Custody Modification Without a Pending Motion

Turner v. Oakley, 2022-NCCOA-266.

Facts: The parties to the case had one child together and never married. In 2013, Plaintiff filed a complaint for custody of the child. He was granted secondary custody, with Defendant having primary custody. In 2018, Plaintiff filed an emergency custody ex parte motion, and alleged that there had been a substantial change in circumstances that affected the child’s welfare since the entry of the 2013 order. The trial court granted the emergency custody motion and, at the end of the hearing on emergency custody, granted Plaintiff primary physical and legal custody. Defendant was granted supervised visitation. Defendant moved for a visitation schedule in 2019. Orders were entered that addressed a visitation schedule. Then, in 2019, Defendant responded to Plaintiff’s custody motion filed in 2018. In 2020, the trial court entered orders modifying the 2013 child custody order, granting primary custody to Defendant. Plaintiff appealed.

Issue: Did the trial court err when it entered a modification order without subject matter jurisdiction?

Holding: No.

Rationale: Plaintiff argued that the trial court lacked jurisdiction to enter an order modifying the 2013 custody order because his 2018 motion was no longer pending, having been resolved by the orders entered by the court addressing both the emergency ex parte motion and visitation. However, none of those intermittent orders resolved permanent custody. The initial emergency custody order specified that Plaintiff’s primary custody was temporary. The subsequent orders addressing visitation also similarly specified that it was temporary in nature. Therefore, the allegation of changed circumstances in Plaintiff’s 2018 motion was not yet resolved and actually was pending. The Court went further in dicta and stated that the absence of a motion to modify does not remove the court’s jurisdiction to act under the statute for custody modification. The motion provides notice and alerts the court of new facts that could alter the best interests of the child. Conduct can do the same. At these hearings that stemmed from Plaintiff’s 2018 motion, new facts were provided to the trial court: in the motion itself, in Defendant’s response, in testimony of the parties. That was enough to provide the ongoing jurisdiction.

Lessons: It was a somewhat odd argument to mount in the first place, considering that Plaintiff’s 2018 motion contained language that is wholly indicative of modification: that there had been a substantial change in circumstances affecting the child’s welfare since the entry of the 2013 order. The parties then went on seemingly to litigate those issues about the substantial change and the impact they had on the minor child. While subject matter jurisdiction can be challenged at any stage, it seemed clear that Plaintiff intended to modify custody. Additionally, the emergency order was, on its face, temporary; no other order was entered that directly addressed the facts required for modification. If those orders did contain such language and indicated the court was resolving the issue for modification, then perhaps the Court of Appeals would have held otherwise.