*1 IN THE COURT WALKER
WILLIAMS [185 App. (2007)] assignment Cartwright’s (2006). Ed. Wetherefore overrule L. 2d this issue. error on of error remaining assignments argue do not their
Defendants pursuant App. to N.C.R. therefore deem them abandoned and we 28(b)(6).
No error. STEPHENSand SMITHconcur. Judges v. MICHAEL LAWRENCE Defendant, Plaintiff KENDRA TROY WILLIAMS, WALKER, Intervenors and LARRY WALKER and MARIE WALKER, B. No. COA06-781 (Filed August 2007) Custody, Support, 1. and Visitation— Child —motion standing—paternal grandparents to intervene — in a cus- discretion The trial court did abuse its paternal grandparents’ N.C.G.S. tody granting case intervenor plaintiff contends 1A-1, though mother 60(b) Rule motion even § plaintiff assign error they (1) failed standing, lacked because: intervene, and the granting the motion to trial court’s plaintiff motion; (2) an objection by contains no record judgment from standing to seek relief intervening party has 60(b). Rule under preservation of issues —failure Appeal and Error—
argue court erred in a plaintiff contends the trial
Although mother paternal grand- by concluding intervenor case untimely, 1A-1, 60(b) motion was parents’ Rule N.C.G.S. 10(b)(1) N.C. R. P. error is dismissed under assignment of plaintiff indication that contains no because: record before the trial of intervenors’ motion argued the timeliness opposition written contend in her court; did not 60(b) Rule judgment that the to a motion for relief ruling finding or made no untimely, and the trial court respect to the issue of timeliness. THE IN COURT OF APPEALS
WILLIAMS v. WALKER *2 Support, Custody, 3. custody— Child and Visitation— jurisdiction —PKPA-UCCJEA custody by
The trial court erred in a child finding case and concluding in jurisdic- a 6 October 2005 order that it was without July' order, tion enter its because: although the Appeals Court could not original determine whether the consistently Illinois order was made with the Parental Kidnap- ping (PKPA), relinquished juris- Prevention Act the Illinois court July diction in its 14 2003 order to the North court, Carolina and properly Carolina court assumed exclusive involving parties’ child; minor (2) an unchallenged finding of fact stated the minor child has resided plaintiff July with in North Carolina since 12 and thus con- with 1738A(f)(l), sistent 28 U.S.C. North Carolina was the minor home child’s state under both PKPA and the Uniform Child Custody Jurisdiction and (UCCJEA); Enforcement Act although the subsequently Illinois court hearing during held a guardianship, which learned intervenors’ the Illinois court’s attempt recapture jurisdiction was ineffectual when it had already relinquished jurisdiction July on 14 2003.
Judge dissenting. WYNN Appeal plaintiff from order entered 6 October Judge Phyllis M. Gorham in New County Hanover District Court. Heard in Appeals the Court of 6 March 2007. Webb,Jr., plaintiff-appellant.
Fred D. for filed, defendant-appellee. No brief for filed, intervenors-appellees. No brief for JACKSON,Judge. appeal
This arises out of competing orders entered in respect Illinois and North M.L.W., Carolina with the minor child of Troy Kendra (“plaintiff”) Williams and Michael Lawrence Walker (“defendant”). following For reasons, part we affirm part reverse in the trial court’s 6 October 2005 order. (“the
M.L.W. minor child”) Wilmington, was born in September on 9 time, plaintiff At was in high school and provide adequate determined that she was unable to care Larry for the minor child. (“the and Maria Walker Walkers”), the THE IN COURT
WILLIAMS v. WALKER Illinois, offered paternal grandparents and residents minor child’s placed the 1992,plaintiff and around December to care April 1993, Circuit Court child with the Walkers. On 7 minor granting an order County, (“the court”) Illinois entered Cook The the Walkers. of the minor child to guardianship they pri- minor child’s alleged have have been the Walkers they appointed guardians as and that mary caretakers since were when until 12 child continued reside them minor plaintiff re- in North Carolina and the minor child visited minor alleged Plaintiff has .the fused to return him the Walkers. April Walkers lived with 1993 until when the her to North him for a visit and refused return him took to Illinois alleged minor also has that while the Carolina. Plaintiff *3 him, custody, regular with she maintained contact Walkers’ purchased him, him cards on and other items for and sent clothes special occasions.
- July 2001, a with alleged Plaintiff has that on 24 she served to defendant, who, according in parentage motion for filed Illinois plaintiff, spent despite little time with the minor acknowl- Thereafter, plaintiff, (1) hearing was paternity. according to a edging September 2001; granted (2) in on 7 she was visitation held Illinois September child; (3) she the minor child in with the minor visited 2001, notwithstanding not to visit in October but was allowed visitations; 2001, she (4) on 2 November ordering the Illinois court’s present were at the in Illinois and the Walkers went mediation partial mediation; (5) agreement reached a and she and defendant the mediation. plaintiff New filed suit in the District Court of
On October court”), County, (“the North Carolina North Carolina Hanover jurisdiction and assume requesting that the North Carolina court complaint, alleged modify custody order. In her the Illinois and Illinois no home state is North Carolina that that the minor child’s con- any except that defendant longer has connection the matter May 2003, held On the Illinois court tinues to reside in Illinois.1 By by defendant. hearing for visitation violation filed on motion July 2003, (1) granted defendant leave filed 14 the Illinois court order Carolina; (2) in and pending his case North transfer motion July 2003, the North from its calendar. On removed the matter however, complaint, alleges is a resident also Defendant 1. The “[t]he military Rico,” in the that defendant “is and the North Carolina court found Puerto currently in Rico.” stationed Puerto IN THE COURT OF APPEALS WALKER
WILLIAMS v. granted plaintiffs Carolina court (1) motion and entered an order asserting as to visitation the minor child as a result yielding Carolina; of Illinois’ North (2) granting plaintiff custody child; (3) expressly of minor retain- entry ing for the of further orders. February 2004,
Thereafter, on 26 the Illinois court entered an temporary custody granting order defendant sole of the minor child. order, In its the court “that found stated that there are no [defendant] any pending other and that matter in 22 April 2004, Carolina had been closed.” On the Illinois court entered an finding order that the legal Walkers—the minor child’s guardians parties made to the North Carolina —were presumed action. The Illinois that North Carolina had not been prior guardianship made aware of the granting order Walkers. The Illinois court ordered defendant to securing assist in copy the court file in the North plaintiff; Carolina action filed continued case 25 June 2004. July 2004, On 21 (“intervenors”) the Walkers filed a motion to action, they intervene the North alleging Carolina court “were appointed the legal guardians of the minor child in the April 7, 1993.”Intervenors also filed a motion relief from the assuming jurisdiction. Carolina court’s 15 By August order filed 20 the North Carolina granted intervene. On 6 October the North Carolina court *4 concluding entered an order that (1) the State of Illinois had neither yielded jurisdiction waived nor to Carolina; the State of North (2) North Carolina had no granted case. The court stayed July intervenors’ motion for relief the 15 2003order assert- ing granting custody plaintiff. timely to Plaintiff filed appeal. notice of
[1] Plaintiff first contends the North Carolina court erred in granting 60(b) intervenors’ Rule motion because intervenors lacked standing bring to disagree. motion. We appeal,
“On this Court’s review of the trial 60(b) court’s Rule rul- ing determining limited ‘is to whether trial court abused its dis- ” Sutton, App. cretion.’ Barton v. 706, 709, N.C. 264, 568 S.E.2d (2002) (quoting Improved Moss v. & Benevolent Practice Order Elks, App. 172, 176, N.C. 532 S.E.2d 829 (2000)). “Abuse of of discretion is shown only when manifestly the court’s decision ‘is unsupported by arbitrary reason so or is could not have been APPEALS
IN
OF
THE COURT
v.
WILLIAMS WALKER
App.
N.C.
”
(quot-
at
the result App. 502 S.E.2d McDonald, v. 130 N.C. ing State (1998)). had intervenors no case,
In contends that the instant Custody and Jurisdiction Enforce- right the Uniform Child under motion; rather, grandparents bring 60(b) a Rule “the ment Act to Statutes, only under Carolina General could seek visitation [North showing in the cause and a 50-13.5Q) filing a motion section] essentially changed argues Plaintiff that intervenors circumstances.” pursue standing thus lacked to their standing lacked to intervene and Plaintiff, error to the however, assigned has not 60(b) Rule motion. intervene, and the record granting the motion to trial court’s order by plaintiff Therefore, to the trial objection no the motion. contains appeal. binding the motion intervene granting court’s order 10(a) (2006). R. P. See N.C. party as the ac- intervention, an intervenor is much a
“After
equally
.
parties
rights
as broad.
. .
original
are and has
tion as
pur-
party,
party
should be a
all
intervenor becomes a
he
Once an
Warner,
Corp.,
poses."
E.
Motor
N.C.
Leonard
Inc. Nissan
plain
The
lan-
73, 78-79,
(emphasis added).
4-5 (1984)
311 S.E.2d
may
.
party
a
. .
60(b) provides
Rule
that “the court
relieve
guage of
1A-1,
judgment.”
60(b)
final
Gen. Stat.
Rule
from a
added).
intervening party
standing
An
thus
seek
(emphasis
See,
Barton,
e.g.,
judgment pursuant
60(b).
to Rule
relief from
Therefore,
intervenors
the inátant
App. 706,
[2] In her second assignment of error, plaintiff contends that inter untimely. However, plaintiff has failed 60(b) Rule venors’ preserve appellate review. this issue for pro- Rules of Civil Procedure of the North Carolina 60(b) Rule party judgment or order may vides that relieve newly neglect; (2) mistake, surprise, or excusable because: timely discovered could not have been discovered evidence that misconduct; fraud, misrepresentation, or other diligence; (3) due *5 void; judgment or order judgment (5) or order is (4) the party 60(b) in Barton filed its Rule case, intervening 2. Much as in the instant Barton, intervene. See prior ruling 152 N.C. on its motion to the trial court’s motion App. at 568 S.E.2d IN THE OF COURT APPEALS WILLIAMS WALKER App. N.C. discharged, been satisfied or upon or a or judgment which any is based has been vacated; equitable reversed or or other justification judgment relief or See N.C. Gen. order. Stat. 1A-1,Rule 60(b) (2005). 60(b) premised § Rule motions on subsec- (2), (1), tions year of 60(b) Rule must be made “not than more one judgment, order, after the proceeding or was or entered taken.” 1A-1, Stat. 60(b) (2005). Gen. Rule 60(b) requires Rule further upon any that a motion based of subsections be made within a reasonable time. See id. “What constitutes ‘reasonable time’ depends upon the circumstances the individual case.” Nickels v. Nickels, 277 S.E.2d rev. disc. denied, 303 N.C. (1981). S.E.2d 392 judice,
In the case sub the record contains no indication that plaintiff argued the timeliness of motion intervenors’ before the trial court. Plaintiff Opposition did not contend in her written to Motion for Relief from Judgment that the 60(b) Rule untimely, was and the trial finding respect court made no or ruling with to the issue Accordingly, of timeliness. preserved this issue has not been for our review. See N.C. P. 10(b)(1) R. (2006).
[3] Finally, plaintiff challenges the North Carolina court’s conclu sion—as well as findings supporting its conclusion—that it was jurisdiction without to enter its 15 Specifically, plain 2003 order. tiff assigns error the following findings of fact from the North Carolina court’s 6 October 2005 order:
6. That at the time Judge Smith heard this matter in North Carolina, there were still pending in the all of Judge rulings dependent Smith’s were on whether or going not Illinois to continue to maintain the minor child the of this action.
8. That there mentioning had been some in one of the Illinois previously Orders guardianship, however, the court in Illinois, having guardianship, after reviewed made deter- they mination at that time that retained case in the State of Illinois.
10. This Court finds that North Carolina has not had case, over this in that the Court the State of Illinois determined they never lost .... *6 399 THE
IN COURT v. WALKER WILLIAMS App. (2007)] N.C. 393 [185 the court made fol- upon findings, Based these the North Carolina “The law, plaintiff assigns to error: lowing which conclusion yielded jurisdiction waived to the State has neither nor of Illinois jurisdiction to of North Carolina has no and the State proceed with this matter.” requirement for a
“Subject jurisdiction, a threshold matter controversy it, adjudicate brought before is conferred to hear and by or by Constitution upon the courts either the North Carolina 572, 8, App. 574, N.C. 635 S.E.2d 10 M.B., statute.” In re 179 omitted). North Carolina’s (internal quotation marks and citations custody by the is both fed- governed over child Kidnapping (“PKPA”)3 Act and the Uniform eral Parental Prevention Custody Act as (“UCCJEA”) and Enforcement Child Jurisdiction 690, 692-94, Brode, App. N.C. enacted in North Carolina. See In re 151 858, (2002). 566 S.E.2d 860-61 jurisdictional statute, jurisdictional the
The UCCJEA is requirements for a to have of the UCCJEA must be met custody disputes. power adjudicate The PKPAis a federal to governing over child actions and statute also uniformity application the bring to UCCJEA designed among the states. App. 409, 411, 383, (2003).
Foley Foley, v. 576 S.E.2d custody proceedings af- applicable PKPA is all interstate “[T]he state,” Kooten, In re Van fecting prior award a different dismissed, 764, 160, appeal App. 769, (1997), 487 S.E.2d 126N.C. the extent a state cus- (1998), 347 N.C. S.E.2d “[t]o argue in her brief. Failure to fails to address the PKPA Wenote Supreme Pennsylvania: Court PKPAhas been addressed parties jurisdictional prerequisites Distressingly, the' of the while both address party predecessor at 5344and neither Sections UCCJA UCCJEA] [the controlling PKPA, disturbing this is a omission because statute addresses the authority regarding modify Pennsylvania whether Texas inability matter, Ordinarily, failure result our address decree. would However, specifically as be waived. while Father does it would deemed PKPA, questioned should have at all whether trial court address the he times jurisdiction. way, general whether raised the issue of the trial declined In that he Moreover, subject since this to hear the Petition. court had matter jurisdiction modify implicates a Texas matter issue the courts’ sponte, determination, as can the matter sua it can this Court raise visitation not be waived. of N.M.B., (Pa. (internal Adoption 2000) n.1 citation In A.2d re omitted). IN THE COURT OF APPEALS
WILLIAMS WALKER
tody
PKPA,
statute conflicts with
federal statute controls.”
Brode,
151 N.C.
Pursuant State shall enforce ... and shall not modify any custody . . . or determination visitation determination *7 by a made ... 1738A(a). of another State.” U.S.C. The Act § provides jurisdiction further aof court of a State which has “[t]he custody a long made child or visitation determination... continues as any as . . . State the such remains residence the child ofor contes- tant.” 1738A(d). Supreme § 28 U.S.C. As the United States Court has noted, jurisdiction consistently a pro- State exercises with the “[o]nce may [PKPA], juris- visions of the other no State exercise concurrent custody dispute, diction the empow- even if it would have been jurisdiction instance, ered to take in the first and all States must custody accord full faith ensuing and credit the first State’s Thompson Thompson, decree.” L. v. 484 U.S. 98 Ed. 2d (internal (1988) 518-19 citation omitted). judice, inquiry respect
In the case sub the threshold with to sub- ject jurisdiction matter is whether the North Carolina court’s 15 2003 order constitutes a modification of order made consist- ently provisions with the of the PKPA.See 1738A(a). § 28 U.S.C. A child or provi- visitation determination is consistent the only (1) sions of the PKPA if: making the determination has jurisdiction under state; (2) following the laws of its and one of conditions is satisfied:
(A) (i) such State the home of the is child on the date of the proceeding, (ii) commencement of the or had been the child’s home State within months six before the date of the commence- proceeding ment of the and the is child absent from such State of his because removal or retention or contestant for other reasons, and a State; contestant continues live in such appears (B) it (i) that no other State would have subparagraph (ii) under and is in (A), it the best interest of the child that court of such State (I) assume because parents, contestant, the child and his or the and child at least one significant have a connection with such State than other mere physical presence State, (II) in such and there is available in such concerning present State substantial evidence the child’s or care, protection, personal training, relationships; future physically present (C) (i) is in such State and the child necessary has or abandoned, (ii) emergency been it is in an IN THE COURT
WILLIAMS WALKER parent of child, sibling, or protect child because the subjected or with mistreatment been threatened child has abuse; or appears would have that no other State
(D) (i) State has (A), (C), (E), or or another subparagraph (B), under that the State ground on the to exercise declined appropriate forum to jurisdiction is in more whose issue it is in the (ii) or of the determine the visitation jurisdiction; or such court assume best interest jurisdiction pursuant continuing to subsection (E) the court has (d) of this section. permits met, the PKPA If conditions are 1738A(c).
28 U.S.C.
these
only
modify
original Illinois
if:
the North Carolina court
jurisdiction make
a child
“has
such
Carolina
jurisdiction, or it has
determination”;
longer
“no
If
jurisdiction.”
1738A(f).
*8
§
28 U.S.C.
declined to exercise such
satisfied, however,
are
1738A(c)
forth in section
not
conditions set
PKPA,governs modification of the Illinois
UCCJEA, and not the
the
concerning
in
custody
the record
order. Given the dearth
evidence
April
custody order, we cannot
for
7
1993
the
court’s basis
its
Illinois
consistently
made
original
order was
whether the
determine
relinquished
However, it
clear that the Illinois court
with the PKPA.
is
July
court and
jurisdiction
order
the North Carolina
in its 14
2003
to
jurisdiction
properly
assumed exclusive
that the North Carolina
parties’
child.
custody
involving
the
minor
over
may modify a child cus-
First,
PKPA,a state court
pursuant to the
jurisdiction to make
state “has
such
tody
(1) modifying
if:
the
order
original
longer
no
custody determination”;
the
“[s]tate
jurisdiction.”
to
28
jurisdiction, or has
exercise such
has
it
declined
court,
explained
one North Carolina federal
1738A(f).As
§
U.S.C.
state court
be made whether the second
must
determination
“[a]
(North
jurisdiction
decide cus-
Carolina) itself
matter
an initial
jurisdiction to make
tody
If the
state lacks
matters.
second
authority mod-
custody determination, it is axiomatic that
lacks
Meade,
Supp.
F.
650
prior
another state.” Meade v.
ify the
decree of
Here,
aff’d,
(4th
1987).
Cir.
205,
(M.D.N.C.1986),
812 F.2d
custody
jurisdiction
to make such child
court had
Carolina
North.
grant-
1738A(f)(l). In the order
required
as
section
determination
relief,
which is
finding
of fact number
ing intervenors’
appeal,
that the minor
binding
on
states
challenged and thus
IN THE COURT OF APPEALS
WILLIAMS v. WALKER
child has resided
July
with
North Carolina since 12
Thus,
parent
period
the minor
resided
for a
of more
immediately
than
preceding
six months
the commencement of the
custody proceeding,
such,
instant
and as
prop-
North Carolina is
erly
pursuant
the minor child’s home state
PKPA
both the
and the
as
UCCJEA codified in North
See 28
§
Carolina.
U.S.C. 1738A(b)(4);
50A-102(7)
Stat.
(2005). Therefore,
§
Gen.
North Carolina had
jurisdiction
custody
to make such a
determination. See 28 U.S.C.
1738A(c)(2)(A)(ii);
(2005);
§
N.C. Gen.
50A-201(a)(l)
Stat.
see
also
Meade,
Supp.
(“Thus
F.
presence
juris-
of ‘home state’
authority
diction under North
law
Carolina
confers
on the state court
custody
to make a
case.”).
determination
this
“However,
the existence of
in North Carolina to make
an initial
award does not
enable
North Carolina court to
modify
prior
requirements
decree
unless
of Section
[Illinois’]
1738A(f)(2) are
. . . .” Meade,
Supp.
satisfied
650 F.
at 209 (internal
quotation
By
marks and citation omitted).
order entered 14
“granted
the Illinois court
leave to
transfer
case to
[defendant]
pending
case in the State of North Carolina” and removed the mat-
such,
ter
jurisdic-
from its calendar.
relinquished
As
Illinois court
tion
Krier,
instant
matter.4 Krier v.
676 So. 2d
Cf.
(Ala.
App. 1996) (holding
Civ.
that the Alabama court had
modify
pursuant
Kansas
order
to sec-
1738A(f)
tion
“because
Kansas court had
declined
exercise
jurisdiction in favor
allowing
the Alabama
decide the
Therefore,
issues”).
when
North Carolina court entered its cus-
tody
July 2003,
acquired jurisdiction
North Carolina
Thompson,
exclusion
Illinois.
L.
See
Next, by UCCJEA, one the means which a may modify custody North Carolina court determination of another state is if the North Carolina court finds that the court the other 4. We note that the transferred defendant’s visitation violation to such, argued only juris- North As Carolina. it could be that Illinois declined exercise respect 1738A(h)(“A diction with to a visitation See 28 § determination. U.S.C. court of may modify a visitation determination made another State jurisdiction modify unless . . . the court the other State has declined to exercise determination."). However, expressly granted such the Illinois court leave to transfer case, complaint requesting case into Carolina which involved that the the custody. Accordingly, North Carolina court requirements over visitation and assume 1738A(f)(2) satisfied, 1738A(h) inapplicable. of section are and section 403
IN THE COURT v. WALKER WILLIAMS App. 393 exclusive, continuing jurisdiction. longer it no state determines N.R.M., 165 N.C. (2005); Stat. see also In re N.C. Gen. 50A-203 § See noted, As Court has (2004). 598 S.E.2d 151 this “ juris- of whether original decree State is the sole determinant ‘the modify a party seeking A determination diction continues. it stating that no original obtain an order from the decree State must ” jurisdiction.’ N.R.M., 165 N.C. 598 S.E.2d at longer has cmt.). (quoting N.C. Gen. Stat. 50A-202 Arkansas, original N.R.M., In this Court determined that result, state, jurisdiction and as a had not declined decree jurisdiction. id. Specifically, lacked matter See Carolina stating in is no Arkansas the record Court noted that “there clearly jurisdiction” longer has and that Arkansas indi- Arkansas no jurisdiction. N.R.M., id. declining it was not See Unlike how- cated order filed ever, the record in the instant case contains an July relinquishing Illinois court on exclusive supra, the Illinois court of the minor child. As discussed visitation violation granted defendant leave transfer his only but also cus- to North which involved not visitation tody. The “This is taken off call.” Illinois court thus ordered: matter subsequently hearing during held a which Although the Illinois court attempt court’s guardianship, learned of intervenors’ the Illinois recapture jurisdiction was After the Illinois court relin- ineffectual. pos- July 2003, the North Carolina court quished on matter, and in its exclusive, jurisdiction over the continuous sessed juris- July order, expressly North Carolina court retained entry of further orders in this matter. diction for the correctly deter- sum, In we that the North Carolina court hold grant custody July possessed 2003 that it mined plaintiff. Accordingly, the North we reverse of the minor child to stayed its order, which October 2005 Carolina court’s 2003 order. argued in her brief of error not remaining assignments
Plaintiff’s App. 28(b)(6) (2006). R. P. See N.C. are deemed abandoned. part; part.
Affirmed and Reversed Judge STEELMANconcurs. separate opinion.
Judge in a WYNNdissents *10 404 IN THE COURT OF APPEALS
WILLIAMS v. WALKER N.C. WYNN,Judge, dissenting.
Although power inquire into, “a court has inherent and deter mine, it whether and to dismiss an action ex mero subject motu lacking[,]” N.R.M., when matter is In re 294, (citation N.C. omitted), 598 S.E.2d this inher power only clearly ent should be exercised the record shows “[w]hen lacking. matter . .” (quoting is . Id. Co., Lemmerman v. Oil Williams S.E.2d (1986)). appeal supports Because the record on trial the court’s con jurisdiction Illinois, clusion that the State of not North had custody matter, over this I would the affirm trial court’s order. matter,
In this a high child bom to school mother in 1992. biological mother, The for child, unable to care the consented to in the living paternal grandparents. Illinois with his Moreover, appears biological mother to an consented guardianship grandparents.5 order of July 2002, grandparents In allowed the minor visit biological Carolina; however, mother in returning North instead of Illinois, biological complaint the child to mother filed a in October County, Carolina, seeking in New Hanover an assumption jurisdiction by Carolina. Thereafter, putative father, apparently who had little involve- ment with the stating: obtained an Illinois order coming THIS MATTER to be heard for status and Michael Walker’s Motion Violation; for Visitation present Michael Walker failing appear[.] Kendra Williams duly being premises The court advised in the IT IS HEREBY ORDERED
1) Representative discharged Child Ruth R. Watson is instanter. 2) Michael Walker is granted leave transfer case into the pending case in the State of North Carolina.
3) matter is taken off call.
(Emphasis added). Rogers, 397, 402-03, (1994) (pro- See Petersen 445 S.E.2d viding parent may longer enjoy paramount that a no or status if his her conduct presumption responsibilities inconsistent with this or if he or she fails to shoulder rearing child). that are attendant *11 405 IN THE COURT WILLIAMS WALKER (2007)] 393 [185 upon by puta- sole of the Acting this order obtained the actions W. father, Judge District John Smith of tive on 15 Court County, Carolina, juris- asserting New Hanover an order issued custody The made the over this matter. order no reference to diction Guardianship Order, parties were made grandparents Illinois nor the to the North Carolina action. thereafter, apparently the Illinois discovered that
Sometime by putative issued Illinois at the behest of the father the earlier order the As guardianship. issued without advisement of order of was result, putative the the Illinois Court ordered the father obtain 18-9). file.(Rpp. North Carolina court the
Subsequently, grandparents the filed a motion to intervene in Carolina, pending granted action in North and their motion was on Judge proceedings concerning 2004. Smith August continued the grandparents’ assuming motion for relief from completion proceedings of the in Illinois. until Phyllis' Thereafter, Judge District M. Gorham New Court County, North an order on 6 October Hanover issued finding: minor, appointed That were Guardians for 3. the Interveners subject April 7, 1993, an in child the of this action on in Order County, Illinois File No.: P and that Order of Cook Guardianship aside; subsequently, set was has never been there custody action in Illinois for of the an filed the Defendant 79852; County, no. minor in Cook Illinois file 01 D child was; placed by the and minor with the Interveners Plaintiff minor Defendant in December of 1992 when the old, the minor child approximately three months and contin- April 7, per ued to reside the Interveners Guardianship County file no. P 1023until on Order in Cook July 12, when minor child came to visit the or about Carolina; in that the Plaintiff has never Plaintiff/Mother North minor child to the State of Illinois. returned the County July 16, 2003, Court, the That Hanover on New Smith, W. an Order in this action assert- Honorable John entered of the minor child the ing as visitation action, granting the Plaintiff/Mother upon yielding Illinois’s of the minor child 79852; file D no. 01 to the State of Carolina IN THE COURT OF APPEALS WALKER WILLIAMS v. subsequent July 16, Order, particularly, more on February 26, 2004, Illinois, the State of file, the same case 01 D entered an Order and through the Honorable Allan W. whereby Masters Defendant, Walker, Sr., Michael was granted temporary custody the sole of the child, parties minor and all appear were ordered hearing April at a 22, 2004; that the Honorable Allan W. subsequent Masters entered April Order on 22, 2004, finding Interveners, as fact that the legal guardians of parties the minor were *12 never made to the action in County Cook file no. 01 D presumed and that the Court that North Carolina was never made aware of the still valid Order Guardianship granted of the Interveners in and continued 25, 2004; the case to June ing 25, 2004, that on June a status call hear- was set at which time the County action in Cook file no. 01 D 79852 was August 27, 2004; continued to that the Interveners filed this Motion to Intervene and Motion for Relief Judgment/Order July from 21, 2004; that there have been sev- eral settings and hearings in the action in file no. 01 D August 27, 79852since 2004;that the Honorable John W.Smith granted the Interveners Motion to Intervene on or August about assumption based on the that at the time the North Carolina action was filed that the Interveners retained a valid GUARDIANSHIP in the State Illinois,, (sic) of but Interveners’ Motion for Relief from Assuming “Order Jurisdiction” was CONTINUED completion until pro- of the ceedings Illinois, in previously yielded jurisdiction which had this Court.
5. That this Court has action, reviewed the file in this all of the orders in files, Illinois case Guardianship Order from the state Illinois, of the Orders Judge entered John W.Smith here in North Carolina.
6. That at the time that Judge Smith heard this matter in North Carolina, there were still pending matters in the State of Illinois and all Judge rulings dependent Smith’s were on whether or not going Illinois was to continue to maintain the minor child the of this action.
7. That at the Judge time that Smith entered the Order on 2003 granting Plaintiff, Williams, custody Ms. of the minor May there had been an order of 2003 from the State of transferring jurisdiction Illinois of the case to Carolina; North APPEALS THE COURT OF
IN v. WALKER WILLIAMS Order, hearing in subsequent had also been a court to that there brought attention of the which had been the State [paternal] ... guardianship there was a that Illinois Court that action, Larry in this Walker grandparents, and Interveners Walker, Maria had since 1993. in one of the Illinois mentioning That had been some
8. there however, the previously guardianship, Orders made Illinois, having guardianship, the deter- after reviewed they jurisdiction of that retained the case mination at that time the State of Illinois. time, . . . That while the minor child was resid-
9. since that in the hearings in the there have been ing State of hearings have been continuous State of North Carolina and there regarding the of the child. in the State of Illinois had This finds that Carolina has not Court case, in the of Illinois determined over this in that Court they were because there never lost they transferring the order which were aware that finds Illinois; therefore the Court to North Carolina stayed. must be Assuming Order Jurisdiction *13 (Emphasis original). appeal supports hand, the on trial court’s
In the case at record support fact, findings in turn of fact the conclu findings of only Furthermore, assigns error to biological mother of law. sion Therefore, remaining six, ten. findings eight, numbers fact appeal. v. binding See State unchallenged findings of fact are on denied, 917, cert. Eason, (1994), 336 N.C. S.E.2d trial court’s (providing 2d 661 that the 130 L. Ed. U.S. supported competent appeal if findings of fact “are conclusive on (citation omitted)); evidence, conflicting.” even if the evidence Howell, S.E.2d are findings light correct of law are (“Conclusions order should appeal.”) Accordingly, the trial court binding also affirmed. be