Malone-Pass v. Schultz

• Court: Court of Appeals of North Carolina
• Decided: December 7, 2021
• Docket: 20-911
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-656

No. COA20-911

Filed 7 December 2021

Cumberland County, No. 17CVD9178

KELLY MALONE-PASS, Plaintiff,

v.

DAVID SCHULTZ, Defendant.

Appeal by plaintiff from order entered on or about 4 November 2019 by Judge

Edward A. Pone in District Court, Cumberland County. Heard in the Court of

Appeals 25 May 2021.

Culbertson & Associations, by K.E. Krispen Culbertson, for plaintiff-appellant.

No brief filed by defendant-appellee.

STROUD, Chief Judge.

¶1 Kelly Malone-Pass (“Mother”) appeals from an amended order granting David

Schultz (“Father”) sole legal and physical custody of their two minor children and

denying Mother visitation with the children. Mother first argues the trial court

lacked subject matter jurisdiction or should have declined to exercise it under North

Carolina General Statute § 50A-208(a). N.C. Gen. Stat. § 50A-208(a) (2019). Mother

then challenges Findings of Fact and Conclusions of Law that she acted

inconsistently with her constitutionally protected status as a parent, that Father was MALONE-PASS V. SCHULTZ

Opinion of the Court

a fit and proper person to have sole legal and physical custody, that granted Father

sole legal and physical custody, and that determined it was not in the children’s best

interest to have visitation with Mother. After de novo review, we hold the trial court

had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act

(“UCCJEA”) and that North Carolina General Statute § 50A-208(a)’s jurisdictional

bar does not apply here. In addition, we hold that the trial court’s Findings of Fact

support its ultimate Findings and Conclusions of Law that it was in the children’s

best interest for Father to have sole legal and physical custody and for Mother to have

no visitation, and the trial court did not abuse its discretion by entering this order.

Therefore, we affirm.

I. Background

¶2 The uncontested Findings of Fact in this case show the proceedings in North

Carolina started when Mother filed a petition to register a foreign child custody order

from New York in late 2017.1 The New York custody order granted Mother and

Father joint custody, with the children, D.S. and A.S.,2 living primarily with Father,

and set out visitation schedules. The New York order also required the parties to

1 The record in this case was filed by Mother as the “Proposed Record on Appeal.”

Father did not file any “notices of approval or objections, amendments, or proposed alternative records on appeal,” so Mother’s “proposed record on appeal thereupon constitutes the record on appeal.” N.C. R. App. P. Rule 11(b). 2 We use the children’s initials to shield their identity. MALONE-PASS V. SCHULTZ

register the order in North Carolina within seven days and stated that “New York

State is relinquishing jurisdiction.” The North Carolina trial court “asserted and

assumed jurisdiction from New York over the minor children and the parties,” finding

at the time “both parties and the children resided in North Carolina.”

¶3 Later, “both parties filed subsequent motions and countermotions for North

Carolina to assert jurisdiction, civil contempt, and motions to modify child custody

due to a substantial change in circumstances affecting the welfare of the minor

children.” Mother’s motion alleged she was a resident of both New York and of North

Carolina. Over the course of 2018 and into early 2019, the trial court entered a

number of orders that granted Father temporary custody of the children and set

various visitation schedules for Mother. Mother failed to appear at one of these

hearings. Also during 2018, both parents moved, Father to Summerville, South

Carolina and Mother to Massachusetts.

¶4 In March 2019, Mother, claiming residence in Massachusetts, filed a domestic

violence action against Father in Massachusetts and obtained a domestic violence

protective order from the Massachusetts court; this order also granted her emergency

temporary custody of the children. Pursuant to the Massachusetts order, Mother

traveled to South Carolina, took custody of the children, and brought them to

Massachusetts with her. In response, Father filed before the North Carolina trial

court an emergency motion to suspend Mother’s visitation, alleging that Mother had MALONE-PASS V. SCHULTZ

made fraudulent claims before the Massachusetts court. The Massachusetts court

then dismissed the action and dissolved its orders nunc pro tunc. The same day as

the Massachusetts court’s action, the North Carolina trial court held a hearing on the

issue. The North Carolina court ordered the children be returned to Father’s custody

in compliance with its previous orders and notwithstanding the Massachusetts action

because North Carolina was the only state with subject matter jurisdiction regarding

child custody.

¶5 Following the Massachusetts incident, the trial court held multiple hearings

over the course of April 2019, culminating in the May 2019 order and amended order.

On 3 April 2019, the trial court held an in-chambers discussion with the children

about the Massachusetts incident and found the children:

are very upset with . . . Mother for taking them from South Carolina. The anger had not subsided; however, during the course of the conversation, the court determined that they still loved their [M]other. The minor children did not want to visit with their [M]other, however, they understood the court was likely to order visitation. It was clear that they wanted the visits to be in South Carolina if there was going to be visitation. They did not want to travel to Massachusetts. The minor children gave no indication that . . . Father had influenced them in any way or talked negatively about . . . [M]other.

The court also barred Mother and Father from asking the children about the in-

chambers conversation between the court and the children. Following the hearing,

the court allowed Mother to take the children to lunch. At the lunch, among other MALONE-PASS V. SCHULTZ

events, Mother asked the children about the in-chambers conversation they had with

the court, thereby violating the court’s order. The trial court made an unchallenged

Finding of Fact that the lunch “added further toxicity to the relationship” between

the children and Mother. Following that lunch, Father filed a motion to suspend

Mother’s visitation, and the court held a hearing on that motion on 11 April 2019.

The April hearings culminated in an amended order on 9 May 2019 granting

temporary joint custody to Mother and Father with Father having temporary legal

and physical custody of the children. The trial court set a visitation schedule for

Mother, but it also stated: “The minor children will not be forced to visit with

[Mother] if they choose not [to] do so and they must inform . . . [Mother] of

their desire not to visit with [Mother].” (Bold and italics in original.)

¶6 The court held a final hearing on the motions for modification of the New York

custody order on 14–16 August 2019. The day before the hearing, Mother filed a

motion to dismiss alleging the court lacked subject matter jurisdiction, and she then

renewed that motion in court at the beginning of the hearing. Mother argued that

New York had subject matter jurisdiction, not North Carolina, that Father had

committed fraud by telling the New York court he would live permanently in North

Carolina with the children, and that the New York court would be the best place to

address the fraud issue. In Findings of Fact and a Conclusion of Law which Mother

challenges on appeal, the trial court found North Carolina had subject matter MALONE-PASS V. SCHULTZ

jurisdiction to modify the New York custody order and therefore denied Mother’s

motion to dismiss. The trial court’s ruling was based on unchallenged Findings of

Fact that Father and the children moved to North Carolina in March 2017 and lived

there continuously for more than six months before the action was filed, that Mother

previously acknowledged and averred to those facts, and that the New York order

specifically stated the parties were required to register the order in North Carolina

within seven days and that New York was relinquishing jurisdiction.

¶7 Following the hearing in mid-August 2019, the trial court appointed a

Guardian Ad Litem (“GAL”) so that the children’s “voices could be heard.” The GAL

spoke with both parties and the children and prepared a report for the court. The

court held a hearing about the GAL’s report in September 2019 where it received her

report into evidence, heard testimony about it, and allowed the parties the

opportunity to question the GAL. Mother was not present at the hearing without

explanation, and Father had his attorney present although the attorney did not ask

the GAL any questions.

¶8 The August and September 2019 hearings led to the trial court’s order now on

appeal, the “Order on Motions to Modify Custody/Contempt,” in November 2019.

(Capitalization altered.) The order granted Father sole legal and physical custody of

the children, denied Mother visitation because it was not in the best interest and

welfare of the children, and dismissed the contempt issues as moot. To support those MALONE-PASS V. SCHULTZ

orders, the trial court made numerous unchallenged Findings of Fact. Beyond the

issues discussed above, the trial court made the following unchallenged Findings of

Fact by “clear, cogent and convincing evidence.” (Underline in original.)

¶9 First, the trial court made Findings about the children’s living arrangements

with Father. The children lived with Father from the start of the case, and Father

and the children moved to North Carolina with the previous family therapist’s

approval. The trial court further found the children were doing well with Father.

The court noted that prior to the Massachusetts incident, “The children were not in

any danger. They were very happy in the home of . . . [F]ather. They were doing well

in school.” The children also continued to do well in their Father’s care following the

time their Mother took them to Massachusetts, with the court finding at the time of

the order:

174. The minor children are doing well in their [F]ather’s care. They are both doing well in school and are happy in the home of their [F]ather and step-mother. 175. [A.S.] developed encopresis which had been treated following the removal and placement in foster care in Colorado.[3] It recurred and he had a few incidents after . . . [M]other removed him from South Carolina with the Massachusetts order which was subsequently dismissed. It is stress related and he is having less stress since the visitation [with Mother] had stopped. 176. They are doing much better now in therapy. They

3 Prior to living in New York, Mother and the children had resided in Colorado, where

there was an investigation by child protective services that resulted in the children being removed from Mother’s care and being placed in foster care. MALONE-PASS V. SCHULTZ

enjoy the sessions as it is now totally focused on them. They enjoy school and they have good grades. 177. They attend [redacted] High School. [D.S.] is playing football and running track. His grades last year were all A’s except a B in Spanish.

¶ 10 The trial court also considered and ultimately rejected Mother’s evidence that

Father was harming her and the children. Mother introduced evidence from the

children’s therapist with accusations that Father had “heavily coached” the children

to “alienate[]” them from Mother and that Father was “fixated about making

accusations against” Mother. After reviewing and evaluating the evidence, the trial

court made unchallenged Findings the therapist’s accusations were “without a valid

basis” and based on “assumptions he was not in a position to make.” The trial court

also made further Findings about the Massachusetts incident, concluding in line with

the Massachusetts court that Mother had falsely alleged domestic violence:

127. On or about March, 2019, she went to the Massachusetts court and obtained a DVPO [domestic violence protection order] with custody provisions by making false statements and testimony to the Massachusetts court. ... 129. She alleged domestic violence which was not true. ... 132. She lied to the Judge in Massachusetts to the point that the matter was not just dismissed but vacated nunc pro tunc. 133. The Judge was clearly disgusted with the whole process as she had questioned . . . [M]other extensively at the ex-parte hearing as she felt she did not have jurisdiction. MALONE-PASS V. SCHULTZ

134. The Court determined . . . [M]other made false statements. She uprooted the children and took them to a state in which they had never lived. 135. She told the Judge at the Ex-parte hearing that she and the children had lived there since September, 2018. That she had to have surgery so she took the children to . . . [F]ather to stay. She further alleged domestic violence including harm to the children, all of which was untrue.

¶ 11 Beyond the unchallenged Findings about Father, the trial court also made

unchallenged Findings about Mother’s actions and relationship with the children.

First, the trial court noted the negative impact the Massachusetts incident had on

the children. The trial court found the incident “was a very traumatic experience for

both boys” that “is having a lasting impact upon them emotionally.” Mother

“disrupted their education in that she took them without warning, did not enroll them

in school and cut off their contact with their [F]ather and stepmother as well as their

friends. (This lasted for approximately two (2) weeks.).” The trial court found the

children viewed the situation as Mother having “essentially kidnapped them.” As a

result, the children were “angry” with Mother and “no longer want[ed] to have contact

with” Mother because of Mother’s actions. At the time, Mother had not realized the

impact of the Massachusetts incident, and the trial court also found she still did not

“demonstrate an appreciation for the trauma she caused.”

¶ 12 The trial court also made unchallenged Findings beyond the Massachusetts

incident. It found Mother hindered the children’s therapy by “dominat[ing] the MALONE-PASS V. SCHULTZ

sessions” such that they “obtained little if any benefit.” Once the children

transitioned to individual therapy without Mother, they started “doing much better

in therapy.” Further, the trial court made an unchallenged Finding that it is “very

likely” that Mother “suffers from mental or emotional issues of unknown etiology.”

¶ 13 Finally, the trial court made several unchallenged Findings of Fact about the

children’s resistance to continued visitation with Mother. Even before the trial court

got involved, the children were “resistant to visiting” with Mother, although under a

therapist’s supervision they initially graduated from supervised visitation to

unsupervised visitation. Following the Massachusetts incident, the children told the

court at the in-chambers meeting they “did not want to visit with” Mother. Following

that time, “[t]he children have become increasingly resistant to visiting with” Mother.

Ultimately, by the time the order was entered, the trial court found the children “do

not want to visit with or even talk to” Mother. The children even “declined to have

dinner or otherwise visit with” Mother during the trial. The trial court further found

Mother had “disrupt[ed] the peace and tranquility of the minor children’s lives in her

effort to force visitation on them.” The stress of visitation was so great that it caused

one of the children to suffer a reoccurrence of a stress-related ailment that has

improved since visitation stopped, which decreased the children’s stress levels.

¶ 14 Based upon all these Findings, the trial court granted Father sole legal and

physical custody of the children and denied Mother visitation, finding it was not in MALONE-PASS V. SCHULTZ

the best interest and welfare of the children. This Court allowed Mother’s petition

for writ of certiorari “for purposes of reviewing the ‘Order on Motions to Modify

Custody/ Contempt’” and the amended order.

II. Subject Matter Jurisdiction

¶ 15 Mother first argues the trial court lacked subject matter jurisdiction. The

argument takes two forms. First, Mother lists a number of “[e]xception[s],” all of

which relate to the trial court’s denial of Mother’s motion to dismiss based on lack of

subject matter jurisdiction or the trial court’s Findings of Fact and Conclusions of

Law on subject matter jurisdiction. We note that exceptions were eliminated in

changes to the Rules of Appellate Procedure effective as of October 2009. See 363

N.C. at 901, 935–38 (enacting new Rules of Appellate Procedure and listing new Rule

10 as well as history of changes, including “delet[ion of] former 10(a)”); 324 N.C. at

638 (laying out old Rule of Appellate Procedure 10(a), requiring assignments of error);

287 N.C. at 698–99 (recounting Rule of Appellate Procedure 10(a) as originally

enacted, which includes the term “exceptions” in the places where Rule 10(a) before

2009 used the term “assignments of error” and requires “exceptions” to be the basis

of assignments of error).4 Although this method is not in compliance with the Rules

4 This citation sentence cites to appendices in the hardcopy versions of the North

Carolina Reporter. A citation to the hardcopy is required because the online versions of the North Carolina Reporter on Westlaw and Lexis do not include the appendices nor historical versions of the North Carolina Rules of Appellate Procedure. MALONE-PASS V. SCHULTZ

of Appellate Procedure, we will treat Mother’s “exceptions” as challenges to the noted

Findings of Fact and Conclusions of Law.

¶ 16 Mother’s other arguments on subject matter jurisdiction are more specific.

First, Mother argues the trial court should have declined to exercise jurisdiction

pursuant to North Carolina General Statute § 50A-208(a) because “any subject

matter jurisdiction” the trial court “might have obtained was the result of fraud.”

(Capitalization altered.) Specifically, Mother argues she had evidence that Father

“falsely represented to her and the New York court that he planned to live in North

Carolina at least until the children graduated from high school.” As part of this

argument under § 50A-208(a), Mother would have to demonstrate that the New York

court, as a “court of the state otherwise having jurisdiction,” did not determine “that

this State [North Carolina] is a more appropriate forum.” N.C. Gen. Stat. § 50A-

208(a)(2) (citations omitted). Mother’s response to this exception to § 50A-208(a)’s

requirement for a trial court to decline jurisdiction in certain situations is that, “it

would be up to the New York court to make the determination that North Carolina

would be the more appropriate forum.” The crux of these arguments is again that

“the trial court erred in finding and concluding that North Carolina had subject

matter jurisdiction and had jurisdiction to modify the New York custody order” and

denying Mother’s motion to dismiss on those grounds. (Capitalization altered.) MALONE-PASS V. SCHULTZ

A. Standard of Review

¶ 17 Oddly, Mother filed the “Petition for Registration of Foreign Child Custody

Order” and the “Motion for Modification of Parenting Time Schedule” that led to the

order from which Mother appeals. (Capitalization altered.) See Booker v. Strege, 256

N.C. App 172, 174, 807 S.E.2d 597, 599 (2017) (“Oddly, it was defendant who filed for

modification of custody in North Carolina[.]”). “[N]onetheless, a party cannot confer

subject matter jurisdiction on a court merely by requesting relief in it.” Id. (citing In

re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (“Subject matter jurisdiction

cannot be conferred upon a court by consent, waiver or estoppel, and therefore failure

to object to the jurisdiction is immaterial. Because litigants cannot consent to

jurisdiction not authorized by law, they may challenge jurisdiction over the subject

matter at any stage of the proceedings, even after judgment.” (noting alterations))).

“Whether a trial court has subject-matter jurisdiction is a question of law, reviewed

de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592

(2010); see also Matter of T.R., 250 N.C. App. 386, 389, 792 S.E.2d 197, 200 (2016)

(“The issue of whether a trial court possesses jurisdiction under the UCCJEA is a

question of law that we review de novo.”) (citing In re J.H., 244 N.C. App. 255, 260,

780 S.E.2d 228, 233 (2015)).

B. Analysis

¶ 18 As explained above, Mother challenges both the general Findings of Fact and MALONE-PASS V. SCHULTZ

Conclusions of Law determining the trial court had subject matter jurisdiction by

listing exceptions and makes a specific challenge to such jurisdiction via North

Carolina General Statute § 50A-208(a). We first address the general argument that

the trial court lacked subject matter jurisdiction and then turn to the specific

argument pursuant to § 50A-208(a).

1. Subject Matter Jurisdiction Generally

¶ 19 Since the original child custody order in this case is from New York, the

applicable provision of the UCCJEA is North Carolina General Statute § 50A-203,

which addresses when North Carolina courts can modify a “child-custody

determination made by a court of another state.” N.C. Gen. Stat. § 50A-203 (2019).

Under the applicable provisions of N.C. Gen. Stat. § 50A– 203, a North Carolina court may modify an out-of-state child custody determination if both (1) North Carolina “has jurisdiction to make an initial determination under G.S. 50A–201(a)(1) or G.S. 50A–201(a)(2)” and (2) “[t]he 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[.]” N.C. Gen. Stat. § 50A–203(1) (emphasis added).

Matter of T.R., 250 N.C. App. at 389, 792 S.E.2d at 200 (footnote omitted) (all

alterations and emphasis in original).

¶ 20 The first part of § 50A-203’s test imports the requirements from § 50A-201(a).

The latter section states: MALONE-PASS V. SCHULTZ

(a) Except as otherwise provided in G.S. 50A-204, a court of this State has jurisdiction to make an initial child- custody determination only if: (1) This State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State; (2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under G.S. 50A-207 or G.S. 50A-208, and: a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and b. Substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

N.C. Gen. Stat. § 50A-201(a) (2019). The term “home state” is defined as:

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

N.C. Gen. Stat. § 50A-102(7) (2019).

¶ 21 Here, North Carolina was the home state for the children when the child

custody proceeding commenced. The uncontested Findings of Fact found: “The MALONE-PASS V. SCHULTZ

children and . . . [F]ather resided in North Carolina for more than six consecutive

months immediately preceding the filing of the matter. (March, 2017 until the

registration in December, 2017 and the filings beginning in January, 2018).” This

Finding of Fact was based on Mother’s own original Motion for Modification of

Parenting Time Schedule that indicated both children lived with Father in North

Carolina for the past six months. Thus our de novo review does not find anything

different from the trial court. Because a parent, Father, and the children lived in

North Carolina for at least six months before proceedings began, North Carolina is

the home state. N.C. Gen. Stat. § 50A-102(7). Because North Carolina is the home

state, its courts, including the trial court, had jurisdiction under § 50A-201(a)(1).

¶ 22 Turning to the second requirement to modify an out-of-state child custody

order, § 50A-203 requires “[t]he court of the other state [to] determine[] 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[.]” Matter of T.R., 250 N.C.

App. at 389, 792 S.E.2d at 200 (citing N.C. Gen. Stat. § 50A-203(1)) (first and last

alterations in original). Here, as the trial court found, the New York child custody

order specifically stated it was “relinquishing [j]urisdiction,” once as a freestanding

statement and once when it ordered the parents to register the order in North

Carolina within seven days. Thus, the second jurisdictional requirement to modify

an out-of-state child custody order is also met. Because both requirements of § 50A- MALONE-PASS V. SCHULTZ

203 are met, we conclude after de novo review that the trial court had subject matter

jurisdiction.

2. Jurisdiction and § 50A-208(a)

¶ 23 Turning to Mother’s second argument, we must address whether the trial court

should have declined to exercise jurisdiction under North Carolina General Statute §

50A-208(a). That section provides: “Except as otherwise provided in G.S. 50A-204 or

by other law of this State, if a court of this State has jurisdiction under this Article

because a person seeking to invoke its jurisdiction has engaged in unjustifiable

conduct, the court shall decline to exercise its jurisdiction unless” one of its exceptions

applies. N.C. Gen. Stat. § 50A-208(a). The exceptions5 that allow the court to still

exercise jurisdiction are:

(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction; (2) A court of the state otherwise having jurisdiction under G.S. 50A-201 through G.S. 50A-203 determines that this State is a more appropriate forum under G.S. 50A-207; or (3) No court of any other state would have jurisdiction under the criteria specified in G.S. 50A-201 through G.S. 50A-203.

N.C. Gen. Stat. § 50A-208(a)(1)–(3).

¶ 24 Here, the trial court’s undisputed Findings of Fact show that the lower court

5 This specifically refers to the exceptions in § 50A-208(a)(1)–(3) because the opening

clause’s references to § 50A-204 or other law in North Carolina do not apply. MALONE-PASS V. SCHULTZ

fully considered Mother’s allegations of Father’s fraud and simply did not find them

credible. The trial court heard from Mother and reviewed both the New York order

and court file. The trial court found the necessary facts to support subject matter

jurisdiction. A review of the transcript from the trial court hearing further supports

that the trial court fully considered the alleged fraud issue; it asked questions of

Mother and took time to review the papers throughout. At one point, the trial court

even said, “I’m just going to let her [Mother] argue at this point,” after Father’s

attorney made repeated motions to strike Mother’s arguments and the trial court had

previously sustained Father’s objections.

¶ 25 We further note that the “fraud” alleged by Mother was Father’s

representation that he “planned to live in North Carolina at least until the children

graduated from high school” but he later moved to South Carolina. There is no

question that he and the children did live in North Carolina for one year and three

months (March 2017 to June 2018) and he later moved to South Carolina. Normally,

fraud is a misrepresentation of a past or existing fact. See Odom v. Little Rock & I-

85 Corp., 299 N.C. 86, 91, 261 S.E.2d 99, 103 (1980) (requiring for a prima facie case

of fraud that a plaintiff show “(a) that the defendant made a representation relating

to some material past or existing fact . . . .” (Emphasis added.)), overruled on other

grounds Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 374 S.E.2d

385 (1988). Mother does not allege that Father misrepresented his actual residence MALONE-PASS V. SCHULTZ

in North Carolina. Home state jurisdiction under the UCCJEA is based upon the

actual residence of the parent and children for a period of at least six months, N.C.

Gen. Stat. § 50A-102(7), and there is no question that Father and the children did

reside in North Carolina for this time, even if they later moved. The UCCJEA does

not base jurisdiction on where a parent plans or intends to reside in the future, but

on the actual residence. Thus, we do not find support for invoking § 50A-208(a)’s

jurisdictional bar based on unjustifiable conduct.

¶ 26 But even if we assume Father made some misrepresentation of his future

intent, this case would fall within the exceptions in § 50A-208(a)(1)–(3). First, the

parents acquiesced in the exercise of jurisdiction, meeting the requirement of § 50A-

208(a)(1). Parents can acquiesce to jurisdiction by registering an out-of-state child

custody order here or by filing a child custody action in the state. Quevedo-Woolf v.

Overholser, 261 N.C. App. 387, 411, 820 S.E.2d 817, 833 (2018). While Father does

not challenge jurisdiction, we note he acquiesced in jurisdiction when he filed a

motion to modify custody in the case. As with the plaintiff in Quevedo-Woolf, Mother

here acquiesced to the exercise of jurisdiction both by registering the New York

custody order here and by filing her own motion to modify child custody here. Id.

Mother argues she only arguably acquiesced to jurisdiction in North Carolina “on the

basis of [Mother]’s reasonable reliance upon [Father]’s false representations that he

intended to remain in North Carolina with the children.” MALONE-PASS V. SCHULTZ

¶ 27 Beyond Mother’s acquiescence to jurisdiction, the exception in § 50A-208(a)(2)

also applies. Under that exception, when a state otherwise having jurisdiction

determines that North Carolina is the more appropriate forum, North Carolina courts

will have jurisdiction even when there has been unjustifiable conduct. N.C. Gen.

Stat. § 50A-208(a)(2). Here, New York determined North Carolina was the more

appropriate forum at the end of the child custody order Mother sought to register and

then modify. The New York order specifically stated New York was relinquishing

jurisdiction and ordered the parties to register the order in North Carolina within

seven days. Mother argues in response that “it would be up to the New York court to

make the determination that North Carolina would be the more appropriate forum.”

This argument overlooks that the New York court did just that in its order, as laid

out above. Thus, even if Father engaged in unjustifiable conduct, the North Carolina

courts would still have jurisdiction under the exception in § 50A-208(a)(2).

¶ 28 While Mother alleges Father committed fraud, the trial court made undisputed

Findings of Fact that she had engaged in fraud in Massachusetts. The trial court

recounted how Mother “gave false statements to the Court in Massachusetts in order

to obtain a DVPO [domestic violence protection order] against . . . [F]ather with

custody provisions,” how Mother falsely told the Massachusetts court that the

children lived in Massachusetts, and how Mother “alleged domestic violence

including harm to the children, all of which was untrue.” Mother’s misconduct in MALONE-PASS V. SCHULTZ

Massachusetts was so bad “that the matter was not just dismissed but vacated nunc

pro tunc,” a mechanism which exists, inter alia, “to prevent a failure of justice

resulting, directly or indirectly from delay in court proceedings subsequent to a time

when a judgment, order or decree ought to and would have been entered, save that

the cause was pending under advisement.” Perkins v. Perkins, 114 N.E. 713, 714

(Mass. 1917) (emphasis added).

¶ 29 Beyond Mother’s fraud in the Massachusetts action, Mother’s allegations

regarding jurisdiction have also been inconsistent. Mother has alleged at various

times throughout this litigation that her residence was North Carolina,

Massachusetts, or New York. Mother’s residence status was so confusing that rather

than definitively stating where she resided in the order being appealed, the trial court

could only state Mother “is currently believed to be residing in the state of

Massachusetts.” (Emphasis added.) Thus, while Mother alleges Father committed

fraud to manipulate jurisdiction, the trial court found she had engaged in that

behavior herself as well as other inconsistencies as to her residence.

¶ 30 After de novo review, we reject Mother’s § 50A-208(a) argument as well and

determine the trial court correctly determined North Carolina courts had subject

matter jurisdiction under the UCCJEA.

III. Challenges to Specific Findings of Fact and Conclusions of Law

¶ 31 Following her jurisdictional argument, Mother challenges numerous Findings MALONE-PASS V. SCHULTZ

of Fact and Conclusions of Law. As with the jurisdictional challenge, Mother’s

argument includes a list of exceptions, and we again treat them as challenges to the

specified Findings of Fact or Conclusions of Law. This time, the exceptions align with

Mother’s arguments more precisely.

¶ 32 Mother’s challenges can be broken down into specific subjects. First, Mother

argues the trial court erred in finding and concluding she “acted inconsistently with

her constitutionally protected status as a parent.” (Capitalization altered.) Further,

Mother alleges the trial court erred in finding and concluding that “[Father] is a fit

and proper person to have sole legal and physical custody” and in granting him such

custody. (Capitalization altered.) These challenges are only made in the exceptions

and the remainder of the brief does not expand upon them.

¶ 33 In contrast, Mother’s final argument includes both exceptions and further

discussion in her brief. Mother argues the trial court erred by finding and concluding,

“it is not in the best interest of the minor children to force visitation on them.”

(Capitalization altered.) In a similar vein, Mother contends the trial court erred in

“not allowing [Mother] any visitation with the minor children in that the

circumstances of the case do not give rise to complete denial of access to the minor

children.” (Capitalization altered.) Specifically, Mother argues the trial court erred

by denying all visitation because there were no findings “of physical or sexual abuse

or severe neglect of the children.” Mother further contends we should consider that MALONE-PASS V. SCHULTZ

the trial court’s May 2019 order came after Mother took the children from South

Carolina to Massachusetts and even then the trial court allowed Mother to have “full

weekend visitation (to be exercised in South Carolina) and summer visitation (which

could be exercised in Massachusetts).” After addressing the standard of review, we

address each subject in turn.

¶ 34 “When reviewing a trial court’s decision to grant or deny a motion for the

modification of an existing child custody order, the appellate courts must examine

the trial court’s findings of fact to determine whether they are supported by

substantial evidence.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253

(2003). “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. (quotation and citation omitted).

Trial courts are given “broad discretion” in child custody matters:

This discretion is based upon the trial courts’ opportunity to see the parties; to hear the witnesses; and to detect tenors, tones, and flavors that are lost in the bare printed record read months later by appellate judges. Accordingly, should we conclude that there is substantial evidence in the record to support the trial court’s findings of fact, such findings are conclusive on appeal, even if record evidence might sustain findings to the contrary.

Id., 357 N.C. at 474–75, 586 S.E.2d at 253–54 (citations and quotations omitted).

Unchallenged findings of fact are “presumed to be supported by competent evidence MALONE-PASS V. SCHULTZ

and [are] binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,

731 (1991).

¶ 35 In addition to evaluating whether findings of fact are supported by substantial

evidence, the reviewing court “must determine if the trial court’s factual findings

support its conclusions of law.” Shipman, 357 N.C. at 475, 586 S.E.2d at 254. We

review whether the findings of fact support the conclusions of law de novo. Respess

v. Respess, 232 N.C. App. 611, 614, 754 S.E.2d 691, 695 (2014) (citing Owenby v.

Young, 357 N.C. 142, 145, 579 S.E.2d 264, 268 (2003)) (other citation omitted). “If

the trial court’s uncontested findings of fact support its conclusions of law, we must

affirm the trial court’s order.” Id., 232 N.C. App. at 614–15, 754 S.E.2d at 695 (citing

Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409 (2012)).

¶ 36 We now address in turn each of the subjects in Mother’s challenges to the

Findings of Fact and Conclusions of Law, as laid out above. We briefly note a common

issue across the areas. Mother challenged only the ultimate Findings of Fact, not

Findings as to specific events and actions upon which the ultimate Findings are

based. Because unchallenged Findings of Fact are binding, Koufman, 330 N.C. at 97,

408 S.E.2d at 731, we merely need to assess whether the unchallenged Findings of

Fact that describe Mother’s conduct support the ultimate Findings of Fact. In other

words, we are assessing the challenged Findings of Fact in essentially the same way MALONE-PASS V. SCHULTZ

we would review disputed Conclusions of Law. That the challenged Findings of Fact

mirror the challenged Conclusions of Law further supports this approach. As this

Court has previously stated, findings of fact and conclusions of law that “say the same

thing . . . are best characterized as conclusions of law.” Walsh v. Jones, 263 N.C. App.

582, 589, 824 S.E.2d 129, 134 (2019). Thus, as to each of the challenged categories,

we will assess whether the unchallenged Findings of Fact support the challenged

Conclusions of Law. If they do, then, by definition, the mirroring ultimate Findings

of Fact are supported by substantial evidence. See Shipman, 357 N.C. at 474, 586

S.E.2d at 253 (“Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”) (citation and quotations omitted)

(emphasis added).

1. Findings and Conclusions on Mother’s Constitutionally Protected Status as a Parent

¶ 37 Mother’s first set of exceptions takes issue with the trial court’s Findings of

Fact and Conclusions of Law that she acted inconsistently with her constitutionally

protected status as a parent. Mother makes no argument beyond listing the

exceptions, and it is not clear to us, absent any argument to the contrary, that these

Findings and Conclusions are even relevant. As our Supreme Court recently

reiterated in Routten v. Routten, the constitutionally protected status right of parents

“is irrelevant in a custody proceeding between two natural parents . . . . In such MALONE-PASS V. SCHULTZ

instances, the trial court must determine custody using the ‘best interest of the child’

test.” See 374 N.C. 571, 577–78, 843 S.E.2d 154, 158–59 (2020) (reiterating support

for the quoted language from past cases and “expressly overrul[ing]” cases from this

Court that applied the constitutionally protected status right to disputes between two

parents) (quoting Owenby, 357 N.C. at 145, 579 S.E.2d at 267) (emphasis in original).

Since this is a dispute between two natural parents, these Findings and Conclusions

are irrelevant to the custody modification order, so we do not address them.

¶ 38 Beyond Mother expressly challenging the constitutionally protected status

Finding, one of the relevant exceptions extends the challenge to the trial court’s

Finding that she was not “a fit and proper person for care, custody, and control of the

minor children.” Fitness, or lack thereof, is part of the same constitutionally

protected status of a parent framework that does not apply to child custody disputes

between two parents, except as relevant to the denial of visitation under North

Carolina General Statute § 50-13.5(i) as discussed below. See Owenby, 357 N.C. at

145, 579 S.E.2d at 266–67 (explaining “absent a finding that parents (i) are unfit or

(ii) have neglected the welfare of their children, the constitutionally protected

paramount right of parents to custody, care, and control of their children must

prevail” before then stating that right is irrelevant in a custody proceeding between

natural parents) (quoting Petersen v. Rogers, 337 N.C. 397, 403–04, 445 S.E.2d 901,

905 (1994)). While we discuss the Finding that Mother was unfit below in the MALONE-PASS V. SCHULTZ

statutory context, we note that in the constitutional context, it is irrelevant, so we do

not address it further.

2. Findings and Conclusions on Father’s Sole Legal and Physical Custody

¶ 39 Mother’s next set of exceptions, which also contain no separate argument,

challenge the trial court’s Findings of Fact and Conclusions of Law that Father is a

fit and proper person to have legal custody and that it is in the best interest of the

children that Father have sole custody. Mother likewise listed exceptions to the trial

court’s order, which was subsequently amended, granting Father “sole legal and

physical custody.” (Emphasis omitted.) We address the Findings and Conclusions on

Father being a fit and proper person to have legal and physical custody and then

review the best interest of the child analysis.

¶ 40 As with the Findings and Conclusions on Mother’s constitutionally protected

status as a parent above, the parts of the custody modification order concerning

Father’s fitness are irrelevant. As explained above, fitness is part of the same

constitutionally protected status of a parent framework that does not apply to child

custody disputes between two parents, except as relevant to the statutory denial of

visitation scheme. Owenby, 357 N.C. at 145, 579 S.E.2d at 266–67. Rather, in child

custody disputes between two parents, the trial court determines custody solely using

the “best interest of the child” test. Routten, 374 N.C. at 578, 843 S.E.2d at 159 (citing MALONE-PASS V. SCHULTZ

Adams v. Tessener, 354 N.C 57, 61, 550 S.E.2d 499, 502 (2001)).

¶ 41 “The welfare or best interest of the child, in light of all the circumstances, is

the paramount consideration which guides the court in awarding the custody of the

minor child[ren]. It is the polar star by which the discretion of the court is guided.”

Phelps v. Phelps, 337 N.C. 344, 354, 446 S.E.2d 17, 23 (1994) (internal citations and

quotations omitted). “Trial courts are permitted to consider an array of factors in

order to determine what is in the best interest of the child[ren].” Id., 337 N.C. at 352,

446 S.E.2d at 22. “Since the trial court had the opportunity to see the parties in

person and to hear the witnesses and determine credibility,” appellate review “is

confined to whether the court abused its discretion.” Cox v. Cox, 133 N.C. App. 221,

228–29, 515 S.E.2d 61, 67 (1999).

¶ 42 Here, the trial court made extensive, unchallenged Findings of Fact to support

its ultimate Finding of Fact, similar Conclusion of Law, and order that “[i]t is in the

best interest and welfare of the minor children that . . . Father be awarded sole

custody of the minor children.” First, the trial court made numerous unchallenged

Findings of Fact indicating the children have been and are doing well living with

Father. The trial court noted the children lived primarily with Father at the start of

this case and the children’s previous therapist in New York approved that setup.

Prior to the incident when Mother took them to Massachusetts, the children were

doing well with Father, with the trial court specifically finding they were happy in MALONE-PASS V. SCHULTZ

Father’s home and doing well in school. Further, the trial court found at the time of

its ruling: “The minor children are doing well in their [F]ather’s care. They are both

doing well in school and are happy in the home of their [F]ather and step-mother.”

¶ 43 The trial court also made unchallenged Findings about the harm Mother’s

actions have caused the children. It specifically found the children are “angry” with

Mother and “no longer want[] to have contact with her” because of her own actions.

The trial court also recounted Mother’s actions in taking the children to

Massachusetts, which the children viewed as Mother having “essentially kidnapped

them.” Further, the trial court found the Massachusetts incident “was a very

traumatic experience for both boys” that “is having a lasting impact upon them

emotionally.” Mother also “does not demonstrate an appreciation for the trauma she

caused” by that incident nor the negative impacts taking the children to

Massachusetts had on them: “She disrupted their education in that she took them

without warning, did not enroll them in school and cut off their contact with their

[F]ather and stepmother as well as their friends. (This lasted for approximately two

(2) weeks.).” Lastly, as to Mother, the trial court made an unchallenged Finding that

it is “very likely” that Mother “suffers from mental or emotional issues of unknown

etiology.”

¶ 44 Finally, in addition to its Findings about the benefits of staying with Father

and the harm Mother had caused, the trial court considered Mother’s evidence that MALONE-PASS V. SCHULTZ

Father was harming her and the children. Mother introduced via the children’s

therapist accusations that Father had “heavily coached” the children in order to

“alienate[]” them from Mother as part of his “fixat[ion] about making accusations

against” Mother. While the trial court extensively reviewed that evidence, the trial

court found the therapist had no “valid basis” to make the statements he did because

he made “assumptions he was not in a position to make.” The trial court also

considered Mother’s previous allegations that Father had committed domestic

violence against her and the children, but again it rejected those allegations.

¶ 45 Given the unchallenged Findings of Fact, it is clear the trial court had

substantial support for its ultimate Findings of Fact, the Conclusions of Law, and its

determination that it was in the best interest of the children for Father to have sole

legal and physical custody of the children. We conclude the trial court did not abuse

its discretion, and Mother’s exceptions suggesting otherwise are unfounded.

3. Findings and Conclusions on Visitation with Mother

¶ 46 Mother’s final arguments center on the trial court’s Findings, Conclusions, and

order that it is not in the best interest of the children for Mother to have visitation.

In addition to the exceptions she lists, Mother argues the trial court erred in denying

her all visitation because: (1) there were no findings of physical or sexual abuse or

severe neglect as she alleges are required and (2) the May 2019 order still granted

Mother full weekend and summer visitation, even though it came after many relevant MALONE-PASS V. SCHULTZ

events. We address the general argument via the exceptions first before turning to

Mother’s specific arguments about the lack of abuse or neglect and the visitation

provisions of the May 2019 order.

¶ 47 Visitation, like custody, employs the best interests of the child test, and that

test can lead to denying a parent all visitation:

Our courts have long recognized that sometimes, a custody order denying a parent all visitation or contact with a child may be in the child’s best interest: “Although courts seldom deny visitation rights to a noncustodial parent, a trial court may do so if it is in the best interests of the child: ‘The welfare of a child is always to be treated as the paramount consideration. Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child’s welfare.’ This principle is codified in N.C. Gen. Stat. § 50– 13.5(i), which provides that: ‘In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.’”

Huml v. Huml, 264 N.C. App. 376, 399–400, 826 S.E.2d 532, 548 (2019) (quoting

Respess, 232 N.C. App. at 615–16, 754 S.E.2d at 696) (alterations from original,

citations, and quotations omitted). MALONE-PASS V. SCHULTZ

¶ 48 Here, the trial court made extensive, detailed Findings as to Mother’s actions

and the effect those actions had on her children. As part of gathering evidence to

make these Findings, the trial court appointed a GAL for the children to provide

additional information. The GAL spoke with Mother, Father, and both children and

then prepared a report.

¶ 49 Many of these Findings focused on the fallout from the incident when Mother

took the children to Massachusetts, which we have already discussed above. The trial

court’s findings also went beyond that incident. First, the trial court recounted how

it allowed Mother to take the children to lunch shortly after the Massachusetts

incident only to have the lunch dominated by Mother asking the children about what

they had told the court in chambers, in violation of a court order, which “added further

toxicity to the relationship” between Mother and the children. The trial court also

recounted how when the children were in therapy, Mother “dominated the sessions

and they obtained little if any benefit.” Finally, the trial court documented how the

children did not want to see Mother as the case was being tried, which was in part

due to one of the children being forced to spend his sixteenth birthday in court. This

culminated in a situation where the children no longer want to see Mother at all

because of how she acts during visits. The stress she causes is so extreme that one of

her children suffered a reoccurrence of a stress-related physical ailment that subsided

once visitation stopped and he was having less stress. MALONE-PASS V. SCHULTZ

¶ 50 As the children were ages 14 and 16 by the time the trial court’s order came

out, they were old enough for the trial court to give their wishes to no longer see

Mother considerable weight. See Falls v. Falls, 52 N.C. App. 203, 209–10, 278 S.E.2d

546, 551 (1981) (“[T]he wishes of a child of sufficient age to exercise discretion in

choosing a custodian is entitled to considerable weight when the contest is between

the parents, but is not controlling.” (quoting Hinkle v. Hinkle, 266 N.C. 189, 197, 146

S.E.2d 73, 79 (1966))); see also Clark v. Clark, 294 N.C. 554, 555, 576–77, 243 S.E.2d

129, 130, 142 (1978) (reversing and remanding case in part because the children were

all older than eleven at the time of remand and thus it was “appropriate and desirable

for the judge to ascertain and consider their wishes in respect to their custody”). The

trial court took the children’s wishes into account when it ordered that no visitation

schedule be set.

¶ 51 Mother acknowledges that the children’s wishes should be taken into account,

relying on Clark. However, she argues the children’s wishes “should not be the sole

determining factor.” That is an accurate statement of law. See Falls, 52 N.C. App.

at 209–10, 278 S.E.2d at 551 (recounting how wishes of children are not controlling).

But it is not an accurate statement of the trial court’s actions here. As discussed

above, the trial court made extensive Findings about the negative impacts Mother

had on the children, including the harm visitation was causing them. While those

negative impacts may have underlay the children’s wishes to no longer have MALONE-PASS V. SCHULTZ

visitation with Mother, they are also separate facts supporting the trial court’s order

denying Mother visitation. As such, the trial court did not make its decision solely

based on the children’s wishes.

¶ 52 Adding extra weight to the Findings, the trial court made them all by “clear,

cogent and convincing evidence,” higher than the required preponderance standard.

(Emphasis omitted); Walsh, 263 N.C. at 590 n.3, 824 S.E.2d at 134–35 n.3 (citing

Speagle v. Seitz, 354 N.C. 525, 533, 557 S.E.2d 83, 88 (2001) (“[T]he applicable

standard of proof in child custody cases is by a preponderance, or greater weight, of

the evidence.” (alteration in original))). Further, all these Findings are unchallenged;

Mother only challenges the ultimate Finding, Conclusion of Law, and order denying

her visitation. Mother further recognized the weighty evidence in support of the trial

court’s Findings. Her brief includes many of the same Findings we discussed above

in stating “there are evidentiary findings adverse to [Mother].”

¶ 53 Despite the significant unchallenged Findings on which the trial court relied

in determining it was in the best interest of the children to not have visitation with

Mother, she still argues the evidence was insufficient for two reasons. First, Mother

argues the trial court erred in denying all visitation because there was not “any

finding of physical or sexual abuse or severe neglect of the children.” Contrary to that

argument, which Mother makes without citation to authority, the trial court does not

have to find a parent has physically or sexually abused the children or “severely MALONE-PASS V. SCHULTZ

neglected” them before ceasing visitation. Under North Carolina General Statute §

50-13.5(i):

In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.

As we have already discussed, the trial court made extensive Findings of Fact

regarding its reasons for the custody order and the denial of visitation, including both

a Finding of Mother’s unfitness and a Finding that visitation rights are not in the

best interest of the children. Section 50-13.5(i) requires specific findings to support

the denial of visitation and the best interests of the children but does not require

findings of physical or sexual abuse or severe neglect. The trial court correctly

applied the best interest of the child standard, and the extensive unchallenged

Findings of Fact support its determination. See Huml, 264 N.C. App. at 399–400, 826

S.E.2d at 548 (noting courts use the best interest of the child standard on questions

about visitation). While Mother cites cases in which all visitation was denied because

of sexual or physical abuse, that argument misses the point. While sexual or physical

abuse could support the denial of visitation in the appropriate case, such abuse is not

necessary to make that decision.

¶ 54 Mother also argues the trial court erred in denying her any visitation because MALONE-PASS V. SCHULTZ

its May 2019 orders, which came after the Massachusetts incident and court inquiry

into it, “nevertheless granted [Mother] full weekend visitation . . . and summer

visitation.” This argument fails both in theory and on the evidence before us. First,

Mother’s argument would upend a basic tenet of family law, that courts have the

power to make changes to even permanent orders in response to a substantial change

in circumstances. E.g. Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681

(1974); see also In re Marlowe, 268 N.C. 197, 199, 150 S.E.2d 204, 206 (1966)

(“Changed conditions will always justify inquiry by the courts in the interest and

welfare of the children, and decrees may be entered as often as the facts justify.”

(emphasis added)). We therefore reject Mother’s argument that a past grant of

visitation on a temporary custody order bars the court from denying visitation in the

future.

¶ 55 Beyond the legal issues, Mother’s argument does not align with the trial court’s

actions and the evidence it had available to it. While Mother says the May 2019 order

granted her visitation, she fails to include the part of the order stating, “The minor

children will not be forced to visit with [Mother] if they choose not [to] do so

and they must inform . . . [Mother] of their desire not to visit with [Mother].”

(Bold and italics in original.) Thus, the trial court’s May 2019 order envisioned the

possibility of Mother having no visitation because the children would not be forced to

visit. Further, in changing the order to not set any visitation, the trial court relied MALONE-PASS V. SCHULTZ

on additional, unchallenged Findings from the period after May 2019, such as the

additional information from the GAL, which further detailed the children’s feelings,

the fact that the children did not want to see Mother during trial, and the decrease

in stress and resulting health improvement one of the children had after visitation

stopped. Given these additional facts as well as the court’s authority to change even

permanent orders in certain circumstances, Mother’s argument about the May 2019

order’s visitation provision does not convince us.

¶ 56 The trial court’s unchallenged Findings of Fact provide ample support for its

ultimate Finding, Conclusion of Law, and order that it is in the children’s best

interests for Mother to not have visitation. As a result, the trial court did not abuse

its discretion. The trial court in this case went above and beyond the call of duty in

documenting each of many in-chambers conferences and in explaining its rulings as

to each and every request Mother made. The trial court also accommodated Mother’s

pro se filings and her failures to appear on several occasions. The trial court took its

role of protecting the best interests of the children very seriously, and this is evident

in the orders. We find no issue with its analysis.

IV. Conclusion

¶ 57 After de novo review, we find the trial court had subject matter jurisdiction

under the UCCJEA and that no unjustifiable conduct under North Carolina General

Statute § 50A-208(a) otherwise interferes with the jurisdiction, especially given that MALONE-PASS V. SCHULTZ

section’s exceptions. We do not address Mother’s challenges to the Findings of Fact

and Conclusions of Law that she did not act consistently with her constitutionally

protected status as a parent and that Father was a fit and proper person to have

custody because those are not relevant in a custody dispute between two parents,

except as to the visitation issue. Finally, we find the uncontested Findings support

the ultimate Findings, Conclusions, and the order provisions granting Father sole

legal and physical custody and denying Mother visitation based on the best interest

of the children, so the trial court did not abuse its discretion on those matters.

Therefore, we affirm the trial court’s order.

AFFIRMED.

Judges HAMPSON and GRIFFIN concur.