--- Am. Tribal Law ----, 2021 WL 5239024 (Eastern Cherokee Ct.)
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Cherokee Court of the Eastern Band of Cherokee Indians.
Tierra RATTLER, Plaintiff,
v.
Warren CROWE, Jr., Defendant.
CASE NO.: CV 19-205
|
FILED September 21, 2021

ORDER
MONTY C. BECK, Chief Judge

 

SUMMARY OF FACTS
Plaintiff and Defendant (“the parties”) are the parents of three minor children, J.C. (born August 6, 2013), K.C. (born August 27, 2014), and C.C. (born January 31, 2016). On March 4, 2020, the Honorable Randle L. Jones entered an Order for custody of the minor children, which Order was entered with the consent of the parties (“the Order”).

On May 27, 2021, Plaintiff’s counsel filed a Notice of Hearing scheduling a hearing on “the Complaint for Custody.” A question has arisen whether the Order is temporary or permanent. Arguments on this issue were heard on August 23, 2021, and the Court took the matter under advisement.

 

DISCUSSION
Two issues require resolution in this matter. The first issue is whether the Court is restricted by the Order in what evidence it may consider in future hearings. The second issue is whether the Order is a temporary order or a permanent order. If it is temporary order, the Court will hear the matter and determine custody based on the best interest of the children. If it is a permanent order, a showing of a substantial change of circumstances affecting the children must be shown for the Court to modify the Order.

CC § 50-13 provides: “Except as set forth in this chapter or another provision of the Cherokee Code, the parties .... seeking .... child custody .... shall have all rights provided by the laws of North Carolina. The court shall look to the laws of North Carolina for guidance in resolving any family matter not specifically governed by the Cherokee Code or established Cherokee customs and traditions.”

Except with respect to domestic violence protective orders,1 the Cherokee Code (“Code”) nor Cherokee customs and traditions provide any guidance for defining temporary or permanent child custody orders. Therefore, the Court must look for guidance to the laws of North Carolina.

The Court will first address the limitations included in the Order regarding the evidence the Court can consider in future hearings. The Order includes the following provision: “That after December 2020, either party may bring this matter into court without a showing of a substantial change of circumstances affecting the welfare of the minor children, but must show a positive change benefitting the minor children.”

Frankly, the Court is unable to discern the intent of this provision. First, as discussed below, the Order left nothing to be decided if a party “brought the matter into court.” Second, by its terms, the Order attempts to limit the Court in what evidence it may consider if a party were to bring the matter before the Court. If the Order is temporary, neither party would be required to show a substantial change of circumstances for the Court to modify it. Rather, the fitness of the parties and best interest of the children would be the only consideration (which, as discussed below, the Court has already considered according to the terms of the Order). If the Order is permanent, the Court could not modify it unless a party showed a substantial change of circumstance affecting the welfare of the children. Furthermore, the Court cannot limit the type of effect (positive or negative) that a party must show to prevail on a substantial change of circumstances, as it attempted to do in the Order. These constraints involve questions of law. “Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.” In re A.K.D., 227 N.C. App 58, 60, 745 S.E.2d 7 (2013). In Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978), the North Carolina Supreme Court considered the effect of the following provision in a consent order: “This cause is retained for further orders and particularly for entry of special order further specifying the visiting privileges of the defendant, Patricia Proffitt Clark, which said special order only may be entered without showing of change of condition but any such special order shall be entered only after appropriate notice.” Id. at 554, 243 S.E.2d 129. Because this provision was included in a consent order by stipulation of the parties, the Court of Appeals held that Plaintiff was estopped from arguing that a permanent custody order could be modified only by showing a substantial change of circumstances. See, Clark v. Clark, 23 N.C. App. 589, 209 S.E.2d 545 (1974). The Supreme Court disagreed and reversed the Court of Appeals holding:
An agreement by the parties that the court may change visitation privileges in a custody order without any showing of changed conditions does not relieve the court of its duty to determine whether changed circumstances affecting the welfare of the child justify a modification. It is clear that “the modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child, and the party moving for such modification assumes the burden of showing such change of circumstances.
Clark, 294 N.C. 554, 575, 243 S.E.2d 129. See also, Hibshman v. Hibshman, 212 N.C. App 113, 710 S.E.2d 438 (2011) in which the Court of Appeals held the following provision did not relieve the trial court of making sufficient findings of a substantial change of circumstances affecting the welfare of the minor children to support modification: “Defendant’s primary custody of the children during the school year is conditioned on Defendant maintaining a home in the Granite Quarry Elementary School district, while the children are still in elementary school. If she does not, this court may receive additional evidence and this order may be modified without a showing of a substantial change in circumstances.” Id. at 116, 710 S.E.2d 438.2

The second issue is whether the Order is a temporary order or a permanent order. Whether a custody order is temporary or permanent is a question of law. Graham v. Jones, 270 N.C. App. 674, 678, 842 S.E.2d 153 (2020). N.C. Gen. Stat. § 50-13.5(d) recognizes temporary orders but does not define them. The courts have mentioned several factors that are important in determining whether a custody order is temporary or permanent.
“Generally, a child custody order is temporary if ... ‘(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 [is] reasonably brief[,] or (3) the order does not determine all the issues.’ ” Kanellos v. Kanellos, 251 N.C. App. 149, 153 [795 S.E.2d 225] (2016) (quoting Senner v. Senner, 161 N.C. App. 78, 81 [587 S.E.2d 675] (2003)). If the order “does not meet any of these criteria, it is permanent.” Peters v. Pennington, 210 N.C. App. 1, 14 [707 S.E.2d 724] (2011) (citation omitted). “Further, it is the satisfaction of these criteria, or lack thereof, and not any designation by a district court of an order as temporary or permanent which controls.” Kanellos, 251 N.C. App. at 153 [795 S.E.2d 225] (citations omitted).
Graham v. Jones, 270 N.C. App. 674, 678, 842 S.E.2d 153 (2020).

“Even though this statement clearly uses the disjunctive, it appears that a finding of any one factor does not require the conclusion that the order is temporary. Rather, while one of these features may support a conclusion that the order is temporary, other indicators that the order is permanent may lead to a different conclusion.” 3 Reynolds on North Carolina Family Law § 8.32(c).

The first factor is whether the Order was entered without prejudice. An order is entered without prejudice “if it is entered without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.” Marsh v. Marsh, 259 N.C. App. 567, 816 S.E.2d 529 (2018). Graham, 270 N.C. App. at 678, 842 S.E.2d 153 (2020). Nothing in the Order states it is entered without prejudice.

The second factor is whether the Order included a reconvening date. The Order includes the following: “That after December 2020, either party may bring this matter into court without a showing of a substantial change of circumstances affecting the welfare of the minor children, but must show a positive change benefitting the minor children.” [Emphasis added]. Plaintiff argues the order is temporary because “after December 2020” is a clear and specific reconvening date.

Notwithstanding the invalidity of these limitations, under the second factor, the Court must determine if this provision constitutes a clear and specific reconvening time and the time interval between the two hearings is reasonably brief. If the Order does not include a clear and specific reconvening time, it is unnecessary (impossible) to determine if the interval between entry of the order and review is reasonable.

The Order states that “after December 2020, either party may bring this matter into court....” [emphasis added]. In cases in which the North Carolina appellate courts have considered this factor, the orders did not require the Court or either party to take any additional action for the matter to be reviewed by the trial court. It set a specific date or period during which the matter would be reviewed by the Court. See e.g., Brewer v. Brewer, 139 N.C. App. 222, 533 S.E.2d 541 (2000) (the order provided the court “would review the order in the summer of 2000”); In re N. T.S., 209 N.C. App. 731, 707 S.E.2d 651 (2011) (the Court would review the order “at its first term of Juvenile [C]ourt for Columbus County at which abuse and neglect and dependency cases are heard occurring after the expiration of 120 days from the date that this Order is filed.”); File v. File, 195 N.C. App. 562, 673 S.E.2d 405 (2009) (order was entered December 28, 2007 and, in the order, the trial court scheduled the case for review in May of 2008); and, Anderson v. Lackey, 163 N.C. App. 246, 593 S.E.2d 87 (2004) (“This matter shall be reviewed by the Court in the May 17, 1999 through June 11, 1999 calendar....”).

The Order before this Court requires a party to take further action to bring the matter before the Court for further review. While not binding authority, and the Court does not rely upon the holding, the Court finds instructive the reasoning in the unpublished opinion of Linker v. Linker, 257 N.C. App. 952, 809 S.E.2d 374 (2018). The custody order in Linker included this provision: “This Order shall be temporary. Either party, or the Court, may place this Order on the calendar for review after 6 months.” After the matter was noticed for hearing by Plaintiff, the trial court (the judge presiding was the same judge who entered the prior order) concluded the order was a permanent order in spite of it being labeled a temporary order because (a) it was not entered without prejudice, (b) it did not set a specific reconvening date and (c) it left no other issues of custody undetermined. Because neither party had filed a Motion to Modify, the trial concluded it lacked jurisdiction to proceed with a hearing. Plaintiff appealed. In an unpublished opinion, the North Carolina Court of Appeals affirmed the trial court noting the order did not specify a specific reconvening time (contrasting the provision in Brewer). In Gary v. Bright, 231 N.C. App. 207, 750 S.E.2d 912 (2013), the Court reversed the trial court’s conclusion that the order was temporary and could be modified without a showing of changed circumstances. The Court held the following provision failed to state a clear and specific reconvening date: “ ‘That nighttime visitation will not resume without a motion and filing with the Court, including full performance of all requirements of the of the Plaintiff from the previous orders (including parenting classes and financial matters.”

Under the third factor, the Court must determine whether the order does not determine all the issues. The parties had already participated in mediation and were unable to reach agreement.3 When the matter was called for trial, the parties signed, and the Court entered, a consent order. The Order awarded joint legal custody of the children to the parties; awarded primary physical placement of the minor children to the Defendant; included a comprehensive placement schedule that included the school year, summer placement and holidays; and included additional provisions governing the care of the children and communication between the parties about such care. Furthermore, the Order provides in the conclusions of law that: “The Court finds that it is in the best interests of the minor children to establish a permanent custody and placement plan at this time.” [Emphasis added].4 The Order included all the necessary jurisdictional findings and conclusions of law for a permanent custody order. The Order left nothing else to be decided.

 

CONCLUSIONS OF LAW
1. The constraints and limitations in decretal paragraph 5 of the Order are invalid and will be disregarded by the Court in any future proceedings.
2. The Order was not entered without prejudice.
3. The Order did not set a clear and specific reconvening time.
4. The Order left nothing else to be decided.
5. The custody order entered on March 4, 2020 is a permanent custody order.
6. The Court does not have jurisdiction over any pending motions or issues.

 

ORDER
Based on the foregoing analysis, review of the file and arguments presented, IT IS HEREBY ORDERED:
1. The Notice of Hearing filed by the Plaintiff is hereby stricken.
2. As nothing is pending before the Court for hearing, the matter shall not be further calendared unless motions are filed in the future.

All Citations
--- Am. Tribal Law ----, 2021 WL 5239024

Footnotes
1	See, CC § 50B-9.
2	“Waiver is ‘an intentional relinquishment or abandonment of a known right or privilege.’ Almost any right may be waived, so long as the waiver is not illegal or contrary to public policy.” [citations omitted]. A careful analysis of the language of N.C. Gen. Stat. § 50-13.7, coupled with statements made in numerous cases interpreting its provisions, inevitably leads us to the conclusion that (1) the requirement set out in N.C. Gen. Stat. § 50-13.7 to the effect that a child custody order may only be modified upon a proper showing, is not a personal right possessed by a litigant, but is instead a legislatively mandated limitation on the authority of the courts to modify prior custody orders and that, (2) if the necessity to show a substantial change of circumstances were to be treated as an individual right possessed by a parent rather than as a rule intended to protect the affected child, such an interpretation would be completely inconsistent with the clear emphasis of the Supreme Court and this Court upon the purposes served by the “changed circumstances” requirement. As a result, we conclude that Defendant did not have the ability to “waive” the requirement that the trial court find a substantial change in circumstance before modifying a prior custody order, so that the trial court erred by failing to address the “changed circumstances” issue at the time that it awarded Plaintiff custody of the parties’ children”. Hibsham at 124-125, 710 S.E.2d 438.
3	An Order for Mediation was entered on September 18, 2019 by Judge Jones. Mediation was held on September 26, 2019 and the mediator reported an impasse.
4	Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13 (2013) (“A trial court’s designation of an order as ‘temporary’ or ‘permanent’ is neither dispositive nor binding on an appellate court.”) However, the Court considers the inclusion of the label, in conjunction with other factors, helpful in determining the nature of the order.