001, notwithstanding the Illinois court's ordering visitations; (4) on 2 November 2001, she went to mediation in Illinois and the Walkers were present at the mediation; and (5) she and defendant reached a partial agreement at the mediation.

On 1 October 2002, plaintiff filed suit in the District Court of New Hanover County, North Carolina ("the North Carolina court"), requesting that the North Carolina court assume jurisdiction and modify the Illinois custody order. In her complaint, plaintiff alleged that the minor child's home state is North Carolina and that Illinois no longer has any connection with the matter except that defendant continues to reside in Illinois.¹ On 30 May 2003, the Illinois court held a hearing on a motion for visitation violation filed by defendant. By order filed 14 July 2003, the Illinois court (1) granted defendant leave to transfer his motion in the pending case to North Carolina; and (2) removed the matter from its calendar. On 15 July 2003, the North Carolina court granted plaintiff's motion and entered an order (1) asserting jurisdiction as to custody and visitation of the minor child as a result of Illinois' yielding jurisdiction to North Carolina; (2) granting plaintiff custody of the minor child; and (3) expressly retaining jurisdiction for the entry of further orders.

Thereafter, on 26 February 2004, the Illinois court entered an order granting defendant sole temporary custody of the minor child. In its order, the court found "that [defendant] stated that there are no matters pending in any other jurisdiction and that a prior matter in North Carolina had been closed." On 22 April 2004, the Illinois court entered an order finding that the Walkers — the minor child's legal guardians — were not made parties to the North Carolina custody action. The Illinois court presumed that North Carolina had not been made aware of the prior guardianship order granting custody to the Walkers. The Illinois court (1) ordered defendant to assist in securing a copy of the court file in the North Carolina action filed by plaintiff; and (2) continued the case to 25 June 2004.

On 21 July 2004, the Walkers ("intervenors") filed a motion to intervene in the North Carolina court action, alleging that they "were appointed the legal guardians of the minor child in the State of Illinois on April 7, 1993." Intervenors also filed a motion for relief from the North Carolina court's 15 July 2003 order assuming jurisdiction. By order filed 20 August 2004, the North Carolina court granted the motion to intervene. On 6 October 2005, the North Carolina court entered an order concluding that (1) the State of Illinois had neither waived nor yielded jurisdiction to the State of North Carolina; and (2) North Carolina had no jurisdiction over the case. The court granted intervenors' motion for relief and stayed the 15 July 2003 order asserting jurisdiction and granting custody to plaintiff. Plaintiff filed timely notice of appeal.

Plaintiff first contends that the North Carolina court erred in granting intervenors' Rule 60(b) motion because intervenors lacked standing to bring the motion. We disagree.

"On appeal, this Court's review of the trial court's Rule 60(b) ruling `is limited to determining whether the trial court abused its discretion.'" Barton v. Sutton, 152 N.C.App. 706, 709, 568 S.E.2d 264, 266 (2002) (quoting Moss v. Improved Benevolent & Practice Order of Elks, 139 N.C.App. 172, 176, 532 S.E.2d 825, 829 (2000)). "Abuse of discretion is shown only when the court's decision `is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" Id. at 710, 568 S.E.2d 264, 568 S.E.2d at 266 (quoting State v. McDonald, 130 N.C.App. 263, 267, 502 S.E.2d 409, 413 (1998)).

In the instant case, plaintiff contends that intervenors had no right under the Uniform Child Custody and Jurisdiction Enforcement Act to bring a Rule 60(b) motion; rather, "the grandparents could only seek visitation under [North Carolina General Statutes, section] 50-13.5(j) by filing a motion in the cause and a showing of changed circumstances." Plaintiff essentially argues that intervenors lacked standing to intervene and thus lacked standing to pursue their Rule 60(b) motion. Plaintiff, however, has not assigned error to the trial court's order granting the motion to intervene, and the record contains no objection by plaintiff to the motion. Therefore, the trial court's order granting the motion to intervene is binding on appeal. See N.C. R.App. P. 10(a) (2006).

"After intervention, an intervenor is as much a party to the action as the original parties are and has rights equally as broad. . . . Once an intervenor becomes a party, he should be a party for all purposes." Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C.App. 73, 78-79, 311 S.E.2d 1, 4-5 (1984) (emphasis added). The plain language of Rule 60(b) provides that "the court may relieve a party . . . from a final judgment." N.C. Gen.Stat. § 1A-1, Rule 60(b) (2005) (emphasis added). An intervening party thus has standing to seek relief from a judgment pursuant to Rule 60(b). See, e.g., Barton, 152 N.C.App. 706, 568 S.E.2d 264.² Therefore, intervenors in the instant case had standing to seek relief pursuant to Rule 60(b) from the trial court's 15 July 2003 custody order. Accordingly, plaintiff's assignment of error is overruled. In her second assignment of error, plaintiff contends that intervenors' Rule 60(b) motion was untimely. However, plaintiff has failed to preserve this issue for appellate review.

Rule 60(b) of the North Carolina Rules of Civil Procedure provides that a court may relieve a party from a judgment or order because: (1) of mistake, surprise, or excusable neglect; (2) of newly discovered evidence that could not have been timely discovered by due diligence; (3) of fraud, misrepresentation, or other misconduct; (4) the judgment or order is void; (5) the judgment or order has been satisfied or discharged, or a prior judgment or order upon which it is based has been reversed or vacated; or (6) any other equitable justification for relief from the judgment or order. See N.C. Gen.Stat. § 1A-1, Rule 60(b) (2005). Rule 60(b) motions premised on subsections (1), (2), and (3) of Rule 60(b) must be made "not more than one year after the judgment, order, or proceeding was entered or taken." N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). Rule 60(b) further requires that a motion based upon any of the subsections be made within a reasonable time. See id. "What constitutes a `reasonable time' depends upon the circumstances of the individual case." Nickels v. Nickels, 51 N.C.App. 690, 692, 277 S.E.2d 577, 578, disc. rev. denied, 303 N.C. 545, 281 S.E.2d 392 (1981).

In the case sub judice, the record contains no indication that plaintiff argued the timeliness of intervenors' motion before the trial court. Plaintiff did not contend in her written Opposition to Motion for Relief from Judgment that the Rule 60(b) motion was untimely, and the trial court made no finding or ruling with respect to the issue of timeliness. Accordingly, this issue has not been preserved for our review. See N.C. R.App. P. 10(b)(1) (2006).

Finally, plaintiff challenges the North Carolina court's conclusion — as well as the findings supporting its conclusion — that it was without jurisdiction to...