Link to opinion attached in Appendix, Tabakova v. Teodorescu, No. COA09-424: https://appellate.nccourts.org/opinions/?c=2&pdf=5455
==================================================
No. 17-813
*******************************
HUNTER F. GRODNER, )
(now
Summerlin) )
Plaintiff-Appellee )
) FROM
PITT COUNTY
v. ) No. 13 CVD 398
)
ANDRZEJ
GRODNER )
(now
Andrew Grodner) )
Defendant-Appellant )
*******************************
DEFENDANT-APPELLANT'S BRIEF
*******************************
(filed electronically 27 October 2017)
INDEX
TABLE OF
CASES AND AUTHORITIES............................. iii
ORGANIZATION
OF DOCUMENTS IN CONSOLIDATED
CASES......................................................................... xx
QUESTIONS
PRESENTED................................................... xx
STATEMENT
OF THE CASE............................................... xx
STATEMENT
OF THE GROUNDS FOR
APPELLATE REVIEW............................................... xx
STATEMENT OF THE FACTS............................................. xx
STANDARD
OF REVIEW.................................................... xx
ARGUMENT:........................................................................ xx
I. THE TRIAL COURT LACKED JURISDICTION TO
TAKE APPELLANT'S PASSPORTS IN A CHILD CUSTODY ORDER IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS TO TRAVEL AND TO DUE PROCESS AND THE TRIAL COURT LACKED
JURISDICTION TO RESTRICT THE MINOR CHILD’S PASSPORT AS WELL...................... xx
A...... The Order violated Appellant's
right to travel. ................................................................. xx
B....... Passports (for adults and minors)
are a sovereign federal issue and the trial court has no authority in this area.
.................................................. xx
C....... Taking Appellant's passport
exceeded legislative authority. ................................................. xx
D...... Notice/due process were violated by
taking Appellant's passport. ................................ xx
E....... Opposing counsel and trial court
on case law on jurisdiction re: passport. ........................... xx
II. THE DISTRICT COURT ERRED IN RULING THAT IT
HAD NO JURISDICTION TO RETURN THE PASSPORTS. .................................................... xx
III. THE COMBINED EFFECT OF THE TWO DISTRICT
COURT ORDERS CONSOLIDATED FOR APPEAL DEMONSTRATES AN EXTRA-JURISDICTIONAL
VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHT TO TRAVEL AND DUE PROCESS. ........................................................ xx
CONCLUSION...................................................................... xx
CERTIFICATE
THAT BRIEF IS WITHIN WORD LIMIT... xx
CERTIFICATE
OF SERVICE................................................ xx
APPENDIX
........................................................................... xx
TABLE
OF CASES AND AUTHORITIES
Cases cited:
Ansell v. Ansell, 759 S.E.2d 916, 917-919 (Ga. App. 2014) 10, 11
Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965)..................................................................................... 12
Aylor v. Barnes, 242 N.C. 223, 87 S.E.2d 269 (1955)........... 12
Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975) 12
Everette v. Taylor, 77 N.C. App. 442, 444, 335 S.E.2d 212, 214
(1985).........................................................................
13
Faulkenbury v. Teachers' & State
Employees' Ret. Sys. of N. Carolina, 108 N.C.App. 357, 364, 424 S.E.2d 420, 422 (1993).........................................................................
26
In re Peoples, 250 S.E.2d 890, 296 N.C. 109 (1978)............ 12
Kent v. Dulles, 357 U.S. 116 (1958)....................................... 9
Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986)................................... 8,
11, 24, 30
Matter of Wharton, 290 S.E.2d 688, 693, 305 N.C. 565 (1982) 17
McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592
(2010)...............................................................
8, 24, 29
Oltmanns v. Oltmanns, 773 S.E.2d 347 (Ct. App. 2015)....... 22
Stanback v. Stanback, 215 S.E.2d 30, 287 N.C. 448 (1975). 15
Tabakova v. Teodorescu, No. COA09-424 (N.C. Ct. App. Feb. 16, 2010)
(unpublished and attached in Appendix)........ 5,
21
Rules
and Statutes Cited
22
C.F.R. § 51.7(a)................................................................. 10
22
C.F.R. § 51.7(b)................................................................ 10
N.C.
Gen. Stat. § 50-13.2................................................... 3,
13
N.C.
Gen. Stat. § 50-13.2(a)................................................... 13
N.C.
Gen. Stat. § 50-13.2(c)................................................... 15
N.C.
Gen. Stat. § 1-294 (2015).......................................... 3,
26
Other
C.J.S.
Courts § 28 .................................................................. 12
Strong's
North Carolina Index 3rd Courts § 2.1 (1976).......... 12
ORGANIZATION
OF DOCUMENTS IN CONSOLIDATED CASES
All references first indicate documents in
COA17-570 and then in COA17-813.
Case COA17-570 (as case A):
(RA pXX-YY #Z line WW-UU)
reference to Record on Appeal in COA17-570 on
pages from XX to YY, paragraph Z, lines from WW to UU
(AA pXX-YY #Z line WW-UU)
reference to Addendum (A) in COA17-570 on pages
from XX to YY, paragraph Z, lines from WW to UU
(TA pXX-YY line WW-UU)
reference to Transcript in COA17-570 on pages
from XX to YY, lines from WW to UU
Case COA17-813 (as case B):
(RB pXX-YY #Z line WW-UU)
reference to Record on Appeal in COA17-813 on
pages from XX to YY, paragraph Z, lines from WW to UU
(AB pXX-YY #Z line WW-UU)
reference to Addendum (B) in COA17-813 on pages
from XX to YY, paragraph Z, lines from WW to UU
(TB pXX-YY line WW-UU)
reference to Transcript in COA17-813 on pages
from XX to YY, lines from WW to UU
No. 17-570 DISTRICT
3A
No.
17-813
*******************************
HUNTER
F. GRODNER, )
(now Summerlin) )
Plaintiff-Appellee )
) FROM
Pitt COUNTY
v. ) No. 13 CVD 398
)
ANDRZEJ GRODNER )
(now Andrew Grodner) )
Defendant-Appellant )
*******************************
DEFENDANT-APPELLANT'S
BRIEF
*******************************
QUESTIONS
PRESENTED
I. THE
TRIAL COURT LACKED JURISDICTION TO TAKE APPELLANT'S PASSPORTS IN A CHILD
CUSTODY ORDER IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO TRAVEL AND TO DUE
PROCESS AND THE TRIAL COURT LACKED JURISDICTION TO RESTRICT THE MINOR CHILD’S
PASSPORT EITHER.
II. THE
DISTRICT COURT ERRED IN RULING THAT IT HAD NO JURISDICTION TO RETURN THE
PASSPORTS.
III. THE
COMBINED EFFECT OF THE TWO DISTRICT COURT ORDERS CONSOLIDATED FOR APPEAL
DEMONSTRATES AN EXTRA-JURISDICTIONAL VIOLATION OF APPELLANT’S CONSTITUTIONAL
RIGHT TO TRAVEL AND DUE PROCESS.
STATEMENT OF THE CASE
As a result of a child custody action
initiated on 25 February 2013 by Plaintiff-Appellee mother against Defendant-Appellant
father, on 22 September 2014 the Defendant-Appellant's U.S. and Polish Passports
were confiscated without any notice that it may happen. (RA pp71 line 11-14, AB
pp24 line 11-14). Later, on 14 December 2016 the same District Court judge who
took the passports ruled that he had jurisdiction to take them (RA pp 272 #30,
AB pp189 #30); later still, on 19 April 2017, the same judge ruled that he
lacked jurisdiction to return them (AA p17, RB pp163). The combined result of
the latter two Orders, which have been consolidated for appeal, is that Defendant-Appellant
cannot travel outside the United States, even by himself, as a result of a
child custody hearing. Pitt County Honorable Judge Galen Braddy issued all the
rulings.
STATEMENT OF THE GROUNDS FOR
APPELLATE REVIEW
Appellate review is based on N.C. Gen. Stat. § 7A-27(b)(2)
and § 50-13.2 in case COA17-570 related to 12 January 2017 Order (Denial of
Reconsideration and Relief), and based on N.C. Gen. Stat. § 7A-27(b)(3)(a) and §
1-294 in case COA17-813 related to 5 June 2017 Order to Stay Motions.
STATEMENT OF FACTS
A
child custody case was initiated by the (now) ex-wife of Defendant-Appellant on
25 February 2013. (RA p2-9, RB p2-9). A final hearing occurred on 25-26 August
2014 and Pitt County District Court Judge Braddy took the matter under
advisement. At this point in the proceeding, no one had asked to confiscate
Defendant-Appellant's passports. It never came up before or during the hearing. Note also that Defendant-Appellant is a United States
citizen but was born in Poland. (RA p50, RB p52).
Several
weeks after the custody hearing concluded, on 22 September 2014 Honorable Judge
Braddy convened a conference wherein he announced his custody ruling which
included the surrender of the minor child's passport AND Defendant-Appellant's
passports (both his U.S. and his Polish passports). (RA p71 line 11-14, AB pp24
line 11-14). Note, the custody Order prohibits Defendant-Appellant from
international travel – even by himself. (RA pp 41 #8, RB pp 41 #8).
Defendant-Appellant filed an amended
post-trial motion pursuant to Rule 60 of
the NC Rule of Civil Procedure wherein he alleged that the District Court
lacked jurisdiction to take his passports. (RA p54-56, AB p7-9).
Defendant-Appellant's motion was heard on 14 December 2016 by Judge Braddy, the
same judge who issued the custody Order. (RA p43, RB p43).
At the hearing on jurisdiction (14
December 2016), opposing counsel, Jeffrey L. Miller, literally held up some
papers in his hand while eluding to "one case on appeal with a gentleman
from, um, Romania" (TA p54 line 6-7, AB p147 line 4-5) and declared that the
Court of Appeals opinion upheld an Order which "restricted the travel and
the use of passports" of the father in that case. Jeffrey L. Miller
specifically stated that he was the attorney of record in the North Carolina Court
of Appeals case he was holding up in his hand. Despite all that, Jeffrey L.
Miller had not named the case or shown it to the Defendant-Appellant. (TA
p52-62, AB p145-155).
Defendant-Appellant asked Judge Braddy
to request that Jeffrey L. Miller provide details of the case he mentioned as
his authority. (TA p61 line 13-16, AB p154 line 11-14). However, Judge Braddy
stated that he trusted that Jeffrey L. Miller was telling the truth because
Jeffrey L. Miller could get in trouble with the Bar for misleading the tribunal
if he was not telling the truth. (TA p61 line 23-25 and p62 line 1, AB p154
line 21-24). Judge Braddy went on to state that Defendant-Appellant would
prevail on appeal if Jeffrey L. Miller did not have the case law he purported
to have. (TA p62 line 11-12, AB p155 line 9-10). At the conclusion of the
discussion on the passport issue Judge Braddy orally ruled the he had legal
authority to take Defendant-Appellant's passports. (TA p60 line 10-21, AB p8-19).
In fact, there was, and is, no case
law anywhere from any jurisdiction where a child custody court took away a
parent's right to international travel ---- without the child. Jeffrey L.
Miller was counsel in Tabakova v.
Teodorescu, an unpublished opinion arising out of a custody case from Pitt
County - with a Romanian parent - where
the issue on appeal involved restrictions on international travel ---- with the
minor child. However, that case said nothing about a parent's right to travel
without the minor child. Tabakova v.
Teodorescu, No. COA09-424 (N.C. Ct. App. Feb. 16, 2010) (unpublished).
Also, at the same jurisdiction hearing
(14 December 2016), Jeffrey L. Miller stated that the custody Order had not "restrain(ed)
or (took [Defendant-Appellant's] passports) away in any way." (TA p54 line
16, AB p147 line 14) and that all he needs to do is "to make a(n)
application to the Court to get his passport." (TA p54 line 19-20, AB p147
line 17-18). In fact, the custody Order does state that Defendant-Appellant can
"make an application" for the return of his passports. (RA p41 #8, RB
p41 #8). As a result of Court's oral ruling and Jeffrey L. Miller's statement, on
22 December 2016 Defendant-Appellant filed an application with the District
Court for the return of his passports (8 days after the hearing on
jurisdiction). (RA p167, RB p103).
Subsequent to Defendant-Appellant's
Notice of Appeal (10 February 2017) from Order Denying Reconsideration and
Relief (filed on 12 January 2017 and resulting from 14 December 2016 "jurisdiction"
hearing), on 11 April 2017 Jeffrey L. Miller filed a Motion Suggesting Lack of
Subject Matter Jurisdiction Based on Pending Appeals (AA p1, RB p149). Jeffrey
L. Miller "SUGGESTED" that the District Court had been deprived of
jurisdiction to hear Defendant-Appellant's Application for the return of his
passport (22 December 2016) (RA p167, RB p103) when on 10 February 2017 Defendant-Appellant
appealed Order Denying Reconsideration and Relief which ruled the custody court
had jurisdiction to confiscate Defendant-Appellant's passports. (RA p275, AB
p192).
Defendant-Appellant's application for
the return of his passports and Jeffrey L. Miller's Motion (11 April 2017) were
not set for a hearing until 19 April 2017. Judge Braddy entered his Order
(which denied Defendant-Appellant's application for passport alleging lack of
jurisdiction to take his passports) on 5 June 2017. (AA p. 15, RB p. 161).
Since there was more than 30 days between entry of that Order (5 June 2017) and
the hearing date on application for the return of his passports (19 April 2017),
Defendant-Appellant filed Notice of Appeal to preserve his appellate rights (9
June 2017).
At the hearing on Application for
Passport (19 April 2017), Judge took Jeffrey L. Miller's "suggestion"
and ruled that he now lacked jurisdiction to return Defendant-Appellant's US
and Polish passports. (AA p39, line 3-6, TB p14 line 3-6). Judge Braddy
instructed Jeffrey L. Miller to draft the Order. (AA p39 line 15-16, TB p14
line 15-16).
In violation of the local rules of the
Court, Jeffrey L. Miller never shared
proposed Order with the Defendant-Appellant and he waited until 5 June 2017 to
serve Defendant-Appellant with filed Order to Stay Motions (AA p18, RB p164),
which was forty-seven (47) days after the hearing on Jeffrey L. Miller's Motion
Suggesting Lack of Subject Matter Jurisdiction. It is notable that the Order
to Stay Motions was signed by Judge Braddy on 23 May 2017. The full and
relevant history of obstructionist tactics by Jeffrey L. Miller are cataloged
in Motion to Make Additions to Record filed by Defendant-Appellant on 19
September 2017 with NC Court of Appeals, which was granted by this Court on 27
September 2017. (COA17-570 and COA 17-813).
At that point a custody court had
taken Defendant-Appellant's passports without any notice, subsequently ruled
that it had jurisdiction to do so and then ruled that it lacked jurisdiction to
return them. Whereupon Defendant-Appellant filed Notice of Appeal of that Order
to Stay Motions (AA p43, RB p189).
Because the combined effect of Judge
Braddy's Orders made it impossible for Defendant-Appellant, a U.S. Citizen, to
travel abroad even without his son, Defendant-Appellant moved to consolidate
the two cases on Appeal and this Court granted that request on 15 August 2017.
ARGUMENT
I. THE TRIAL COURT LACKED JURISDICTION TO TAKE APPELLANT'S
PASSPORTS IN A CHILD CUSTODY ORDER IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO
TRAVEL AND TO DUE PROCESS AND THE TRIAL COURT LACKED JURISDICTION TO RESTRICT
THE MINOR CHILD’S PASSPORT AS WELL.
Standard of Review
“Whether
a trial court has subject-matter jurisdiction is question of law, reviewed de novo
on appeal.” McKoy v. McKoy, 202 N.C.
App. 509, 511, 689 S.E.2d 590, 592 (2010).
Moreover, “[w]hen the record clearly shows that subject matter
jurisdiction is lacking, the Court will take notice and dismiss the action ex mero motu. Every court necessarily
has the inherent judicial power to inquire into, hear and determine questions
of its own jurisdiction, whether of law or fact, the decision of which is
necessary to determine the questions of its jurisdiction.” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83,
86 (1986)
A.
The Order violated Appellant’s right to travel.
… The right to travel is a part of the
“liberty” of which the citizen cannot be deprived without due process of law
under the Fifth Amendment. … Freedom of movement across frontiers in either
direction, and inside frontiers as well, was a part of our heritage. Travel
abroad, like travel within the country, may be necessary for a livelihood. It
may be as close to the heart of the individual as the choice of what he eats,
or wears, or reads. Freedom of movement is basic in our scheme of values. (cites omitted) … "Our nation,"
wrote Chafee, "has thrived on the principle that, outside areas of plainly
harmful conduct, every American is left to shape his own life as he thinks
best, do what he pleases, go where he pleases."
Kent v.
Dulles, 357 U.S. 116 (1958) (Supreme Court reversed U.S. Secretary of State
denial of issuance of passport due to Communist party ties for exceeding its authority.)
There is no dispute in this case that
the passport issue involves an appealable, constitutional right. Opposing counsel, Jeffrey L. Miller, said
so. “[T]he subject matter jurisdiction
issue, is an appealable, substantial right.” (AA p32
line 1-3, TB p7 line 1-3).
B.
Passports (for
adults and minors) are a sovereign federal issue and the trial court has no
authority in this area.
This is not disputed as opposing
counsel also stated that the subject matter jurisdiction was appealable due to
the issue of federal sovereignty with regard to the issuance and regulation of
passports. (AA p31-32, TB p6-7). A United States
passport is and "at all times remains [the] property of the United States
[government]." 22 C.F.R. § 51.7(a). Even if a passport is taken by law
enforcement in a criminal case (in cases of flight risk), it must be returned
to the U.S. Department of State. 22 C.F.R. § 51.7(b). The custody Order in this
case prohibits Appellant from any international travel whether or not the minor
child accompanies him, though the passport itself permits international travel
according to federal law. (RA p41 #8, RB p41 #8). See Ansell v. Ansell, 759 S.E.2d 916, 917-919 (Ga. App. 2014)
(Georgia Court of Appeals held that “the issuance
of a passport to a minor child is a matter governed by federal law” and
vacated a custody Order that imposed conditions that conflicted with the Code
of Federal Regulations.). The trial court Order also required Appellant to
surrender his Polish passport which is most likely beyond the jurisdiction of
both state and federal courts as it is a matter of Polish sovereignty.
The trial court encroached upon the
sovereignty of the United States government, by taking, and keeping
indefinitely, a U.S. passport which belongs to, and is exclusively regulated
by, the United States government.
The custody Order also contains
several other provisions related to the minor child’s passport (the mother has
sole authority, the father cannot even ask for a passport for the minor child,
etc.) that were not addressed by Defendant-Appellant in his jurisdictional
motions. (RA p41 #8, RB p41 #8). Since this Court always has the duty to
examine whether jurisdiction is present, Appellant is raising it now. Lemmerman v. A.T. Williams Oil Co., 318
N.C. 577, 580, 350 S.E.2d 83, 86 (1986).
Appellant had incorrectly assumed that
the trial court had vast authority concerning the minor child’s passport, but
in researching the issues relating to his own passport, he learned that there
are no published cases in North Carolina on a trial court’s jurisdiction over a
child's passport. However, the Georgia
appellate courts have addressed this issue and determined that ANY provision in
a custody Order concerning a child’s passport that invades the province of the
United States government is void. Ansell v. Ansell, 759 S.E.2d 916, 917-919
(Ga. App. 2014) The custody Order in our case gives joint custody to the parents
(RA p37, RB p37), whereas the Code of Federal
Regulation requires both parents to consent to a passport for the minor child
when the custody Order grants joint custody.
Id. Our custody Order also says the Appellant
may not possess [the Order says “have”] the minor child’s passport nor apply
for a passport. (RA p41 #8, RB p41 #8). The way
the Order is written, Appellant would be in contempt if he cooperated with the child’s mother in obtaining a passport
for the minor child, and if the minor child got a passport somehow, Appellant
couldn’t use it, because the Order forbids him he is
forbidden from possessing it. All
the other odious restrictions and conditions imposed upon the child’s passport
violate federal law and are just as void as the provisions relating to
Appellant’s passports. Absent a specific
grant of authority, all conditions and restrictions placed on both the Appellant’s
and minor child’s passports are beyond the trial court’s jurisdiction and void ab initio.
C. Taking Appellant’s passport exceeded
legislative authority.
The jurisdiction of a court or
administrative agency over the subject
matter of a proceeding is derived from the law which organized the
tribunal. Such jurisdiction, therefore, cannot be conferred upon a court by
consent, waiver or estoppel. Strong's North Carolina Index 3rd Courts §
2.1 (1976); C.J.S. Courts § 28; In re Peoples, 250 S.E.2d 890, 296 N.C.
109 (1978). "Where jurisdiction is
statutory and the Legislature requires the Court to exercise its jurisdiction
in a certain manner, to follow a certain procedure, or otherwise subjects the
Court to certain limitations, an act of
the Court beyond those limits is in excess of its jurisdiction." Eudy v. Eudy, 288 N.C. 71, 75, 215
S.E.2d 782, 785 (1975). When a statute confers power on a court or
administrative body to adjudicate cases involving the members of a certain
class, a court's attempt to exercise its
power over one who is not a member of that class is void for lack of
jurisdiction. See, e. g., Askew
v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Aylor v. Barnes, 242 N.C. 223, 87
S.E.2d 269 (1955). Moreover, a trial
court's general jurisdiction over the type of proceeding or over the parties
does not confer jurisdiction over the specific action. Everette v. Taylor, 77 N.C. App. 442, 444, 335 S.E.2d 212, 214
(1985)
The
authority of the District Court to adjudicate child custody cases and what it
may Order when doing so is set forth in N.C. Gen. Stat. § 50-13.2. First, it should be noted that section 50-13.2(a) says ALL child custody determinations are based upon the
best interests of the minor child. There is simply no logical, let alone
legal, reason to Order a parent to surrender his or her passport in a child
custody case as happened below. There is
no scenario where it would be in the child's best interests to prevent a parent
from traveling abroad - WITHOUT THE MINOR CHILD! No harm can possibly result to the child –
beyond the ever-present risk of losing a parent due to an accident.
Moreover, this Order gives exclusive
possession and authority of the minor child’s passport to the other parent, making Appellant’s passport irrelevant. (RA p41 #8,
RB p41 #8). Therefore, the international travel restrictions on Appellant
literally have no effect on the minor child, good or bad. For that reason alone, the trial court
lacks subject matter jurisdiction to restrict Appellant’s right to travel
abroad without the minor child. In
fact, the provisions in the Order which relate to Appellant’s passport actually
run counter to the child’s best interests.
For
example, while the Order gives the mother sole authority over the child’s
passport, the District Court retains sole authority over the Defendant-Appellant’s
passport and Appellant cannot possess the child’s
passport. (RA p41 #8, RB p41 #8) Therefore, even if Plaintiff-Appellee mother
wanted the minor child go to Poland (to attend his paternal grandfather’s
funeral) and handed the child’s passport to Defendant-Appellant, the Order
would not allow them to go! She would have to take the child to Poland herself because
the Order says the Appellant may not remove the child from the “continental United
States” without the “express written authority of this
Court,” and he cannot possess the child’s passport. (RA p41 #8, RB p41 #8). It
gets worse, much worse.
Incredibly, the custody Order’s gives the Plaintiff-Appellee mother the
sole power to allow the minor child to attend his grandfather’s funeral in
Poland, but it requires Defendant-Appellant to petition the Court to attend his
own father’s funeral even if he wants
to go alone! The Order says Defendant-Appellant
“shall surrender his passport(s) to the clerk” and he must “make
application to this Court in the event he has any travel plans that require a passport.” (RA p41 #8, RB p41 #8). It would be reasonable to
conclude that the Order was meant to require that Defendant-Appellant only
surrender his [child’s] passport and/or that he only needed to make application
to the District Court for international travel plans [which included the minor
child], but sadly subsequent actions demonstrate that the Order meant exactly
what it said.
When
Appellant asked for the Court to return his passport so he could travel abroad alone
(RA p167, RB p103), the same judge who signed the Order taking Appellant’s
passport, and ruled that he had jurisdiction to do so (RA p267, AB p184), stated
he had no jurisdiction to return it. (AA p17, RB p163). Hence, we are left with
the bizarre – and unconstitutional -- result that the minor child, who has
never been to Poland, can go to Poland, but Defendant-Appellant, who was born
there, cannot. It is
inconceivable that this is in the best interests of the minor child.
Moreover, the legislature has placed a specific restriction on the
District Court’s jurisdiction in custody cases when out of state travel of
the minor child is at issue. N.C. Gen. Stat. § 50-13.2(c) says, “[a]n order for
custody of a minor child may provide for such child to be taken outside of the
State, but if the order contemplates the return of the child to this State, the
judge may require [the person taking the child] out of this State to give bond
or other security conditioned upon the return of the child to this State in
accordance with the order of the court.”
The
statutory construction principle expressio unius est exclusio alterius
applies in this case. By specifically listing
“bond or other security” as the only method to ensure the return of the minor
child in N.C. Gen. Stat. § 50-13.2(c),
the legislature excluded all other methods. See Stanback v. Stanback,
215 S.E.2d 30, 287 N.C. 448 (1975) However, any discussion of bond as the sole
remedy is esoteric due to the statutory language immediately preceding the bond
remedy which says, “[when a custody order permits a party to remove a minor
child from this State and] if the order contemplates the return of the child to
this State….” This language evinces the
legislature’s intent to grant the authority to impose a bond only in
cases where the custody Order allowed the child to be taken out of the State. Since
our Order does not allow Appellant to take the child outside the United States, there can be no bond provision to bring him back from
where he is not allowed to go.
Taking
Appellant’s passport for travel without the minor child is equivalent to
requiring Appellant to post a bond to get out of jail where there has been no
arrest. It serves no purpose. A better analogy would be to order Appellant to
surrender his real estate to the Clerk of Court as a property bond just in case
he gets arrested one day. It is
difficult to conceive that the North Carolina legislature granted District
Court judges the jurisdiction to order bonds only to ensure the return of minor
children to this state, but that by omission they also granted custody
courts the authority to prohibit international travel by a parent without
the minor child!
Another
inexplicable provision in the custody Order is that it permits Appellant
to travel with the child anywhere within the United States (in North America)
without permission and without posting a
bond. (RA p41, RB p41). Ironically, the trial court had jurisdiction to impose
a travel bond for the interstate travel it did permit,
but chose not to. The only logical deduction
is that the facts did not warrant imposition of a travel bond for interstate
travel – which makes taking Appellant’s passport especially heinous. Appellant can take his child to every
U.S. state except Hawaii. It’s not in
North America. (RA p41, RB p41). However, Appellant
can’t go to the Canadian side of Niagara Falls by himself.
With
all due respect, the provisions in this Order relating to international travel
bear no rational relationship
to the authority granted to the District Court by the North Carolina
legislature to enter child custody Orders.
The court had just as much authority to order Appellant to not watch
certain movies or not to engage in certain religious practices even when the
minor child is not present. Such a far-reaching invasion into Appellant’s
private affairs is so far removed from the best interests of the minor child
that there can be no genuine debate. This was wrong. It should never have
happened, and a nationwide search indicates that it has never happened anywhere
else. This is no case like this one
anywhere.
The
case law in North Carolina is sparse about child custody Orders that exceed the
legislative grant of jurisdiction. See Matter of Wharton,
290 S.E.2d 688, 693, 305 N.C. 565 (1982) (Court was “unable to find
authority” to order DSS to open a foster home and Order was void.) Therefore it is legitimate to ask what the
jurisdictional limits are.
Appellant
suggests that the limit is so obvious that it usually goes without saying. Absent a specific grant legislative grant of
authority, a trial court has no jurisdiction to restrict a parent from
engaging in any lawful activity that falls within the
sole purview of the United States government. For if a child custody Order can dictate that
a parent to do -- or not do -- a lawful act outside the minor child’s
presence, there is no limit to what it can order
a parent to do. Having a child could result in losing your constitutional
rights in a custody Order where the standard of appellate review is abuse of
discretion. It would force a parent to
show that a court did not abuse its discretion in taking away his or her
constitutional rights, which would never pass constitutional muster. The way to avoid this conundrum is simply not
to go there. The District Court lacked
jurisdiction and all provisions in the Order without specific authority are void
ab initio.
D. Notice/due process were violated by taking
Appellant’s passport.
Appellant realizes that notice and due
process are not strictly jurisdictional issues, but they are part and parcel of
it and therefore merit discussion. The
problem with judicial acts that are not specifically authorized by statute or
rule is that there is also no established process
for such acts and no forewarning that it may happen. For example, there is a statute that says a
custody court can impose a bond in a specific situation. That is some notice. There is case law that says there must be
factual findings to support imposition of the bond. That is some procedure at least. Here there is none.
No hint was given to Appellant that
anyone was seeking passport confiscation, until the judge announced his
decision several weeks after the hearing. (RA p71 line 11-14, AB p24 line 11-14).
There was no allegation of wrongful conduct, like taking the child outside the
jurisdiction, or even attempting to do so.
There was no allegation of financial misconduct like avoidance of child
support or hiding marital assets off-shore.
There was no way to see this passport/travel
issue coming and Appellant literally had no chance to defend it as the
hearing was already over before it came up.
This is an astounding due process violation which is what happens when a
trial court engages in acts that are not legislatively prescribed.
E. Opposing counsel and trial court on case law
on jurisdiction re: passport.
Opposing counsel, Jeffrey L. Miller, informed
the trial court that he had personally handled a custody case, and the appeal, involving a parent from Romania wherein this Honorable Court
(of Appeals) purportedly upheld the trial court’s authority to take the
Appellant’s passport as it did in the case sub
judice. (TA p54 line 7, AB p147 line 5). However, Jeffrey L. Miller did not
provide the name of that case nor any citation.
Nor did he provide a copy of the Romanian
case to the trial court. Below is a quite remarkable portion from the transcript
of Appellant’s post-trial motion (alleging lack of jurisdiction to take his
passport) where Appellant asked for a citation to the Romanian case Jeffrey L. Miller had referenced and the trial court’s
response to Appellant’s request (TA p61-62, AB p154-155):
MR. GRODNER: No. Mr. Miller cited that there’s some law supported by
law, and I’d like to have it on the record what law and what statutes, what
cases on appeals, uh, you know, Court of Appeals Mr. Miller is citing as
---
THE COURT: Well ---
MR. GRODNER: --- the legal authority.
THE COURT: --- if he has, uh, if the case goes to appeal, he’ll have to
cite authority. He could just say he believes, I mean, as an officer of the court, as an attorney, he’s required to make
statements, uh, in good faith that there is currently a law. I mean, if he was
to misrepresent that law to the court, he could face, uh, Bar investigation and
actually a grievance with the Bar if there’s no law to support it. But as an
officer of the court, that’s all he’s required to do. He’s not required to show
you that case. He could just say, “There is law out there.” It’s done all the
time. If you watch trials of this Courthouse, you’ll see it done all the
time. You know, the only one he’s got to
provide law to at this point in time would be me, but I feel like the way he
cited that current, uh, state law, I believe it’s accurate.
MR. GRODNER: Uh, s-s-so there is no way for me
to even verify it, read it, get some (inaudible)?
THE COURT: You
could certainly do it if you appeal it. You can say that he had no law to base
that upon. (emphasis added)
Court cases are not poker games. Litigants are not required to “call” or
“raise the bet” to see what cards opposing counsel is holding. The trial court forced Appellant to do exactly
that. This wasn’t even trial by
ambush. In an ambush, once the attack
commences, you can at least try to defend yourself. Appellant couldn’t defend himself though
because the attack never came. The
“ambusher”, opposing counsel, claimed to have a secret weapon that would surely
destroy the Appellant, the “ambushee”. Then the trial court pronounced the “ambusher” to be the winner without forcing Jeffrey L.
Miller to ever draw his secret weapon. It
leaves one to wonder what would have happened if Appellant had employed the
“Corbomite Maneuver ” [1]. Left
with no choice, appellant did as the trial court instructed and filed Notice of
Appeal.
The danger of believing that someone
has a hidden weapon is that they might be bluffing. Turns out Jeffrey L. Miller’s mystery case
was really just his pointed finger in his coat pocket (imitating a hidden
pistol). While Jeffrey L. Miller did
handle a custody case involving a child’s
passport and a parent from Romania, the case had nothing to do
with the parent’s passport, much less
travel without the minor child! Tabakova v. Teodorescu, No. COA09-424 (N.C. Ct. App. Feb. 16, 2010)
(unpublished opinion attached in Appendix).
This is how Mr. Miller described his secret
weapon, the “Romanian” case: "Um,
but in any event, those limitations, uh, I-I know that I’ve had one case
on appeal with a gentleman from, um, Romania, um, a-a-and,
uh, another college professor involved in that case – I believe she
was from Bulgaria – in which Judge Blick entered an Order that restricted
the travel and the use of passports in that case. And it was appealed, the
Court of Appeals upheld the restriction, uh, placed on the
passports." (TA p54 line 5-12, AB p147 line 3-10).
If the trial court had asked Jeffrey
L. Miller to pull his hand out of his coat pocket, so to speak (and cite his
legal authority), the trial court would have seen that Jeffrey L. Miller was improperly referencing an unpublished case WHICH
DIDN’T HAVE ANYTHING TO DO WITH TAKING A PARENT’S PASSPORT
– nor any of the host of illegal passport restrictions and conditions present in this Order. Jeffrey L. Miller personally handled the Romanian case
both at the trial level and on appeal.
He knew that the issues on appeal in his case were whether the trial
court could restrict the father’s right to international travel when the minor child was with him and whether the imposition of a bond was proper in the event the father and son were to travel abroad. The trial court did not order the father to
turn in his passport in that case.
Jeffrey L. Miller did exactly what the
trial court said he would not do: Jeffrey
L. Miller misled the court and the trial court believed him. Moreover,
there are no reported child custody cases in North Carolina where the taking of
a passport, even a child’s passport, was upheld. Cf. Oltmanns v. Oltmanns,
773 S.E.2d 347 (Ct. App. 2015) (Travel restrictions on minor child upheld where
both parents had requested what trial court ordered in their pleadings.) Note,
that there was no reference in any pleading from either party about passports
or restrictions on travel in this case (RA p2-29, RB p2-29), nor was there any
mention of it at the custody hearing.
Opposing
counsel, Jeffrey L. Miller, did not make amends for misleading the trial court
though he had multiple opportunities to do so.
It is difficult to argue that he inadvertently
misstated the holding in the “Romanian
case” given that it was his own case and
it is a fairly recent decision concerning a very specific issue. This, together with his other statements and
subsequent actions lead to the inescapable conclusion that opposing counsel
intentionally violated his Duty of Candor under the Rules
of Ethics; the very same rules that led the trial court to blindly
accept Jeffrey L. Miller’s mystery case as the correct status of the law. The unethical behavior is exacerbated by the
fact that Appellant was unrepresented.
The Rules of Ethics place a higher standard on
a lawyer’s behavior when he is interacting with a layperson. Last, the unethical conduct resulted
in a violation of Appellant’s constitutional right to travel. It gets worse still.
II. THE
DISTRICT COURT ERRED IN RULING THAT IT HAD NO JURISDICTION
TO RETURN APPELLANT’S PASSPORTS.
Standard
of Review
“Whether a trial court has subject-matter jurisdiction is
question of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592
(2010). Moreover, “[w]hen the record
clearly shows that subject matter jurisdiction is lacking, the Court will take
notice and dismiss the action ex mero motu. Every court necessarily has the
inherent judicial power to inquire into, hear and determine questions of its
own jurisdiction, whether of law or fact, the decision of which is necessary to
determine the questions of its jurisdiction.” Lemmerman v. A.T. Williams Oil
Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986)
Argument
Appealing
the trial court’s ruling it had jurisdiction to take his passports in a child
custody proceeding (12 January 2017 Order) had no bearing on Appellant’s
application for the return of his passport.
Also, the trial court maintains jurisdiction to modify child custody Orders
until the child is no longer a minor.
This does not involve the appeal of a standard case for damages. Nor is it a typical interlocutory appeal
because the custody Order was final, at least as final as a modifiable custody Order
can ever be. Also, the first Order on
appeal in this case was for the post-trial motion
regarding jurisdiction to take Appellant’s passports. The cases which cite the general rule that
appeals, even interlocutory appeals involving a substantial right, work to
deprive the trial court of jurisdiction, do not apply. Moreover, opposing counsel and the trial
court have turned the general rule upside down.
The purpose of the rule for divestiture of trial
court jurisdiction during a proper appeal, is to prohibit the horse from
getting farther out of the barn while the Court of Appeals considers the merits
of the appeal. In other words, when a
proper appeal is pending, the rule is designed to prohibit further judicial
acts that may put the APPEALING PARTY
in a worse position by allowing the case to go on. In the case sub judice, the party who asked
the trial court to hear his application for the return of his passports is the
same party who appealed the Order stating that the trial court had jurisdiction to take
them. Opposing counsel, with the assent
of the trial court, improperly used a rule that is designed
to prevent further harm to Appellant to inflict more harm on him even further
by extending the duration of the violation of his constitutional right to
travel.
A
close reading of the statute upon which that general rule is premised, shows
that it does not to apply in this situation.
The General Assembly has provided that an appeal from a trial court Order
or judgment automatically "stays all further proceedings in the court
below upon the judgment appealed from, or
upon the matter embraced therein[.]" N.C. Gen. Stat. § 1-294 (2015). Appellant’s application does not embrace
jurisdiction and the general rule does not apply. The rule codified at section 1-294 and, by
extension, the functus officio doctrine, are not without
exceptions. For instance, even when a party has noted an appeal, the trial
court "retains jurisdiction to take action which aids the appeal, ... and
to hear motions and grant orders," when those matters are "`not
affected by the judgment appealed from.'" Faulkenbury v. Teachers' & State Employees' Ret. Sys. of N.
Carolina, 108 N.C.App. 357, 364, 424 S.E.2d 420, 422 (quoting
N.C. Gen. Stat. § 1-294), aff'd per curiam, 335 N.C. 158, 436
S.E.2d 821 (1993). As shown below, no decision
by this Court could possibly be affected by hearing Appellant’s application for
the return of his passports.
After
the jurisdiction hearing, Appellant did exactly what they told him to do and
filed “an application” for the return of his passport, hoping to avoid this
appeal altogether. (RA p167, RB p103). However, the positions of opposing
counsel, Jeffrey L. Miller, and the trial court changed one hundred eighty degrees,
and once again, Appellant’s right to travel abroad, even by himself, was
denied. Appellant did not ask to
travel with his son. He simply requested
to visit his birthplace and was denied. (AA p39 line 10-12, TB p14 line 10-12).
Jeffrey
L. Miller stated that, “[the custody order he drafted] was to protect [the]
child from being abducted and taken by Mr. Grodner to Poland or other places,
so that he couldn’t get the child’s
passport and so that he couldn’t, himself, leave the country with the child
without making an application. And [the trial court] ordered that his
passport simply be deposited and held
until, if he wanted to travel, he made some application for the use of his
passport.” (emphasis added). (TA
p53 line 16-23, AB p146 line 14-21). He later added, “[The trial court hasn’t]
tried to restrain or take [Appellant’s passports] away in any way. [The trial
court] tried, in [its] order, to prevent [Appellant] from using the passports to travel with the child. And if he wanted
to travel, uh, he wasn’t restricted from
that travel, but he had to make a(n) application to the Court to get his
passport.” (TA p54 line 16-20, AB p147
line 14-18). Shortly thereafter, the trial court stated, “I am going to continue to allow Mr. Grodner access to
use his passports personally, uh, as long as it’s, uh, through the application
and made, uh, for his personal travel, just so it does not apply to the child
traveling with him.” (emphasis added)
(TA p60 line 17-21, AB p153 line 15-19).
After
being told repeatedly by the attorney who drafted the Order and the judge who
signed it, that the Order was never meant to restrict his travel without the
minor child and that all he need do to get his passport back was to ask for it,
a few days later Appellant did precisely that. In a single sentence application
filed with the trial court, Appellant “asked this Court for return of his
passports because he plans to travel to Poland in year 2017.” (RA p167, RB p103).
The application did not make any reference to jurisdiction nor did it request
that his son accompany him. In direct
contravention of everything he said at the jurisdictional hearing, opposing
counsel, Jeffrey L. Miller, opposed the return of Appellant’s passports by
filing a motion “suggesting” that the trial court lacked jurisdiction to hear
the application. (AA p1-10, RB p149-158).
The
trial court took Jeffrey L. Miller’s suggestion stating, “I feel that what’s
been alleged does - has been claimed by Mr. Grodner to affect a substantial
right (inaudible), that the Court of Appeals will have to govern the decision
in this case and I am from - you know, I don’t have the power to rule on [the
application for the return of Appellant’s passport] until they issue a decision
or otherwise let go of the appeal.” (AA
p39 line 7-12, TB p14 line 7-12). The first part of the trial court’s statement
(that taking Appellant’s passport affected a substantial right) though true,
has nothing to do with his subsequent conclusion that he lacked authority to
hear the application. The two matters
are not mutually exclusive.
For
example, if this Court were to rule that the trial court lacked jurisdiction to
take the passports, there would be no harm if the trial court returned them.
Such a ruling would moot the original mistake.
On the other hand, if this Court were to rule that the trial court did have jurisdiction to take Appellant’s
passports, the custody Order would be valid and it says Appellant may apply for
the return of his passports. Even if the
trial court refused to return Appellant’s passports, and this Court were to
rule later that the trial court lacked jurisdiction to take them in the first
place, the parties would be in the exact same position (i.e. the Appellant
would still be without his passports) as he is now. No additional harm would result in that scenario, The application does not “embrace the appeal of
jurisdiction” and it might have mooted all of this. There was no good reason not to hear this and
any objection to hearing it, belonged to Appellant. The trial court erred in not hearing the
application.
III. THE
COMBINED EFFECT OF THE TWO DISTRICT COURT ORDERS CONSOLIDATED FOR APPEAL
DEMONSTRATES AN EXTRA-JURISDICTIONAL VIOLATION OF APPELLANT’S CONSTITUTIONAL
RIGHT TO TRAVEL AND DUE PROCESS.
Standard
of Review
“Whether
a trial court has subject-matter jurisdiction is question of law, reviewed de
novo on appeal.” McKoy v. McKoy, 202
N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010).
Moreover, “[w]hen the record clearly shows that subject matter
jurisdiction is lacking, the Court will take notice and dismiss the action ex
mero motu. Every court necessarily has the inherent judicial power to inquire
into, hear and determine questions of its own jurisdiction, whether of law or
fact, the decision of which is necessary to determine the questions of its
jurisdiction.” Lemmerman v. A.T. Williams
Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986).
Argument
Other
than the death of a loved one, the end of a marriage and the accompanying loss
of the right to see one’s child on a daily basis, is without doubt the most
traumatic event a human can endure. The legal processes at work in divorce and
child custody proceedings add to that stress and turmoil, in the best of
circumstances. Those difficulties
increase exponentially when a pro se litigant, which circumstances compelled
Appellant to be, attempts to navigate those legal waters. When those legal proceedings go sideways,
like they did in this case, it becomes nearly impossible for a parent to endure
it all.
A
parent who goes before a child custody court, is entitled to certain basic
expectations like notice, Orders supported by clear judicial authority, respect
for constitutional rights, equal treatment and some degree of consistency. What happened below was far different. No one
ever notified Appellant his passports
might be taken. No one ever told Appellant what law gave the
trial court the authority to take away his passports
and his constitutional right to international travel. Appellant, while a pro se
litigant, was deprived of his right to know what legal authority the
trial court relied on to abrogate that right.
At the same time, the trial court said its custody Order was not meant
to restrict Appellant from international travel without his son, and his passport
was available if he would only ask. When
Appellant asked the trial court for permission to travel alone to his
birthplace, the same judge who entered all three Orders in this case stated
that he lacked the authority to consider the request. Moreover, none of the restrictions on
Appellant’s right to travel affect(s) the sole reason for the proceeding, the
best interests of the minor child. Can there
be any genuine debate that these proceedings failed to satisfy the minimum
expectations we all should demand?
Frankly,
it is impossible to reconcile what the trial court did with what it said. The trial court -- and opposing counsel --
went out of their way to say that the custody Order did not mean what it
actually says and all Appellant needed to do to remedy the situation was to ask
nicely. The trial court stated it was
going to “continue to allow” Appellant “access” to his passports as long as his
travel did not include his son [when in fact it had never
allowed him any access at all and could not “continue” to do that which it had
never done!]. The Appellant did ask(ed)
nicely but got the same result, no passports.
It is a vast understatement to say that the trial court acted
capriciously.
The
combined effect of Judge Braddy’s custody Orders is that for the last two years
an American citizen has been prohibited from traveling abroad -- though the
U.S. government authorized it – and he can’t even ask for his passports
back. Judge Braddy ruled he has the power
to take Appellant’s rights away, and then ruled that
he lacked the power to restore what he took away.
It is a constitutional “Catch-22” that violates Appellant’s rights while
providing no discernible benefit to the minor child. It has the look – and feel of punishment and
has no place in a child custody Order.
Defendant-Appellant
has Ph.D. in Economics and is currently tenured Professor at East Carolina
University, with multiple economic journal publications. However, he does not
have any legal training and due to extensive nature of this litigation which
has become very costly (in part due to aforementioned actions taken by Jeffrey
L. Miller ), he is forced to represent himself pro se in this appeal. But
somehow, he has managed to endure it all and navigated all these legal matters
to arrive here, where he seeks the justice that have been denied him thus far.
CONCLUSION
For
the reasons stated, Appellant respectfully requests that this Court reverse the
District Court due to lack of subject matter jurisdiction to order the
surrender his Appellant’s passports and a lack of jurisdiction to place
restrictions upon his right to travel abroad. Further, the District Court did
not have subject matter jurisdiction to place restrictions and conditions upon
both Appellant’s and the minor child’s passports due to federal sovereignty.
Accordingly, Appellant respectfully requests that this Court enter a ruling
that the above-referenced provisions in the original custody Order be stricken
and deemed void ab initio due to lack of jurisdiction and that Appellant’s
passports be returned forthwith.
This the 27th day of October,
2017.
For Defendant-Appellant ___________________
Andrzej
Grodner, pro se
(currently
Andrew Grodner)
P.O. Box
3571
Greenville,
NC 27836
252-558-3040
email:
agrodnercase@gmail.com
CERTIFICATE THAT BRIEF IS WITHIN WORD LIMIT
I certify
that the foregoing Petitioner-Appellant’s Brief does not exceed the
word
limitation of 8,750 words imposed by the North Carolina Rules of Appellate
Procedure,
Rule 28(j)(B).
For Defendant-Appellant ___________________
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
CERTIFICATE OF SERVICE
This is to certify that the
undersigned has this day, the 27th day of October, 2017, served a
copy of the foregoing document upon all parties of record by depositing a copy
of the same in the custody of the U.S. Postal Service, first class postage
prepaid, addressed as follows:
Mr.
Jeffrey Miller, Esq.
Miller
and Audino, LLP
2510 E.
10th Street
Greenville,
NC 27858
252-493-6138
email:
jeff@millerandaudino.com
Attorney
for Plaintiff
This
the 27th day of October, 2017.
___________________
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
No.
17-570 DISTRICT 3-A
No.
17-813
*******************************
HUNTER F.
GRODNER, )
(now Summerlin) )
Plaintiff-Appellee )
) FROM
PITT COUNTY
v. ) No. 13 CVD 398
)
ANDRZEJ GRODNER )
(now Andrew Grodner) )
Defendant-Appellant )
*******************************
INDEX
TO APPENDIX
*******************************
Tabakova v. Teodorescu, No. COA09-424 (N.C. Ct. App. Feb. 16, 2010)
(unpublished) ..................................... Appendix
page 1
[1]
Captain Kirk
bluffed that if his spaceship (Enterprise) were attacked then, because it had a
secret substance - Corbomite, it would inflict equal damage on their attacker,
assuring mutual destruction - in order to prevent being attacked.
