COA17-813: Appellant Amended Reply Brief

To do

COA17-570: Appellant Amended Reply Brief

Direct Link to Amended Brief in 17-570: https://www.ncappellatecourts.org/show-file.php?document_id=220103

Link to opinion attached in Appendix, Tabakova v. Teodorescu, No. COA09-424: https://appellate.nccourts.org/opinions/?c=2&pdf=5455

Link to opinion attached in Appendix, Ansell v. Ansell, 759 S.E.2d 916, 328 Ga. App. 593 (Ct. App. 2014): https://scholar.google.com/scholar_case?case=4951965288194410503

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Link to Plaintiff-Appellee Brief in COA17-570: https://www.ncappellatecourts.org/show-file.php?document_id=219223

Link to Plaintiff-Appellee Brief in COA17-813: https://www.ncappellatecourts.org/show-file.php?document_id=219224

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Documents in case: 17-570:
https://www.ncappellatecourts.org/search-results.php?sDocketSearch=17-570&exact=1

Documents in case: 17-813:
https://www.ncappellatecourts.org/search-results.php?sDocketSearch=17-813&exact=1

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No. 17-570                                                                             DISTRICT 3-A

NORTH CAROLINA COURT OF APPEALS

*******************************

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 AMENDED REPLY BRIEF

*********************************************

(filed electronically 23 January 2018)

INDEX

TABLE OF CASES AND AUTHORITIES............................. iii

ORGANIZATION OF DOCUMENTS IN CONSOLIDATED

          CASES........................................................................... v

ARGUMENT:.......................................................................... 1

I.        RESPONSE TO APPELLEES' ISSUE THREE: The trial court acted reasonably and within its authority based on the evidence in restricting the Defendant's access to and use of his passports and of the child's passport. Defendant was not denied due process or the right to travel. The unchallenged findings of the trial court supported the restrictions on the Defendant's use of passports in his travels and such restrictions served the best interest of the child.................................. 4

II.      RESPONSE TO APPELLEES' ISSUE ONE: The Defendant's appeal for an Order denying his Rule 60 Motions constitutes an improper effort to seek collateral and appellate review of the terms of the underlying child custody Order which was not appealed. His appeal must be dismissed or the Order denying relief must be affirmed................................................................ 6

III..... RESPONSE TO APPELLEES' ISSUE TWO: The Pitt County District had subject matter jurisdiction to enter a child custody Order which included reasonable restrictions on passports designed to protect and preserve the custody and best interest of the minor child. ................................................................... 8

CONCLUSION...................................................................... 14

CERTIFICATE THAT BRIEF IS WITHIN WORD               LIMIT    15

CERTIFICATE OF SERVICE................................................ 16

APPENDIX............................................................................ 17

         

           

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, 29

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

Ottway Burton, P.A. v. Blanton, 107 N.C. App. 615, 421 S.E.2d 381 (Ct. App. 1992)........................................................... 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. § 1A-1 Rule 60............................................ XX

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, 25, 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

Given that the cases were consolidated on appeal, 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

(ARBA pXX-YY line WW-UU)

reference to Appellee Reply Brief 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

(ARBB pXX-YY line WW-UU)

reference to Appellee Reply Brief in COA17-813 on pages from XX to YY, lines from WW to UU

No. 17-570                                                                              DISTRICT 3A

NORTH CAROLINA COURT OF APPEALS

*******************************

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 AMENDED REPLY BRIEF

*******************************

Pursuant to Rule 28(h)(3) of the North Carolina Rules of Appellate Procedure, Appellant submits the following Reply Brief.

ARGUMENT

This case boils down to subject matter jurisdiction. If the custody court can take a parent's passports then Appellant loses. If the Code of Federal Regulation concerning passports controls, i.e. the custody court did not have jurisdiction, then Appellant cannot lose.

Appellee, through her attorney Jeffrey L. Miller (hereinafter referred to as "Mr. Miller") agrees that a custody court cannot take passports but suggests that it can impose "reasonable" travel "restrictions." Hence, Mr. Miller makes a departure from reality and argues that the Order which commands Appellant to "surrender" his passports to the court (kept for almost three years now) did not actually "take" his passports. Every argument Mr. Miller makes is dependent upon whether this Court is willing to engage in that flight of fancy. If the trial court had not taken Appellant's passports then this Honorable Court would not have to read this Reply Brief and decide on this case.

Mr. Miller repeatedly says that the trial court had to take Appellee's passport to protect the child but those same facts will not matter when Appellant asks for their return. If all Appellant needs to do to get them back is to ask, why take them at all?

However, Mr. Miller eventually admits what is obvious. He says that Appellant must "assure" his ex-wife (Plaintiff-Appellee) that the child is safe before he can get his passports back. This may sound simple, but it is actually impossible. At last Mr. Miller reveals why he has gone to such extremes to keep Appellant's passports. He doesn't intend for Appellant to ever get them back. Without any language about passports in the Order, it takes two parents to get a passport for a minor child. This Order goes much farther and says Appellant may not apply for possess any passport for the minor child. Appellant could not put the minor child on an international flight even if the trial court hadn't taken Appellant's passports. Since it was already impossible for Appellant to take the child anywhere that would require the child to have a passport, there is literally nothing Appellant can do to give any additional "assurances of safety." Appellant never even threatened to take the child out of this jurisdiction. How can a man give someone assurance that he will not perform an impossible act - that he has never even threatened to do? He can't.

Appellant's passports have been taken and Mr. Miller does not intend for Appellant to ever get them back - and there is no legal support, statute or case law, to support it! The complete absence of legal authority and basic logic explain why two out of the three issues in Appellee’s Answer brief (the first and third issues) have nothing to do with jurisdiction.  They are both straw man arguments and should be disregarded[1]. Appellee spends a mere 32 lines out of 22 pages in his Answer brief addressing jurisdiction, the only issue Appellant actually raised. (See Appellee’s Brief at pp 9-10) Appellant will dispense with Appellee’s straw man arguments before addressing the 32 lines Appellee devoted to jurisdiction.

I.        RESPONSE TO APPELLEES' ISSUE THREE: The trial court acted reasonably and within its authority based on the evidence in restricting the Defendant's access to and use of his passports and of the child's passport. Defendant was no denied due process or the right to travel. The unchallenged findings of the trial court supported the restrictions on the Defendant's use of passports in his travels and such restrictions served the best interest of the child.

          Appellee’s third issue is a classic straw man argument and is addressed first.  (See Appellee’s Brief at pp 10-22) Appellee spends 12 pages (almost 300 lines) arguing that the District Court’s original custody order contains ample factual findings to justify taking Appellant’s United States and Polish passports (and that somehow it is in the minor child’s best interests to take away his father’s right to travel abroad without his minor son).[2] The patent absurdity of that argument makes attacking it irresistible, but Appellant never raised that issue and therefore refuses to take the bait. The factual findings can never justify taking Appellant’s passports because such an act exceeded the court’s lawful jurisdiction.  The findings simply do not matter. 

          Appellee’s argument that his red flag suspicions permit the custody court to do whatever it wants is like saying the stealing food because one’s child is hungry is perfectly acceptable behavior.  While it may be completely understandable and it certainly mitigates the offense, taking the property of another is theft, regardless of the reason.  Likewise, an extrajudicial act is void regardless of the reason.  For example, assume that a child custody case involves a dangerously overweight kid.  The trial court, in reliance on the child’s physician, makes the rational and reasonable order that no ice cream or other junk food will be allowed in the home when the minor child is present.  However, could the trial court also order that the non-custodial parent is not allowed to have ice cream in his home - even when the minor child is not present – because the court suspects that parent will secretly give the child ice cream?  As outrageous as this example is (one hopes), it is easier to justify the order prohibiting the non-custodial parent from having ice cream in his home in the child’s absence than it is to justify taking Appellant’s passports.  Ice cream is not made, issued and regulated by the governments of the United States or Poland.  If federal law is not an impediment to state jurisdiction, nothing is.

II.      RESPONSE TO APPELLEES' ISSUE ONE: The Defendant's appeal for an Order denying his Rule 60 Motions constitutes an improper effort to seek collateral and appellate review of the terms of the underlying child custody Order which was not appealed. His appeal must be dismissed or the Order denying relief must be affirmed.

          Appellee’s first issue (alleging improper use of Civil Procedure Rule 60), is a subtler straw man argument, though only slightly so. (See Appellee’s Brief at pp 6-9)[3] Though Appellee raised this Rule 60 issue for the first time on appeal in his Answer brief, Appellant is prepared to respond. 

          Appellee argues that Appellant improperly used Civil Procedure Rule 60 in his motion to the trial court in an improper attempt to relitigate the original custody order (instead of appealing it) and somehow that makes this appeal improper. (See Appellee’s Brief at pp 6-9)   However, a close reading of this issue reveals that Appellee never even suggests that jurisdiction can’t be raised via a Rule 60 motion.   Appellee argues instead that legal errors cannot be litigated via Rule 60.  While that is the general rule, it does not apply when the legal error is lack of jurisdiction.  The distinction is between “could” and “should.”  Legal errors are “should” errors.  They refer to whether a judge “should” have ordered something in a particular case.  Jurisdiction errors are “could” errors and refer to whether a judge “could” order something.  The Ottway Burton, P.A. v. Blanton case, explains the difference succinctly.   

A Rule 60(b)(4) motion is only proper where a judgment is "void" as that term is defined by the law. A judgment will not be deemed void merely for an error in law, fact, or procedure. A judgment is void only when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered.  The correct procedure for attacking a judgment is dependent upon the type of defect asserted. If a judgment is void, it is a nullity and may be attacked at any time. (cite omitted) Rule 60(b)(4) is an appropriate method of challenging such a judgment. An erroneous judgment, by contrast, is one entered according to proper court procedures and practices but is contrary to the law or involves a misapplication of the law. Id. As our appellate courts have consistently held, erroneous judgments may be corrected only by appeal and Rule 60(b) motions cannot be used as a substitute for appeal. (emphasis added) Ottway Burton, P.A. v. Blanton, 107 N.C. App. 615, 616-617, 421 S.E.2d 381, 382-83 (1992)

Presumably, Appellee agrees with this case since he cited twice.   (See Appellee’s Brief at pp 8,11) This case completely eviscerates Appellee’s argument and demonstrates that Appellant properly used Rule 60.  Further, "a court's inherent authority does not allow it to act where it would otherwise lack jurisdiction." In re McKinney, 158 N.C .App. at 443, 581 S.E.2d at 795.

          Appellee’s Rule 60 argument is also circular.  It presumes the court had jurisdiction. Then it says that Rule 60 could not be used because the order is not void.  However, if the Order lacked jurisdiction, Rule 60(b)(4), was the proper way to attack it.  This argument does nothing to advance the ball.  Appellant never argued that the trial court shouldn’t have taken his passports.  Appellant has consistently argued that the trial court couldn’t take his passports.   Subject matter jurisdiction can be raised at any time. Ottway Burton, P.A. v. Blanton, 107 N.C. App. 615, 616-617, 421 S.E.2d 381, 382-83 (1992) Thus, Appellee spent 60 lines making an argument that does not apply – in response to an argument no one made – and ends up citing cases which show that Appellant addressed jurisdiction in the correct manner.

III.     RESPONSE TO APPELLEES' ISSUE TWO: The Pitt County District had subject matter jurisdiction to enter a child custody Order which included reasonable restrictions on passports designed to protect and preserve the custody and best interest of the minor child.

          Appellee’s argument that the court judge had jurisdiction (“authority”) to take away passports issued by the governments of the United States and Poland is more interesting for what it does not contain rather than what it does contain – and its brevity, 32 lines. (See Appellee’s brief pp 9-10) To illustrate, both Raleigh/Durham and Charlotte have huge airports with many international flights.  It is safe to say that quite a few of the parents who have had child custody hearings in North Carolina also have passports to make use of those international flights.  Surely, the issue of international travel has arisen before in custody actions in this state.  However, Appellee did not cite a single (published or unpublished) case or statute from the State of North Carolina – or any other state – that says a state custody court has jurisdiction/authority to order anything at all with respect to passports, let alone confiscate them – and with good reason.  There are no such cases or statutes.

          This omission is a fatal one.  Appellee must establish the presence of jurisdiction, and he has utterly failed to do so. Guilford County Planning & Dev. Dep't v. Simmons, 115 N.C. App. 87, 91, 443 S.E.2d 765, 768 (1994) (Plaintiff bears burden of proving subject matter jurisdiction). The only legal authority from this state that he offers to establish jurisdiction to take Appellant’s passports are four cases that have nothing to do with child custody, much less passports, (which do not support his position at all) [Haken-Volkening v. Haken, 143 N.C. App. 688, 693, 547 S.E.2d 127, 130 (2001); Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987); Drummond v. Cordell, 73 N.C.App. 438, 326 S.E.2d 292 (1985), aff'd, 315 N.C. 385, 337 S.E.2d 850 (1986); Ottway Burton, P.A. v. Blanton, 107 N.C. App. 615, 616-617, 421 S.E.2d 381, 382-83 (1992)] and a fifth case that involves child custody, but has nothing to do with passports or travel. [McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010)].  (See Appellee's Brief at pp 9-10)   That’s it.          

          Two of those cases (Haken-Volkening v. Haken and McKoy v. McKoy) were found to be lacking in subject matter jurisdiction, and the McKoy case actually supports Appellant’s position.  In McKoy v. McKoy, the custody court was found to be without subject matter jurisdiction due to a statute which gives the clerk original jurisdiction in guardianship matters.   Likewise, the federal law deprives the custody court of jurisdiction to issue orders regarding passports unless those orders comply with the Code of Federal Regulations.  None of the cases cited by Appellee bear the slightest relevance to the jurisdictional issue before this Court, but they do prove one thing; Appellee has no legal support whatsoever to support his contention that the District Court had jurisdiction/authority to order the surrender of Appellant’s passports.    

          The second notable omission is the “Romanian” case that Mr. Miller “cited without actually citing it” at the District Court hearing; the case which he contended gave the District Court the “authority under state law that the federal courts recognize [to order Appellant to surrender his passports].”  (Cite pg 53, lines 10-11)   Mr. Miller buttressed that misrepresentation by adding, “[in his Romanian case involving a college professor that] the Court of Appeals upheld the restriction, uh, placed on the passports.” Cite pg 54, lines  9-10.  However, the unpublished Tabakova v. Teodorescu decision (to which he was referring) did not “uphold [any] restriction, uh, placed on [the parent’s] passports.”  Tabakova v. Teodorescu, 202 N.C. App. 586, 691 S.E.2d 133, 2010 WL 520890 (unpublished COA09-424, 16 February 2010)

          The custody order, which this Court upheld, stated the non-custodial parent SHALL be permitted to engage in international travel with the minor child for 3 weeks per year.  Id.   It doesn’t have one word in it about the non-custodial parent’s passport, and it didn’t restrict either parent’s right to travel in any way in the minor child’s absence.  That Mr. Miller did not cite his unpublished case as support for the proposition that he “referenced” at the trial level (as legal authority to support taking Appellant’s passports) can only be interpreted as an admission that it does not provide any such legal authority.  The failure to cite that case is proof that Mr. Miller misled the trial court[4].

          Within issue three, Appellant cites a few other cases where he seems to argue that the trial court had inherent authority to take Appellant’s passports.  They either fail to support his rather vague argument, outright contradict it or support Appellant’s position.  (See Appellee’s brief pp 12-13) One is a criminal appeal from 1971 involving a curfew (State v. Dobbins, 277 N.C. 484, 498, 178 S.E.2d 449, 457 (1971)), and the other (Prince v. Massachusetts, 321 U.S. 158, 166 (1944)) is a 1944 criminal appeal of child labor laws resulting from a parent having a minor pass out Jehovah’s Witness pamphlets. The Dobbins case even acknowledges the right to travel and says that it can only be restricted in compelling circumstances which are certainly not present in this case.  Id.

          Later, Appellee cites eight child custody cases that he says are analogous to taking Appellant’s passports. (See Appellee’s brief pp 20-21)   However, Appellee has hoisted himself on his own petard.  Appellant does not dispute that there are a good many things that a judge can do in a child custody case.  He simply says there is a limit.  Not one of those custody cases cited by Appellee contain a provision in any custody order that even touched upon a matter governed exclusively by federal law as passports are.  The absence of any custody case where any judge has done anything remotely like taking a passport is a compelling argument that it cannot be done.

          Last, Appellee misrepresented the holding in a case (which Appellant cited in his Initial brief) that directly says a custody order cannot contain provisions regarding passports that are inconsistent with the Code of Federal Regulations. (See Appellee’s brief p 11) That case is Ansell v. Ansell, 759 S.E.2d 916, 328 Ga. App. 593 (Ct. App. 2014) It is the only published custody case involving passport restrictions cited by either party.  To eliminate any argument as to what it actually says, that case is attached hereto.   The Georgia Court of Appeals actually said the opposite of what Appellee claims they said:

We have found no Georgia law expressly granting a trial court authority to require a parent to execute passport documents for a minor child, when that parent objects to giving consent….as the parties correctly recognize in their appellate briefs, the issuance of a passport to a minor child is a matter governed by federal law; and the record in this case does not reflect that the trial court considered federal regulations …..Accordingly, we vacate the trial court's judgment insofar as it orders the father to execute documents necessary for the mother to obtain a passport for the child, and we remand the case for the trial court to reconsider its grant of relief to the mother in accordance with federal regulations …. {emphasis added} Id.

          Though the facts do not involve taking a parent’s passports, the jurisdictional argument is exactly the same.  The Georgia Court of Appeals recognized that the Code of Federal Regulations govern what a custody court may or may not do when a minor’s passport is at issue in a custody case, and they actually help insure that a child is not kidnapped.  Consequently, the Georgia Court of Appeals vacated the trial court’s order (which ordered the father to cooperate with obtaining the child’s passport which is not in the Code of Federal Regulation) because the record did not demonstrate that the Code of Federal Regulations had been considered.  It then remanded the matter for consideration of those federal rules.  Id. 

          In the absence of specific statutory authority to do otherwise (as the Georgia Court of Appeals noted), the correct course of action is to vacate all provisions in the custody order relating to passports and remand the matter with instructions to consider and apply the Code of Federal Regulations (as the Georgia Court of Appeals did) should the trial court be inclined to address the passport issue further.  Appellee says that the one case that really speaks to the issue of jurisdiction somehow does not apply when in fact it is the only case that does.

CONCLUSION

          For the reasons stated herein, Appellant respectfully requests that all provisions in the custody order related to passports be vacated and that the matter be remanded for consideration of the Code of Federal Regulations for passports and/or the applicable law for Polish passports.

          This the 23^rd day of January, 2018.

For Defendant-Appellant                          ________/s/___________

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 3,750 words, a limit imposed by the North Carolina Rules of Appellate Procedure, Rule 28.

For Defendant-Appellant                          ________/s/___________

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 23^rd day of January, 2018, 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 23rd day of January, 2018.

                                                                                         

                                                                 ________/s/___________

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

NORTH CAROLINA COURT OF APPEALS

*******************************

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

*******************************

Ansell v. Ansell, 759 S.E.2d 916, 328 Ga. App. 593 (Ct. App. 2014)               ...................................................................... Appendix page 1

Tabakova v. Teodorescu, No. COA09-424 (N.C. Ct. App. Feb. 16, 2010) (unpublished) ..................................... Appendix page 6

Defendant-Appellant Amended Reply Brief in COA17-813                               .................................................................... Appendix page 16

---

[1] A straw man is a form of argument where one refutes, or knocks down, an argument that the other side did not make, the straw man, and then grandly proclaims total victory -- without having addressed the argument that actually was made.

[2] Here Appellee fails to respond to Appellant’s contention that taking his passports does nothing to prevent the child from being kidnapped because the custody order gave the mother complete authority over the child’s passport. If Appellant was to forge the child’s passport, surely, he \          could forge his own passport.  Moreover, the CFR permits the court or a parent to place a child’s name on a list that goes to all international airports just to prevent any suspected kidnappings.

[3] Appellee actually raised another straw man argument within this argument - in Appellee’s footnote #2 – when he argues that this Court should not listen to the ad hominem attacks made against him.  However, Appellant did not make any ad hominem attacks in his Initial brief which makes Appellee’ protestations reminiscent of Shakespeare’s, “Lady, thou dost protest too much!”

[4] Appellee does cite Tabakova v. Teodorescu in the last paragraph of the last page of his brief (page 22), but he doesn’t argue that it authorized the trial court to take Appellant’s passports as he did to the trial court.  Instead, Appellee says the case is an example of a reasonable exercise of “discretion” and suggests that taking Appellant’s passports was also a reasonable exercise of discretion – despite the fact that the Tabakova v. Teodorescu case says nothing about taking a parent’s passport.

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No. 17-813                                                                             DISTRICT 3-A

NORTH CAROLINA COURT OF APPEALS

*******************************

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 AMENDED REPLY BRIEF

*********************************************

(filed electronically 23 January 2018)

INDEX

TABLE OF CASES AND AUTHORITIES............................. iii

ORGANIZATION OF DOCUMENTS IN CONSOLIDATED

          CASES.......................................................................... iv

ARGUMENT:.......................................................................... 1

I.        It is irrelevant whether this is an appeal of interlocutory Order (ISSUE I) or whether trial court abused its discretion (ISSUE II) because if the trial court did not have jurisdiction to confiscate Defendant's passports and the Order was void (discussed in pending appeal COA17-570) then it could not stay a void Order.. 3

CONCLUSION...................................................................... 13

CERTIFICATE THAT BRIEF IS WITHIN WORD               LIMIT    14

CERTIFICATE OF SERVICE................................................ 15

APPENDIX............................................................................ 16

         

           

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, 29

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

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, 25, 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

Given that the cases were consolidated on appeal, 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

(ARBA pXX-YY line WW-UU)

reference to Appellee Reply Brief 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

(ARBB pXX-YY line WW-UU)

reference to Appellee Reply Brief in COA17-813 on pages from XX to YY, lines from WW to UU

No. 17-813                                                                              DISTRICT 3A

NORTH CAROLINA COURT OF APPEALS

*******************************

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 AMENDED REPLY BRIEF

*******************************

Pursuant to Rule 28(h)(3) of the North Carolina Rules of Appellate Procedure, Appellant submits the following Reply Brief.

ARGUMENT

Appellee, through her attorney Jeffrey L. Miller (hereinafter referred to as "Mr. Miller") writes in footnote 1: "In a separate appeal before this Court, COA 17-570, Defendant has appealed a 12 January 2017 Order entered by the Pitt County District Court denying his Rule 60(b) motion for relief. Though this Court has consolidated the cases for hearing, they are independent appeals and separately argued." ([RR]p. 1) Then, Mr. Miller wrote  (p. 6) that "As an initial matter, this Court must determine whether it has jurisdiction to hear this appeal," [RR]

Defendant-Appellant contends that Miller is attempting to intentionally mislead this Court by deliberately ignoring that this Court must first determine whether it has jurisdiction to hear COA17-570, and if it determines that it has jurisdiction to hear COA17-570 and Defendant-Appellant wins, ie. this Court agrees with Defendant-Appellant that the district Court did not have jurisdiction to confiscate Defendant-Appellant's passport, then he also wins appeal in this case, COA17-813. Therefore, as the only argument of relevance, Defendant-Appellant argues the fundamental jurisdiction issue presented in COA17-570 and also attaches his Amended Reply Brief in case COA17-570. In essence, if the district court entered a void Order (COA17-570), then stay of that Order is also void (COA17-813).

I.        It is irrelevant whether this is an appeal of interlocutory Order (ISSUE I) or whether trial court abused its discretion (ISSUE II) because if the trial court did not have jurisdiction to confiscate Defendant's passports and the Order was void (discussed in pending appeal COA17-570) then it could not Stay a void the Order.

          Rarely do legal contests lend themselves to the level of clarity this appeal presents. Though Appellant approached it from different angles, there is but one over-arching issue, subject matter jurisdiction.  Does a North Carolina child custody court have jurisdiction to take United States and Polish passports (issued by the United States Secretary of State and the sovereign state of Poland) from a parent and/or child (United States Citizens) or not?  If it does, Appellant loses.  If it does not, Appellant cannot lose.  Can a Pitt County District Court Judge hearing a child custody case confiscate (it still has them) federal property and disregard both federal law and Polish law -- or not?  There is no gray area.  Nothing else matters.  Appellee’s 22-page Answer brief spends 32 lines on this issue.  (See Appellee’s Brief at pp 9-10)

          Appellee did not respond to Appellant’s argument that passports are solely a matter of federal law at all, probably because Mr. Miller conceded the point at the April 19, 2017 hearing (when Appellee unsuccessfully applied to get them back).  Cite “So the sovereign issue, the-the subject matter jurisdiction issue, is an appealable, substantial right issue.”  (TB pg 7, lines1-3)   On appeal, Appellee abandoned that position and side-stepped the sovereignty issue by repeatedly asserting that the custody Order (which commanded Appellant to “surrender” his passports to the court and “make application” for their return in the event he has “any travel plans that require a passport”), didn’t really take his passports; it just imposed travel restrictions.  (See Appellee’s Brief at pp 11,12,13,14,15, etc.)  Ordering the surrender of one’s passports places a minor condition on international travel in the same the way that decapitation makes it a little difficult to concentrate.

          In a few weeks, the District Court will have had Appellant’s passports for 3 years. (R p 49)   Appellant filed a motion alleging lack of jurisdiction to get his passports back.  He lost.  He appealed.  He then filed an application to get them back.  He lost. He appealed again.  He is writing this brief now to get them back.  It is delusional and offensive to argue that the Order which commanded Appellant to “surrender” his passports to the court - which has kept them for 3 years and refused to return them - did not “take” his passports or violate his “right to travel.”  If Mr. Miller actually believed what he wrote (that all Appellant need to get his passports back is to ask), why has he written two appellate briefs opposing their return and why did he ask the trial court for a stay when Appellant filed his written application for the return of his passports?  Actions speak louder than words.  Mr. Miller’s words do not match his actions.

          Appellee actually agrees it is not lawful to “take” an adult’s passports in a custody action. Every argument he makes is dependent upon that fantasy that Appellant’s passports weren’t actually taken from him.  For example, if it is just a travel restriction (as Appellee argues repeatedly), it is not jurisdictional.  If it is just a travel restriction (as Appellee argues), it is a “legal error” that can not be raised via Rule 60.  If it is just a travel restriction (as Appellee argues), it is a matter of “discretion.”  However, the converse is true as well.  If Appellant’s federal and Polish passports were taken (as Appellant argues), it is jurisdictional.  If his passports were taken, that portion of the judgment is void, and Rule 60(b)(4) is the proper way to raise the issue.  If his passports were taken (as Appellant argues), it was not within the judge’s discretion to do so.  Incredibly, it appears this case boils down to whether Appellant’s passports were taken or not.  Reasonable minds cannot disagree on this.  They remain in the District Court’s possession today. 

          Appellee did not cite a single case that says that a custody court (in any state) can do ANYTHING WITH A PARENT’S PASSPORT and he offered no published cases that permit a custody court to do anything with the child’s passport.   (See Appellee’s Brief at pp 9-22)   In what appears to be an unusual case (the present case), this omission is truly remarkable!   Mr. Miller misrepresented the law to the trial court and Appellant called him out on it his Initial Brief!    Mr. Miller did not even bother to deny it nor did he offer any attempt to explain what he said to the trial court.  Apparently, he hopes if he ignores it, this Court will too.  Even the trial court (which let Mr. Miller get away with referring to the unpublished “Romanian case” without requiring him to provide a copy or even a citation) said, “if the case goes to appeal, [Mr. Miller will] have to cite his authority.”  (R p 237)   And yet, he didn’t.  Shouldn’t Mr. Miller’s failure to cite his authority on appeal be the end of this?  If not, the judge’s words have no meaning.  Appellant became an American citizen later in life and believes that the American justice system is just that, a system that produces justice.  If judge’s words have no meaning and there are no consequences for misleading the court, is it?

          In the United States, the jurisdiction of courts is set by constitution or statute, not judicial discretion.  Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987)[1] Appellee defines the subject matter jurisdiction as the determination of child custody, and he says any jurisdiction inquiry must stop there. (See Appellee’s Brief at p 9)   Given the slightest examination, Appellee’s position falls apart.  For example, a criminal court that has jurisdiction to find a man guilty of murdering his wife cannot take away his (former) marital home any more than a civil court that has jurisdiction to enter a money judgment can physically restrain the debtor until the judgment is paid.   Using Mr. Miller’s argument, they can.  For, if the courts had jurisdiction to hear the underlying disputes then taking the marital home and restraining the debtor are not questions of jurisdiction.  According to Mr. Miller they are discretionary acts subject to abuse of discretion, review only on direct appeal.  Likewise, Appellee claims taking Appellant’s passports is NOT beyond the court’s jurisdiction because it was ordered while the court was exercising its jurisdiction to hear child custody disputes.   Just as the criminal court couldn’t seize the marital home and the civil court couldn’t physically restrain the debtor (due to lack of jurisdiction), neither can a custody court confiscate a parent’s passports (due to lack of jurisdiction).

          Appellant’s passports are the subject matter, not child custody.  U.S. Passports are created by, issued by, regulated by and revoked by the federal government – and no one else.  22 C.F.R. § 51 The Code of Federal Regulations gives state custody courts certain limited powers regarding minors’ passports, but none regarding a parent’s passport. See Ansell v. Ansell, 759 S.E.2d 916, 328 Ga. App. 593 (Ct. App. 2014)   The Code of Federal Regulations permits a custody court to take a child’s passport and it gives one parent the right to obtain a passport for a minor without the other’s parent’s permission provided certain language is placed in the custody order.  22 C.F.R. § 51

          The District Court, as a branch of state government, which is part of our federal system, must comply with the United States Constitution and federal law. Passports are a matter of federal and state child custody/marital dissolution courts must comply with that federal law – just as they must comply with the Sailors and Soldiers Relief Act, Qualified Domestic Relations Order Rules, the nationwide federal child support law, the Bankruptcy Code, and some federal disability income laws – and many, many other federal laws and regulations.   In fact, North Carolina courts – in a child support action - do not have subject matter jurisdiction to determine paternity of Native Americans due to the federal code of regulations which confers that power to the respective Indian Nation.  See Jackson Cty. Child Supp. Enforce v. Swayney, 352 S.E.2d 413, 319 N.C. 52 (1987). 

          Given the extraneous matters raised by Appellee, perhaps it is necessary to state what Appellant is not arguing on appeal.  Appellant has not and does not dispute the power, indeed the duty, of a custody court to issue restrictions or conditions, given appropriate circumstances, on travel – provided the minor child is doing the traveling, but that is not what happened here.

          No doubt the reason Appellee wrote two separate briefs - though this Court consolidated cases COA #17-570 and #17-813 for appeal – is so he could make the audacious statements (that he repeats ad nauseum on pages 11-22 in his Answer brief) that the District Court really didn’t take Appellant’s passports away because all Appellant need do to get them back was ask.  The latter appeal that was consolidated with this appeal (COA case # 17-813) is due to the trial court’s refusal to grant that request after Mr. Miller filed his motion arguing that the trial court did not have jurisdiction to return the passports due to this appeal. 

          Making that statement after Appellant’s request was denied and consolidated for appeal is simply incredulous. One of the main reasons for consolidating the two appeals is so Mr. Miller couldn’t say in this appeal that all Appellant needed to do to get his passports back was to ask, but it did not deter Mr. Miller one iota.  Even if the trial court hadn’t denied Appellant’s request to return his passports, the fact that one has to ask for something to be returned proves that it was actually taken, not that it wasn’t as Mr. Miller claims.  Mr. Miller’s argument is akin to saying that when the court takes your driver’s license, it didn’t really take away your right to drive because you can always ask the court to return it.  However, that request can be – and often is – denied, which is exactly what happened to Appellant.  Even if the court returns your driver’s license later, that doesn’t change the fact that it was still taken away and if you drove before you got them back, you would be guilty of breaking the law.

          It is paradoxical that Appellee makes the false assertion that Appellant can get his passports back any time he asks, given that Appellee devotes over 5 pages in his 22-page brief explaining how dastardly Appellant was.  (See Appellee’s Brief at pp 14-19) Those two positions make no sense whatsoever when juxtaposed next to each other. If Appellant could get his passports back at any time, what was the point in taking them to begin with?  The taking serves no purpose if the facts used to justify taking the passports aren’t relevant to returning them.  On the other hand, if those facts really did matter when the court took Appellant’s passports, shouldn’t Appellant have to prove those reasons no longer exist - or that he has been rehabilitated – to get them back?  Appellee wants to have his cake and eat it too.  The facts really matter to Appellee when he is trying to justify why the trial court should have “discretion” to take Appellant’s passports, but those same facts don’t matter a wit because all he purportedly needed to do to get them back was to ask.  Logically, the facts either matter or they don’t.  They can’t matter when they suit Mr. Miller’s convenience and not matter when they do not.  To further this illusion, in a move reminiscent of the Wizard of Oz, Mr. Miller hopes this Court will forget that the trial court denied his request to return the passports.

          In those five pages, Mr. Miller does not claim Appellant actually did anything to the child nor that he threatened to do so.  Mr. Miller implies that Appellant secretly colluded with his Polish mother to kidnap the child. (See Mr. Miller’s “red flag” on page 14 of his brief) Query how Appellant could ever make Mr. Miller’s “red flag” of secret collusion go away?

          Mr. Miller does not hide his intentions to keep Appellant’s passports forever.  He put it right there in black and white for all to see:

Defendant is not prohibited from traveling abroad or from the use of his passport. He simply must give notice of such travel in a manner that assures the minor child and the plaintiff-custodial parent are protected.”  (See Appellee’s Answer brief p 22, emphasis added)

This ASSURANCE requirement is not in the custody order and no one knows what it means except for Mr. Miller.  It’s a good bet thought that the trial court will take Mr. Miller’s word on what the law requires from Appellant in order to prove this assurance.  There really is no way that Appellant could ever meet that standard. 

          For example, federal law has long required both parents to obtain a passport for the minor child.  The custody order already says the mother is the only one who can apply for and possess a passport for the minor child.  Since the day this custody order was entered, there was literally no way Appellant could ever put that child on an international flight.  He has never taken the child out of this jurisdiction nor threatened to do so.  Yet they still took his passports.  What more can he possibly do to “assure” his ex-wife that she and the child are “protected?”  Will he have to post a bond to get his own passport back?  Would that satisfy Mr. Miller?

          According to Mr. Miller, we don’t need statutes to define what the judge can order.  So, maybe an ankle bracelet will do or perhaps a body camera?  How about a microchip under Appellant’s scalp so Mr. Miller can have constant GPS coordinates of Appellant’s movement?  How long can the District Court and Mr. Miller keep Appellant’s passports? Three years, five years… forever?  Will he ever get to see his father again or attend his funeral?  Apparently, it is all up to Mr. Miller.  What Mr. Miller has been doing to the Appellant for the past 3 years is nothing less than (legal abuse)/(litigation terrorism) and the trial court has sanctioned it.

CONCLUSION

          For the reasons stated herein, Appellant respectfully requests that all provisions in the custody order related to passports be vacated and that the matter be remanded for consideration of the Code of Federal Regulations for passports and/or the applicable law for Polish passports.

          This the 23^rd day of January, 2018.

For Defendant-Appellant                          ________/s/___________

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 3,750 words, a limit imposed by the North Carolina Rules of Appellate Procedure, Rule 28.

For Defendant-Appellant                          ________/s/___________

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 23^rd day of January, 2018, 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 23rd day of January, 2018.

                                                                                         

                                                                 ________/s/___________

Andrzej Grodner, pro se

(currently Andrew Grodner)

P.O. Box 3571

Greenville, NC 27836

252-558-3040

email: agrodnercase@gmail.com

           

No. 17-813                                                                             DISTRICT 3-A

NORTH CAROLINA COURT OF APPEALS

*******************************

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

*******************************

Defendant-Appellant Amended Reply Brief in COA17-570                                                  ...................................................................... Appendix page 1

---

[1] Appellee cites this case, yet he argues on pages 11-22 of his brief that “discretion” is what determines the extent of a child custody judge’s jurisdiction.