Harney v. Harney

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-364

Filed 3 September 2024

Vance County, No. 20CVD592

OLIVER HARNEY, Plaintiff,

v.

CHRISTINA HARNEY, Defendant.

Appeal by defendant from order entered 15 June 2022 by Judge S. Katherine

Burnette in District Court, Vance County. Heard in the Court of Appeals 14

November 2023.

Gailor Hunt Davis Taylor & Gibbs, PLLC, by Jonathan S. Melton, for plaintiff- appellee.

The Law Office of Colon & Associates, PLLC, by Arlene L. Velasquez-Colon and Kendra R. Alleyne, for defendant-appellant.

STROUD, Judge.

Defendant-mother appeals from a custody order granting custody of her minor

child, Sam1, to Plaintiff, who is Sam’s maternal grandfather. Although Sam was born

in New York and a temporary custody order was entered in New York shortly after

his birth, the New York court declined to exercise continuing jurisdiction under the

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) following a

hearing in compliance with North Carolina General Statute Section 50A-207. See

1 We have used a pseudonym for the minor child to protect his identity. HARNEY V. HARNEY

Opinion of the Court

N.C. Gen. Stat. § 50A-207(a) (2023) (“A court of this State which has jurisdiction

under this Article to make a child-custody determination may decline to exercise its

jurisdiction at any time if it determines that it is an inconvenient forum under the

circumstances, and that a court of another state is a more appropriate forum. The

issue of inconvenient forum may be raised upon motion of a party, the court’s own

motion, or request of another court.”). North Carolina has subject matter jurisdiction

over custody under the UCCJEA. See N.C. Gen. Stat. § 50A-203 (2023) (“Except as

otherwise provided in G.S. 50A-204, a court of this State may not modify a child-

custody determination made by a court of another state unless a court of this State

has jurisdiction to make an initial determination under G.S. 50A-201(a)(1) or G.S.

50A-201(a)(2) and: (1) The court of the other state determines it no longer has

exclusive, continuing jurisdiction under G.S. 50A-202 or that a court of this State

would be a more convenient forum under G.S. 50A-207[.]”). The trial court’s detailed

and extensive findings of fact, made by clear and convincing evidence, are supported

by competent evidence. These findings support the trial court’s conclusion that

Mother acted inconsistently with her constitutionally protected right as a parent and

the trial court did not err by granting custody to Grandfather based on Sam’s best

interests.

I. Background

Mother lives in New York and she gave birth to Sam in New York in June 2019.

Plaintiff (“Grandfather”) lives in Vance County, North Carolina. When the complaint

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in this matter was filed, Sam’s biological father was “unknown” to Grandfather2

although Mother later identified the biological father during this custody case.

Grandfather traveled to New York to be with Mother when Sam was born. Soon after

Sam’s birth, Grandfather had a “consultation with the New York child protective

services agency,” and Grandfather “was able to obtain temporary custody of [Sam].”

On 26 June 2019, about a week after Sam’s birth, Grandfather filed an “Order to

Show Cause Pursuant to Section 651 of the Family Court Act with Temporary Relief

and Petition for Custody” in Suffolk County, New York seeking custody of Sam. He

alleged Mother’s home was a health hazard due to water damage and mold and that

Mother was a hoarder. At the time of Sam’s birth, Mother’s home was not habitable

due to “mold issues that had not been remediated or addressed by” Mother and the

home “smelled of mold and cat urine.” Grandfather also alleged concerns regarding

Mother’s mental health.

After Grandfather filed his petition in New York on 26 June 2019, the Suffolk

County Family Court entered an order granting emergency temporary custody of Sam

2 The custody complaint in North Carolina alleged that Sam’s father is “unknown,” and Mother admitted this allegation in her answer. Sam’s birth certificate has no father listed. The New York Stipulation and other documents do not mention a father for Sam. However, Mother later admitted she knew the identity of the biological father although she had previously claimed he was an anonymous sperm donor. The trial court ordered that he be notified of this proceeding, and he accepted service of the complaint and other documents in the custody case and waived any further rights to notice or participation in this proceeding.

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to Grandfather.3 On 28 June 2019, with the consent of both parties, the Suffolk

County Family Court entered a “So-Ordered Stipulation”4 (“Stipulation”) which

granted the parties “joint custody” of Sam, with Grandfather as “the physical

residential custodian” and giving Mother “rights of supervised parental access

through EAC or with a family member or other person approved by [Grandfather]” or

as “otherwise agreed” by the parties in writing. The Stipulation noted that

Grandfather would pay for Mother’s flight for a “scheduled visit” with Sam on 11-16

July as Grandfather “is currently residing in” North Carolina and Sam would reside

with him. Mother agreed to “undergo psychiatric evaluation and follow through with

any and all recommendations by medical professionals” and to make the results of

the evaluation available to Grandfather. The Stipulation granted Grandfather “final

decision making authority regarding all major decisions” as to Sam’s care and

education. The Stipulation also provided that both parties “were entitled to receive

all medical records and to converse with any physician or professional” regarding

3 The 28 June 2019 Stipulation provides that Grandfather “was awarded temporary physical and

residential custody of the infant issue by way of Order of the Honorable Matthew Hughes, which Order is on file with this Court” but the initial New York emergency order is not in our record. (Emphasis added.) 4 Under New York law, “[a] so-ordered stipulation is a contract between the parties thereto and as

such, is binding on them and will be construed in accordance with contract principles and the parties’ intent[.]” Tyndall v. Tyndall, 144 A.D.3d 1015, 1016, 42 N.Y.S.3d 250, 251 (2016) (citation and quotation marks omitted). The Stipulation also provided that it would be construed based upon New York law: “13. This Agreement is being executed and entered into in the State of New York. This Agreement shall be construed in accordance with and shall in all respects be governed by the Laws of New York now or hereafter in effect, without giving effect to the choice of law provisions thereof, and regardless of where the parties, or either of them, in fact reside.”

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Sam. Mother agreed to have three mold tests done of her home in New York by a

“certified air quality specialist,” to be done in three month increments and “all three

(3) tests shall prove to be negative for any mold.” The Stipulation notes that

Grandfather was represented by counsel in New York and Mother was pro se,

although she “was encouraged and strongly advised to seek independent

representation but has refused[.]” After entry of the Stipulation, Grandfather and

Sam traveled back to his home in North Carolina “on June 29, 2019 and [ ] remained

there since that time[.]”

On 17 June 2020, Grandfather filed a “Complaint for Custody and Protective

Order” against Mother in Vance County, North Carolina. His complaint included

allegations regarding the New York custody action and an attached copy of the

Stipulation. On 6 July 2020, Mother filed a “Petition for Modification of Order of

Custody” in New York, alleging that she lived in New York at the same address as

she lived at the time of Sam’s birth, and Grandfather and Sam lived in North

Carolina. She alleged there “has been a change of circumstances” since the prior

order in that “Mold Air test passed and evaluations met. Ready for unification.5

Requirements met. N.Y State jurisdiction, not North Carolina.” She further alleged

Grandfather “is trying to remove my custody rights and order I can not fight for them

with an order. Parental alienation, malice, hersay (sic) & defamation of my

5 Or “verification.” This portion of the Motion is hand-written and difficult to read.

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character.” She also filed a “Petition to Enforce Custody or Visitation Order” in New

York, making allegations regarding the entry of the Stipulation and the filing of the

North Carolina custody action by Grandfather. She sought in part “to continue

jurisdiction in New York” and “to protect my rights as mother and continue all cases

in N.Y. Suffolk Family Court.” On 22 July 2020, Mother also filed a Motion for

“Dismissal Based on Lack of Jurisdiction” in Vance County.

On 2 October 2020, Mother filed an “Amended Answer and Motion to Dismiss”

in Vance County. She alleged North Carolina did not have jurisdiction over custody

of Sam and that New York “has Exclusive, Continuing Jurisdiction” regarding

custody. She also admitted or denied the allegations of Grandfather’s complaint for

custody. As relevant to this appeal, Mother admitted Sam had been living in North

Carolina with Grandfather since June 2019. She also admitted the allegation that

Sam’s father is “unknown.”

On 23 October 2020, the Suffolk County Family Court in New York entered a

“Final Order on Petition for Modification of Order of Custody made by Family Court.”

This Order indicates that the Honorable Heather P.S. James Esq, Referee in Suffolk

County and Judge Adam Keith in Vance County conducted the hearing and both

parties “appeared in North Carolina with counsel[.]” The New York Order declining

to exercise jurisdiction stated:

[A]fter examination and inquiry into the facts and circumstances of the case, after hearing the arguments of the parties through their counsel both in the Family Court

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of the State of New York, County of Suffolk, before the undersigned and in the General Court of Justice, District Court Division, Vance County, NC [Docket# 20CVD592] (hereinafter, ‘the North Carolina matter’) before the Hon. Adam Keith, and for all of the reasons set forth upon the record this date,

NOW, therefore, it is hereby

ORDERED, that pursuant to DRL section 76-f, New York hereby declines exclusive continuing jurisdiction in favor of the more appropriate forum in North Carolina; and it is further,

ORDERED, that the parties are directed to appear in and cooperate with the further proceedings in the North Carolina matter.

On 3 June 2021, the trial court entered a temporary custody order addressing

various issues including communication between the parties, family therapy, mental

health assessments for both parties, and visitation for Mother. The trial court also

noted that “[a]ccording to the parties, the natural father of the minor child” was an

“anonymous sperm donor” and “all parties necessary to this action are properly before

the court for hearing.”

On 16 July 2021, the trial court entered an “Order Regarding Expert

Appointment and Notice.” This order appointed a psychiatrist to evaluate both

parties and provide a report to the trial court for the 9 December 2021 hearing. In

addition, by this point in the proceeding – after Grandfather had filed a motion

seeking to compel Mother to identify the biological father based on a need for medical

history information to assist in dealing with a health condition of the child – Mother

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identified the previously “anonymous” sperm donor as the putative father of the child.

This order states that “[n]either party objected to providing the putative father with

notice of the proceeding pursuant to N.C. Gen. Stat. § 50A-205(a). Via the parties,

the putative father has request[ed] that his name be placed under seal in the Court

file.” This order required Grandfather to “properly notice the putative father of the

child-custody proceeding[.]”

On 9 September 2021, Mr. Doe,6 the putative father of Sam, filed an

“Acceptance of Service and Waiver of Responsive Pleading.” Mr. Doe averred that

“he is the biological father of the minor child involved in this proceeding” and he

acknowledged receipt of the Summons, Complaint, Amended Answer, and orders “in

this action”; that he was making a general appearance in this matter; and that he

waived “further responsive pleadings” and “all notice requirements.”

A hearing was held on custody on 1 June 20217 and 21 April 2022, and on 15

June 2022, the trial court entered a Custody Order granting legal and physical

custody of Sam to Grandfather, with Mother to have limited visitation after

complying with various requirements for Mother to consult with Sam’s medical

6 This is a pseudonym to protect the putative father’s identity. Although the trial court directed the

putative father’s name be placed under seal, the Record on Appeal filed with this Court included his unredacted “Acceptance of Service and Waiver of Responsive Pleading” but was not sealed as required by North Carolina Rule of Appellate Procedure 42(a). See N.C. R. App. P. 42(a) (“Items sealed in the trial tribunal remain under seal in the appellate courts.”). We have therefore sua sponte sealed the Record. 7 The trial court noted the June 2021 court date resulted in the entry of the 3 June 2021 order requiring

the parties to “obtain a psychiatric assessment based on each party’s assertion that the other party had a serious mental health condition that would prevent that party from caring for the minor child.”

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providers to learn about his diagnosis of autism and “to understand [his] diagnosis

and treatment options.” Mother filed timely notice of appeal of this Order and

included the orders entered on 23 October 2020 and 3 June 2021.8

II. Subject Matter Jurisdiction under the UCCJEA

Although Mother’s last argument on appeal addresses jurisdiction under the

UCCJEA, we will address this first, as subject matter jurisdiction is a necessary

prerequisite for a court to take any action. See McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010) (“When a court decides a matter without the court’s

having jurisdiction, then the whole proceeding is null and void, i.e., as if it had never

happened.” (citations and quotation marks omitted)). Mother’s entire argument on

this issue is “[t]he Vance County trial court never ruled on Mother’s motion to dismiss

due to lack of subject matter jurisdiction with a North Carolina order and instead

stamped and filed the New York order.” Despite Mother’s failure to cite any authority

or make an argument regarding jurisdiction under the UCCJEA, we will address this

issue since we have a duty to inquire as to subject matter jurisdiction even if not

raised by any party. See Rinna v. Steven B., 201 N.C. App. 532, 537, 687 S.E.2d 496,

500 (2009) (“[T]his Court has not only the power, but the duty to address the trial

court’s subject matter jurisdiction on its own motion or ex mero motu.” (citation

omitted)).

8 Other than her general argument regarding subject matter jurisdiction under the UCCJEA, Mother

made no arguments on appeal regarding the 23 October 2020 and 3 June 2021 orders.

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The trial court addressed subject matter jurisdiction in the Custody Order.

The trial court made findings of fact regarding the New York custody proceeding and

the New York court’s entry of its order declining to exercise jurisdiction. In the

Custody Order, the trial court concluded as follows:

1. The Court has subject matter jurisdiction over this matter and personal jurisdiction over the parties.

2. The Court hereby reincorporates the Findings of Fact set forth in the foregoing paragraphs as if set forth fully herein.

3. In October, 2020, New York State, the birth state of the minor child, declined to exercise exclusive jurisdiction in favor of the “more appropriate forum” in North Carolina.

4. The minor child has resided in North Carolina since shortly after his birth. North Carolina is the minor child’s home state.

The 23 October 2020 “Final Order on Petition for Modification of Order of

Custody” entered in Suffolk County Family Court in New York shows the trial courts

of both North Carolina and New York held a hearing on Mother’s motions filed in

New York, with Mother and Grandfather and counsel for both participating. The

Suffolk County court entered an order declining “exclusive continuing jurisdiction in

favor of the more appropriate forum in North Carolina” and directed the parties “to

appear in and cooperate with the further proceedings in the North Carolina matter.”

Mother did not appeal this New York order, and it is binding upon the North Carolina

courts. See Travelers Ins. Co. v. Rushing, 36 N.C. App. 226, 229, 243 S.E.2d 420, 422

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(1978) (explaining that the defendant cannot collaterally attack an order that she did

not appeal). In addition, the trial court’s findings show the trial court properly

exercised subject matter jurisdiction under the UCCJEA based on the New York

order.

III. Violations of Appellate Rules

Mother’s second issue in her brief challenges 38 of the trial court’s 144 findings

of fact and “additional findings” within 12 of its conclusions of law. Mother asserts

“[t]he trial court made findings of fact unsupported by competent evidence.” Mother

“respectfully contends that all or a significant portion of the following findings of fact

are not supported by competent evidence; additional analysis is presented in

Appendix C, organized by topic.” She then lists 38 findings of fact and 12 more

findings “within Conclusions of Law.” Appendix C includes a 27-page table with

columns noting “Court’s Text” for the findings or conclusions challenged and

“Analysis” including her argument as to each item, all single spaced in sans serif font,

possibly calibri.9 The substance of Appendix C sets out detailed arguments as to each

9 (g) Formatting of Documents Filed with Appellate Courts. (1) ... Documents shall be prepared using a proportionally spaced font with serifs that is no smaller than 12-point and no larger than 14-point in size. Examples of proportionally spaced fonts with serifs include, but are not limited to, Constantia and Century typeface as described in Appendix B to these rules. The body of text shall be presented with double spacing between each line of text. Lines of text shall be no wider than 6 ½ inches, leaving a margin of approximately one inch on each side. The format of all documents presented for filing shall follow the additional instructions found in the appendixes to these rules. The

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challenged finding of fact. North Carolina Rule of Appellate Procedure 28(d) requires

this type of analysis and argument to be included in the body of the brief. See N.C.

R. App. P. 28(d).

Mother’s attempt to extend the word count of her principal brief by about twice

the allowed limit is a violation of North Carolina Rule of Appellate Procedure 28(j),

see N.C. R. App. P. 28(j), which is one of the “comprehensive set of nonjurisdictional

requirements [ ] designed primarily to keep the appellate process ‘flowing in an

orderly manner.’” Dogwood Dev. & Mgmt. Co., LLC, v. White Oak Transp. Co., Inc.,

362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008) (citation omitted). Rule 28 of the North

Carolina Rules of Appellate Procedure governs briefs filed before this Court,

including word counts:

(j) A principal brief filed in the Court of Appeals may contain no more than 8,750 words. A reply brief filed in the Court of Appeals may contain no more than 3,750 words.

(1) Portions of Brief Included in Word Count. Footnotes and citations in the body of the brief must be included in the word count. Covers, captions, indexes, tables of authorities, certificates of service, certificates of compliance with this rule, counsel’s signature block, and appendixes do not count against these word-count limits.

N.C. R. App. P. 28(j).

format of briefs shall follow the additional instructions found in Rule 28(j).

N.C. R. App. P. 26(g)(1).

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Although appendixes to briefs do not count against the word limitations of the

brief, an appellant cannot simply label an argument as an appendix to extend the

word count for the body of the brief indefinitely. See N.C. R. App. P. 28(b)(6) (“(b) An

appellant’s brief shall contain . . . (6) An argument, to contain the contentions of the

appellant with respect to each issue presented. Issues not presented in a party’s brief,

or in support of which no reason or argument is stated, will be taken as abandoned.

The argument shall contain a concise statement of the applicable standard(s) of

review for each issue, which shall appear either at the beginning of the discussion of

each issue or under a separate heading placed before the beginning of the discussion

of all the issues. The body of the argument and the statement of applicable

standard(s) of review shall contain citations of the authorities upon which the

appellant relies. Evidence or other proceedings material to the issue may be narrated

or quoted in the body of the argument, with appropriate reference to the record on

appeal, the transcript of proceedings, or exhibits.”).

The appendix has a purpose, as Rule 28(d) describes, and that purpose is not

to extend the body of the brief. See N.C. R. App. P. 28(d). The purpose of the appendix

is to include parts of the transcript, evidence, statutes, or other documents necessary

or helpful to understand the “issue[s] presented in the brief” or, for the appellee, to

address an issue raised in the opposing brief. See id. Mother’s brief also includes two

Appendixes which are proper appendixes as allowed by Rule 28(d) and Rule 30(e)(3);

one appendix includes “portions of the transcript of the proceedings” and the other

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includes an unpublished opinion she cites in her brief. See N.C. R. App. P. 28(d); see

also N.C. R. App. P. 30(e)(3). An appendix is not intended to present the issues in the

brief as if it were actually part of the body of the brief, but that is exactly what

Appendix C does. Allowing an appendix to be used to extend the argument portion

of the body of the brief indefinitely would defeat the entire purpose of the word

limitations and formatting restrictions set out in Rule 28. See N.C. R. App. P. 28.

Rule 28(d) addresses both required and allowed appendixes to the appellant’s

principal brief:

(d) Appendixes to Briefs. Whenever the transcript of proceedings is filed pursuant to Rule 9(c)(2), the parties must file portions of the transcript as appendixes to their briefs, if required by this Rule 28(d).

(1) When Appendixes to Appellant’s Brief Are Required. Except as provided in Rule 28(d)(2), the appellant must reproduce as appendixes to its brief:

a. those portions of the transcript of proceedings which must be reproduced in order to understand any issue presented in the brief;

b. those portions of the transcript showing the pertinent questions and answers when an issue presented in the brief involves the admission or exclusion of evidence;

c. relevant portions of statutes, rules, or regulations, the study of which is required to determine issues presented in the brief;

d. relevant items from the Rule 11(c) or Rule 18(d)(3) supplement, the study of which are required to determine issues presented in the brief.

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(2) When Appendixes to Appellant’s Brief Are Not Required. Notwithstanding the requirements of Rule 28(d)(1), the appellant is not required to reproduce an appendix to its brief with respect to an issue presented:

a. whenever the portion of the transcript necessary to understand an issue presented in the brief is reproduced in the body of the brief;

b. to show the absence or insufficiency of evidence unless there are discrete portions of the transcript where the subject matter of the alleged insufficiency of the evidence is located; or

c. to show the general nature of the evidence necessary to understand an issue presented in the brief if such evidence has been fully summarized as required by Rule 28(b)(4) and (5).

....

(4) Format of Appendixes. The appendixes to the briefs of any party shall be in the format prescribed by Rule 26(g) and shall consist of copies of transcript pages that have been deemed necessary for inclusion in the appendix under this Rule 28(d). The pages of the appendix shall be consecutively numbered, and an index to the appendix shall be placed at its beginning.

N.C. R. App. P. 28(d).

As Mother’s brief violates Rules 28(d) and 26(g), we must first consider

whether this violation is a “substantial failure” to follow the appellate rules or a

“gross violation” of the rules. Dogwood, 362 N.C. at 200-01, 657 S.E.2d at 366-67. If

so, our Supreme Court has instructed that in our discretion, we should “fashion [ ] a

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remedy to encourage better compliance with the rules.” Id. at 198, 657 S.E.2d at 365.

But as always, “it is preferred that an appellate court address the merits of an appeal

whenever possible.” Id. at 198-99, 657 S.E.2d at 365-66 (“We stress that a party’s

failure to comply with nonjurisdictional rule requirements normally should not lead

to dismissal of the appeal[.] See, e.g., Hicks v. Kenan, 139 N.C. 337, 338, 51 S.E. 941,

941 (1905) (per curiam) (observing this Court’s preference to hear merits of the appeal

rather than dismiss for noncompliance with the rules); 5 Am.Jur.2d Appellate Review

§ 804, at 540 (2007) (‘It is preferred that an appellate court address the merits of an

appeal whenever possible. An appellate court has a strong preference for deciding

cases on their merits; and it is the task of an appellate court to resolve appeals on the

merits if at all possible.’ (footnotes omitted)); Paul D. Carrington, Daniel J. Meador

& Maurice Rosenberg, Justice on Appeal 2 (1976) (‘Appellate courts serve as the

instrument of accountability for those who make the basic decisions in trial courts

and administrative agencies.’). Rules 25 and 34, when viewed together, provide a

framework for addressing violations of the nonjurisdictional requirements of the

rules. Rule 25(b) states that ‘the appellate court may impose a sanction when the

court determines that a party or attorney or both substantially failed to comply with

these appellate rules. The court may impose sanctions of the type and in the manner

prescribed by Rule 34[.]’ Rule 34(a)(3) provides, among other things, that ‘the

appellate court may impose a sanction when the court determines that a petition,

motion, brief, record, or other paper filed in the appeal grossly violated appellate court

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rules.’ Rule 34(b) enumerates as possible sanctions various types of monetary

damages, dismissal, and ‘any other sanction deemed just and proper.’” (emphasis in

original) (citations, ellipses and brackets omitted)).

We determine Mother’s noncompliance with the appellate rules to be a

substantial violation. In fashioning a remedy for this violation, we have conducted a

“fact-specific inquiry into the particular circumstances” of this case, keeping in mind

“the principle that the appellate rules should be enforced as uniformly as possible.

Noncompliance with the rules falls along a continuum, and the sanction imposed

should reflect the gravity of the violation.” Id. at 199-200, 657 S.E.2d at 366.

This violation does not rise to the level of dismissal of the appeal, which is an

“extreme sanction to be applied only when less drastic sanctions will not suffice.” Id.

at 200, 657 S.E.2d at 366 (citations, quotation marks, and ellipses omitted).

In most situations when a party substantially or grossly violates nonjurisdictional requirements of the rules, the appellate court should impose a sanction other than dismissal and review the merits of the appeal. This systemic preference not only accords fundamental fairness to litigants but also serves to promote public confidence in the administration of justice in our appellate courts.

Id.

Mother’s substantial violation of the appellate rules imposes a burden on both

this Court and Grandfather, and we must also consider the need to treat all parties

to appeals fairly and equally and to enforce the rules uniformly. The first and most

immediate consequence of a party’s improper extension of the body of an appellant’s

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brief without seeking approval as allowed by the appellate rules, see N.C. R. App. P.

28, is obvious. That burden falls first upon the appellee, who incurs increased costs

from responding to the entire brief, as he may not safely assume this Court will

dismiss the appeal or simply ignore any additional improper argument; instead, he

must pay his counsel to address all the appellant’s arguments. And here,

Grandfather unfortunately responded in like manner, adding to his brief on appeal a

31-page table including Appendix A, containing an “analysis of the 106 uncontested

findings of fact supporting the court’s conclusions” and the responses to the

challenged findings of fact and Appendix B, addressing “the unchallenged, and

therefore binding, findings of fact that support the finding of Grandfather being

awarded sole legal and physical custody” and the “trial court’s Conclusions of Law

Mother claims are unsupported by competent evidence.” North Carolina Rule of

Appellate Procedure 28(d)(3) sets out the requirements for the appellee’s brief:

(3) When Appendixes to Appellee’s Brief Are Required. An appellee must reproduce appendixes to its brief in the following circumstances:

a. Whenever the appellee believes that appellant’s appendixes do not include portions of the transcript or items from the Rule 11(c) or Rule 18(d)(3) supplement that are required by Rule 28(d)(1), the appellee shall reproduce those portions of the transcript or supplement it believes to be necessary to understand the issue.

b. Whenever the appellee presents a new or additional issue in its brief as permitted by Rule 28(c), the appellee shall reproduce portions of the

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transcript or relevant items from the Rule 11(c) or Rule 18(d)(3) supplement as if it were the appellant with respect to each such new or additional issue.

N.C. R. App. P. 28(d)(3) (emphasis added).

Grandfather’s Appendixes did not include any portions of the transcript or

supplement and did not present any new or additional issues; they simply presented

his arguments in response to Mother’s arguments. Thus, Mother’s substantial

violation of the appellate rules led Grandfather to violate North Carolina Rule of

Appellate Procedure 28(d) in like manner, as he attempted to address Mother’s

improperly extended arguments. Id.

Grandfather’s response to Mother’s violation of the appellate rules illustrates

clearly why this Court must address rule violations and must at times sanction those

who violate the rules: one party’s violation of the rules may inspire the opposing

party to respond in the same manner. But even if Grandfather had instead responded

by filing a motion, such as a motion to strike part of Mother’s brief or for some other

sanction, he would still have to incur increased costs and may create additional delay

in the appeal. Either way, this Court must spend more time in reviewing the

improperly extended briefs10 and determining how to address the issues or the rule

10 Here, Mother’s brief including improper Appendixes is 73 pages and about 17,000 words. She also included appropriate Appendixes comprised of transcript pages and an unpublished case as required by Rule 30(e)(3). See N.C. Gen. Stat. § 30(e)(3). Grandfather’s brief including improper Appendixes is 83 pages and about 14,000 words.

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violations and the appropriate sanction for any violations, while this Court has other

appeals in which the parties have dutifully followed the appellate rules and are

awaiting rulings on their appeals. It may seem it would be easier for this Court to

overlook Mother’s substantial rule violations (and Grandfather’s similar substantial

violation) and to address each of her arguments regarding the findings of fact raised

in the Appendix in detail – instead of using this Court’s time and effort to address the

rule violations – but that may encourage others to believe they have found a new way

to extend their briefs without seeking permission of this Court.

As a sanction for Mother’s substantial violation of the North Carolina Rules of

Appellate Procedure, we could elect not to address Mother’s argument regarding the

findings of fact entirely just by striking Appendix C, but we recognize that some of

Mother’s “argument,” so to speak, regarding the findings of fact is presented not only

within Appendix C; it is also presented within her Statement of the Facts.

Grandfather correctly notes in his Restatement of the Facts that

[p]ursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure, the appellant is required to provide a non-argumentative summary of material facts. Defendant-Appellant failed to follow this directive in her brief, and Plaintiff-Appellee makes this restatement of the facts, in compliance with the North Carolina Rules of Appellate Procedure.

(Emphasis in original.)

Mother’s argumentative Statement of Facts is yet another violation of the

appellate rules, but here, Grandfather responded in a way allowed by the appellate

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rules. See N.C. R. App. P. 28(b)(5) (“An appellant’s brief shall contain . . . . (5) A full

and complete statement of the facts. This should be a non-argumentative summary

of all material facts underlying the matter in controversy which are necessary to

understand all issues presented for review[.]”); see also N.C. R. App. P. 28(c) (“[The

appellee’s brief] does not need to contain a statement of . . . the facts . . . unless the

appellee disagrees with the appellant’s statements and desires to make a

restatement[.]”). Mother’s statement of the facts is primarily based on her own

testimony and evidence presented in the light most favorable to her and most

disfavorable to Grandfather. Of course, an appellate advocate should seek to

highlight the facts favorable to their client’s position, but the argument should be in

the “Argument” section of the brief, not in the Statement of Facts. See N.C. R. App.

P. 28(b)(5)-(6).

Thus, as a sanction for Mother’s substantial appellate rule violations, pursuant

to Rules 25 and 34, in our discretion, we will not address or consider Mother’s

arguments presented in Appendix C. See N.C. R. App. P. 25(b) (stating upon a

substantial failure to comply with the appellate rules, “The [C]ourt may impose

sanctions of the type and in the manner prescribed by Rule 34 for frivolous appeals”);

see also N.C. R. App. P. 34(b)(3) (“(b) A court of the appellate division may impose one

or more of the following sanctions: . . . (3) any other sanction deemed just and

proper.”). We will address Mother’s challenges to the findings of fact and conclusions

of law only to the limited extent they are referenced in the body of the brief, including

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the Statement of Facts, but we will not address each one in detail. In determining

this sanction, we have also considered Grandfather’s substantial violation of the

appellate rules in extending the body of his brief by attaching an improper appendix

in response to Mother’s improper appendix, but because he was trying to respond to

Mother’s brief, and because his brief otherwise complies with the Appellate Rules, we

will not sanction Grandfather. However, we admonish counsel for both parties to

comply with the Rules of Appellate Procedure in the future and note that if the

appellant violates a rule, this does not give the appellee license to violate the rules in

response.

Overall, Mother argues the existence of evidence tending to conflict with the

trial court’s findings of fact or quibbles with the exact wording of a finding, but it is

well established that a finding of fact must be upheld if there is competent evidence

to support it.

The standard of review when the trial court sits without a jury is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts. In a child custody case, the trial court’s findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings. Unchallenged findings of fact are binding on appeal. Whether the trial court’s findings of fact support its conclusions of law is reviewable de novo. If the trial court’s uncontested findings of fact support its conclusions of law, we must affirm the trial court’s order.

See Scoggin v. Scoggin, 250 N.C. App. 115, 117-18, 791 S.E.2d. 524, 526 (2016)

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(citations, quotation marks, ellipses, and brackets omitted).

The trial court has the duty to consider the weight and credibility of the

evidence, and we may not substitute our judgment for that of the trial court. See

Cornelius v. Helms, 120 N.C. App. 172, 175, 461 S.E.2d 338, 340 (1995) (“As fact

finder, the trial court is the judge of the credibility of the witnesses who testify. The

trial court determines what weight shall be given to the testimony and the reasonable

inferences to be drawn therefrom.”). Mother has failed to demonstrate any of the trial

court’s challenged findings of fact were unsupported by competent evidence.

IV. Modification of Custody or Initial Custody Determination

Mother next contends that “[t]he trial court erred by concluding that the

temporary New York custody order ‘became more of a permanent custody agreement

in that [Mother] took no court action to regain custody of the minor child[.]’” Mother

argues that the Stipulation was a temporary order but “[i]f the court truly believed

that the New York order converted to permanent, it should have unambiguously

stated that, rather than labeling it ‘more of a permanent agreement,’ and conducted

a substantial-change analysis per N.C. Gen. Stat. §50-13.7 (2021) before considering

the modification.” In other words, Mother first contends the Stipulation should

properly be considered as a temporary order, but if the trial court considered it a

permanent order, it erred by treating it as a permanent order and then modifying

custody without conducting a substantial change analysis. Mother’s argument

concludes by noting “[p]erhaps the qualifier ‘more of a’ indicates the trial court did

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not fully intend to conclude the New York order converted to permanent, explaining

why it did not treat it as such.”

Although it would be to Grandfather’s benefit to agree with Mother that the

trial court treated the Stipulation as a temporary order, he instead argues the trial

court did treat it as a permanent order but did not err by doing so. He argues that

“it is not contested that the June 2019 New York temporary agreement was intended

to be a temporary custodial arrangement.” But because of “passage of time and the

lack of action by Mother, the trial court correctly held that the June 2019 New York

temporary agreement became more of a permanent agreement.” Grandfather has

taken a different position on appeal than he did before the trial court, but he then

argues why the trial court did not err by treating the Stipulation as permanent, even

though it did not actually characterize the Stipulation as a permanent order.

As to Grandfather’s argument, we note that neither party argued at the

hearing that the Stipulation should be considered as a permanent order or that the

trial court should consider modification based upon a substantial change in

circumstances since entry of the Stipulation. Grandfather did not file a motion

seeking modification of the Stipulation; he filed a complaint seeking an initial

determination of permanent custody. In other words, Grandfather argues a theory

on appeal he did not raise before the trial court, but “[o]ur Supreme Court has long

held that where a theory argued on appeal was not raised before the trial court, the

law does not permit parties to swap horses between courts in order to get a better

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mount in the appellate courts.” State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d

682, 685 (2002) (citations and quotation marks omitted).

We review the trial court’s characterization of the Stipulation as a temporary

or permanent order de novo:

[W]hether an order is temporary or permanent in nature is a question of law, reviewed on appeal de novo.

As this Court has previously held, an order is temporary if either (1) it is entered without prejudice to either party; (2) it states a clear and specific reconvening time in the order and the time interval between the two hearings was reasonably brief; or (3) the order does not determine all the issues.

Smith v. Barbour, 195 N.C. App. 244, 249, 671 S.E.2d 578, 582 (2009) (citations,

quotation marks, and brackets omitted).

Neither the title of an order nor the intentions of the parties or court at the

time of entry of the order controls whether an order is treated as temporary or

permanent, as a temporary order may become permanent after a reasonable passage

of time. See id. (“[T]he trial court’s designation of an order as ‘temporary’ or

‘permanent’ is not binding on an appellate court.” (citation omitted)); see also

LaValley v. LaValley, 151 N.C. App. 290, 292-93, 564 S.E.2d 913, 915 (2002) (“[The

order] was, however, converted into a final order when neither party requested the

calendaring of the matter for a hearing within a reasonable time after entry of the

[o]rder.” (footnotes omitted)).

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First, as Mother’s argument recognizes, it is not apparent that the trial court

treated the Stipulation as a permanent order, so we must consider what, if anything,

the trial court concluded about whether the Stipulation was permanent or temporary.

The Custody Order does not address this issue directly, but overall, the Custody

Order’s findings and conclusions treat the determination of custody as an initial

ruling on permanent custody and did not treat the Stipulation as a permanent order.

The Custody Order tacitly treated the Stipulation as a temporary order, just as it

treated its own 3 June 2021 Temporary Order as a temporary order. Neither party

filed a motion in the North Carolina action to modify the Stipulation and both parties’

pleadings treated the custody issue before the trial court as an initial determination

following a temporary emergency order entered in New York. Although we recognize

those pleadings do not necessarily control the issue, we also note neither party argued

at the hearing that the Stipulation should be considered as a permanent order or that

the trial court should consider modification based upon a substantial change in

circumstances since entry of the Stipulation.

Mother’s primary argument at trial was that as a natural parent, she had a

constitutional right to custody unless she was found by clear and convincing evidence

to be unfit as a parent or she had acted inconsistently with her rights as a parent.

And in keeping with the parties’ arguments at the hearing, the only mention of a

“permanent agreement” in the Custody Order is included in one of the trial court’s

conclusions addressing how Mother had acted inconsistently with her

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constitutionally protected rights as a parent. Specifically, the trial court concluded:

9. Based on clear and convincing evidence, since [Sam’s] birth, . . . [M]other has acted inconsistently with her constitutionally protected status as a parent by, including but not limited to, the following, in that:

a. Since [Sam’s] birth, [Mother] has been employed but has provided no child support to [Grandfather] despite [Mother’s] ability to provide some monetary support.

b. The June 2019 New York temporary agreement became more of a permanent agreement in that [Mother] took no court action to regain custody of [Sam] in the New York court or in any other court until [Grandfather] filed this action for custody;

c. [Mother] also did not timely act under the terms and conditions of the temporary agreement to rectify her home, but expected [Grandfather] to pay for the remediation or repairs to her home in New York (the home he’d helped her to buy);

d. During her visits on the phone or in person with [Sam], [Mother] has made very little effort to establish a parent/child bond with [Sam], and, instead, has focused primarily on memorializing visits and calls in the form of photos and videos and in lambasting [Grandfather] for his care of [Sam] while [Sam] is present.

(Emphasis added.)

The rest of Conclusion No. 9 includes twelve more subparagraphs. In

summary, these subparagraphs address Mother’s profanity and screaming during

phone calls to Grandfather; her failure to spend quality time with Sam when visiting

in North Carolina; her failure to consult with Sam’s medical providers and to

participate in Sam’s medical and psychological care; Mother’s consistent and repeated

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rejection of Sam’s diagnoses made by qualified medical professionals; her failure to

truthfully answer Grandfather’s complaint by “admitting” the child’s father was

“unknown” while she did know the identity of the child’s biological father; her

“disregard of the truth” which included the potential to affect the health of the child;

and her intent to remain in New York and not to move to be closer to Sam.

Considering the words “more of a permanent agreement” in context, Mother is

correct: the trial court did not conclude the Stipulation was a permanent order or

that it should be treated as such due to passage of time. Instead, the trial court’s

statement that the “June 2019 New York temporary agreement became more of a

permanent agreement” because Mother took no action to regain custody was not a

conclusion that the trial court was treating the Stipulation as a permanent order.

(Emphasis added.) Instead, the trial court was simply describing Mother’s failure to

take action to regain custody either in New York or North Carolina until after

Grandfather filed for custody here. Thus, we need not address the part of Mother’s

argument that the trial court erred by treating the Stipulation as a permanent order

further. We will not address Grandfather’s argument that the trial court correctly

treated the Stipulation as a permanent order because that is not what the trial court

determined and because neither party presented this argument to the trial court.

The trial court treated the Stipulation as a temporary order, and the trial court did

not err by treating it as a temporary order.

There is no dispute that the Stipulation entered in New York about 2 weeks

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after Sam’s birth was intended to be temporary. It was entered to address an urgent

situation upon his birth: Mother’s home was not safe for a baby; there were serious

concerns regarding Mother’s mental health; and Grandfather was the only other

available person to care for Sam, but Grandfather lives in North Carolina. As a non-

parent, he needed the ability and authority to take Sam to North Carolina and to

make decisions regarding Sam’s medical care and other needs. The Stipulation did

not determine all issues. The Stipulation set out specific requirements for Mother to

be able to regain custody of Sam and to ensure Mother would be able to care for Sam

safely; she was required to remediate the mold in her home and to have a mental

health evaluation and follow treatment recommendations. The only factor favoring

treating the Stipulation as a permanent order was that it did not set a date for

another hearing, although the terms of the Stipulation clearly anticipated further

hearings to review Mother’s progress and compliance.11

After de novo review, we conclude the trial court properly considered the

Stipulation was a temporary order and the Stipulation did not convert to a permanent

11 We also note the Stipulation was entered under New York law and provided it should be “construed

in accordance with and shall in all respects be governed by the Laws of New York now or hereafter in effect, without giving effect to the choice of law provisions thereof, and regardless of where the parties, or either of them, in fact reside.” (Emphasis added.) Although it is clearly a temporary custody order, it is different in many respects from North Carolina temporary orders entered under North Carolina General Statute Chapter 50. See generally N.C. Gen. Stat. Ch. 50 (2023). New York and North Carolina have substantial differences in court processes and procedures, especially in Family Court. See generally N.Y. Legis. 686 (2023). We recognize the possibility that New York statutes or rules of the Suffolk County Family Court may set out or anticipate additional proceedings even though the Stipulation did not specifically set a court date, but as neither party made this argument to the trial court or addressed it on appeal, we will not address it either.

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order based on the passage of one year. However, we also note that even if we treated

the Stipulation as a permanent order, the result would be the same. The trial court’s

extensive and detailed findings of fact set out many substantial changes in

circumstances affecting the best interest of the minor child, even if it does not use

those exact words. Sam was less than 3 weeks old when the Stipulation was entered;

at the time of the hearing, he was age three. The substantial changes in

circumstances affecting his best interests are so obvious in the trial court’s 144

findings of fact we will not belabor this point further. See Shipman v. Shipman, 357

N.C. 471, 479, 586 S.E.2d 250, 256 (2003) (“[T]he effects of the substantial changes in

circumstances on the minor child in the present case are self-evident, given the

nature and cumulative effect of those changes as characterized by the trial court in

its findings of fact.”).

V. Mother’s Constitutionally Protected Rights as a Parent

Mother’s last argument is that “[t]he trial court erred by conducting a best

interests of the child analysis to determine custody when mother has not acted

inconsistently with her constitutionally protected status as a parent and is not unfit.”

“A trial court’s determination that a parent has acted inconsistently with his or her

constitutionally protected status as the parent is subject to de novo review[.]” In re

B.R.W., 381 N.C. 61, 77, 871 S.E.2d 764, 775 (2022) (citation omitted).

We first note that the trial court’s 144 findings of fact made by “clear and

convincing evidence” are all binding on this Court. See Scoggin, 250 N.C. App. at

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117-18, 791 S.E.2d. at 526. Most of the findings were not challenged on appeal, and

Mother has not shown merit in her challenges to the rest of the findings, as discussed

above. Most of Mother’s argument focuses on her efforts to improve her situation and

her view of the evidence. For example, she argues she

has diligently worked toward [Sam’s] return. The trial court found that, per the terms of the temporary New York order, Mother completed the psychological examination and that Mother “had professionals in to clear the mold” and spent over $10,000 on remediation to make her home safe for [Sam’s] return, but it still “took a long time to get the mold totally removed.”

Mother is correct that the order does include some findings favorable to her,

such as the findings about ways she complied with the Stipulation. In fact, the trial

court did not find Mother was unfit as a parent but concluded she “is a fit and proper

person to have visitation” with Sam. But overall, the findings show Mother’s contact

with Sam was very limited, although Grandfather did not prevent Mother from

visiting or participating in Sam’s medical visits and care. Instead, he “paid for the

majority of [Mother’s] flights from New York to North Carolina in the first few

months.” He also provided information regarding Sam’s medical providers, but

Mother refused to communicate with them.

Sam’s medical needs were an important factor in this case. The trial court

made extensive findings regarding Sam’s medical issues, including a hospitalization

at about eighteen months old. Sam had “developmental problems including muscles

in the right foot and hip,” delays in his “speech development” and “issues with his

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hands.” By April 2022, Sam was diagnosed with “level III of autism” for which he

was receiving “daily therapy” in addition to “physical therapy twice a week,

occupational once a week and speech therapy once a week.” Although Mother was

informed about these medical needs and had more than a year to arrange for a

transition of care to New York, Mother “presented no plan for any kind of therapy for

[Sam].” Mother also “has no childcare arrangements for [Sam] while she works

because she plans to take” him with her to work. “[Mother] made one visit with

[Grandfather] to [Sam’s] pediatrician in December, 2019. She looked up the doctor’s

credentials and did not like them.” She did not participate in Sam’s care or

communicate with Sam’s medical providers although Grandfather provided

information for all the providers on Our Family Wizard. Mother provided no financial

support for Sam, although she was employed. In contrast, Grandfather provided for

all Sam’s needs and took Sam to “approximately 120 medical appointments” in the

two years preceding the hearing.

The trial court also made many findings addressing Mother’s increasingly

hostile behavior toward Grandfather and that her angry outbursts sometimes were

in Sam’s presence. The trial court made detailed findings regarding Mother’s

“numerous calls to [Grandfather] in which she screamed at him, used a lot of

profanity directed toward [Grandfather] and repeated the profanity over again

multiple times in each call. On at least two occasions, [Sam] was present and became

upset during the calls.”

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Mother had some visits in New York with Sam but had never taken him to her

home, even after the mold remediation was done, because “she only wants him there

when he permanently comes to live with her.” Despite Sam’s autism and difficulty

adjusting to changes in his environment, Mother “refused to take into consideration

any affect that a new place to live or to stay overnight would have on [Sam] and has

proposed no plan of transition for [Sam] if she is awarded custody.” Overall, the

findings indicate Mother was entirely unprepared to care for a child with Sam’s

extensive developmental and medical needs, nor had she made any effort to address

these issues.

We will not repeat the extensive findings the trial court relied on to conclude

Mother had acted inconsistently with her constitutionally protected rights as a

parent, but the trial court relied primarily on the facts noted above in our discussion

of Conclusion of Law No. 9. In addition, the trial court made extensive findings

regarding Grandfather’s care for Sam, his efforts to assist Mother, and his close and

loving relationship with Sam.

As our Supreme Court directed in In re B.R.W., 381 N.C. at 82-84, 871 S.E.2d

at 779-80 (citations, quotation marks, and brackets omitted), the trial court must

examine the facts of each case to determine if a parent has acted in a manner

inconsistent with her rights as a parent:

[U]nfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy, but other types of conduct, which must be viewed on

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a case-by-case basis, can rise to this level so as to be inconsistent with the protected status of natural parents. For that reason, there is no bright line rule beyond which a parent’s conduct meets this standard; instead, we examine each case individually in light of all of the relevant facts and circumstances and the applicable legal precedent. Boseman, 364 N.C. at 549, 704 S.E.2d 494. See also Estroff v. Chatterjee, 190 N.C. App. 61, 64, 660 S.E.2d 73 (2008) (acknowledging that no litmus test or set of factors can determine whether this standard has been met.). In conducting the required analysis, evidence of a parent’s conduct should be viewed cumulatively.

Finally, we reiterated in Owenby that a parent’s failure to maintain personal contact with the child or failure to resume custody when able could amount to conduct inconsistent with the protected parental interests.

In Price, we directed trial courts, in evaluating cases involving nonparental custodial arrangements, to consider the degree of custodial, personal, and financial contact the parent maintained with the child after the parent left the child in the nonparent’s care.

Finally, in Speagle, we held that, when a trial court resolves the issue of custody as between parents and nonparents, any past circumstance or conduct which could impact either the present or the future of a child is relevant, notwithstanding the fact that such circumstance or conduct did not exist or was not being engaged in at the time of the custody proceeding.

The trial court’s extensive factual findings support its conclusion that Mother

acted inconsistently with her constitutionally protected rights as a parent and the

trial court therefore correctly considered the best interests of the child in awarding

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custody to Grandfather.

VI. Conclusion

As we determine the trial court properly exercised jurisdiction under the

UCCJEA, its findings are supported by competent evidence, and the findings are

sufficient to conclude Mother acted inconsistently with her protected status as a

parent, we affirm the trial court’s Custody Order.

AFFIRMED.

Chief Judge DILLON and Judge ZACHARY concur.

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