Appeals cases: http://grodnerdivorce.blogspot.com/p/appeals-cases.html
=============================
No.
__________ DISTRICT
3A
SUPREME COURT OF NORTH CAROLINA
* * * * * * * * * * * * * * * *
HUNTER F.
GRODNER, )
(now
Summerlin) )
Plaintiff-Appellee,
)
) FROM PITT COUNTY v. )
No. COA 17-570 ) No.
COA 17-813
ANDRZEJ
GRODNER )
(now
Andrew Grodner) )
Defendant-Appellant,
)
)
*********************************************
DEFENDANT-APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
UNDER N.C. GEN. STAT. § 7A-31(c)(2)
***********************************************
-
i -
INDEX
TABLE OF CASES AND AUTHORITIES ................. ii
FACTS
..............................................................................
2
REASONS WHY CERTIFICATION
SHOULD
ISSUE
................................................. 7
I. THE COURT OF APPEALS ERRED IN ISSUING AN
OPINION BY THE PANEL
WHICH, IN PREPARATION OF ITS
OPINION, KNOWINGLY AND WILLFULLY
ENGAGED IN CONDUCT PREJUDICIAL TO
THE ADMINISTRATION OF JUSTICE THAT
BROUGHT THE JUDICIAL OFFICE INTO
DISREPUT IN VIOLATION OF N.C.G.S. §
7A-
376.
.......................................................................
8
ISSUES TO BE BRIEFED ..........................................
18
CERTIFICATE OF
SERVICE....................................... 19
APPENDIX
Court
of Appeals Opinion .................................. App. 1
ii
-
TABLE OF CASES AND AUTHORITIES
Cases cited:
In
re Hill, 368 N.C. 410, 778 S.E.2d 64 (2015) ............. 17
Tompkins
v. Tompkins, 390 SE 2d 766 - NC:
Court of
Appeals (1990)............................................ 18
Statutes cited:
N.C.G.S. § 7A-31
................................................... 1, 8, 18
Rules:
R. App. Proc. 15(a)
........................................................... 1
No.
__________ DISTRICT
3A
SUPREME COURT OF NORTH CAROLINA
* * * * * * * * * * * * * * * *
HUNTER F.
GRODNER, )
(now
Summerlin) )
Plaintiff-Appellee,
)
) FROM PITT COUNTY v. )
No. COA 17-570 ) No.
COA 17-813
ANDRZEJ
GRODNER )
(now
Andrew Grodner) )
Defendant-Appellant,
)
)
*********************************************
DEFENDANT-APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
UNDER N.C. GEN. STAT. § 7A-31(c)(2)
***********************************************
TO THE HONORABLE SUPREME COURT OF
NORTH CAROLINA:
Defendant-Appellant,
Andrzej Grodner ("Defendant"), pursuant to R. App.
Proc. 15(a) and G.S. § 7A-31,
respectfully petitions the Supreme Court of North
Carolina that the Court certify for
discretionary review the Opinion of the Court of
Appeals dated 7 August 2018, in
consolidated cases No. COA17-570 and COA17-
813, a copy of which is attached
hereto, on the basis that, inter alia,
the cause involves legal principles of major significance to the jurisprudence
of the State.
Defendant
notes that this PETITION FOR DISCRETIONARY REVIEW
("PETITION") is filed in addition to the NOTICE OF APPEAL
BASED UPON
CONSTITUTIONAL QUESTION AND PETITION
FOR REVIEW OF
CONSTITUTIONAL ISSUE (filed 14
September 2018, "NOTICE"), not
in the alternative in the event the appeal is determined not to be of
right. In other words, both NOTICE
and this PETITION provide equally important, but independent reasons why this
Court should consider review of this case, and thus each should be ruled on
separately.
In
support of this PETITION, the Defendant shows the following:
FACTS
A child custody case was initiated
by the (now) ex-wife of DefendantAppellant on 25 February 2013. A final hearing
occurred on 25-26 August 2014 which resulted in 9 January 2015 Child Custody
and Support Order issued by the Pitt County District Court Judge Braddy. On 22
December 2015 DefendantAppellant filed Amended Motion for Reconsideration and
Relief under Rule 60 which was heard and in part denied on 14 December 2016. On
12 January 2017 Judge Braddy filed Order of Denial of Reconsideration and
Relief, following which the Defendant-Appellant filed Notice of Appeal on 10
February 2017. After multiple procedural steps regarding appeal the final step
occurred on 24 January 2018 when Defendant-Appellant filed his Amended Reply
Brief in each consolidated case, COA17-570 and COA17-813. At that time parties
were awaiting a ruling from the Court of Appeals.
Below is the timeline of the
following events which are relevant to this appeal with this Court.
•
On 3 July 2018 Court of Appeals issued Opinion in the case
("first
Opinion"), which included
majority opinion authored by Honorable
Chief Judge McGee and concurring
Opinion by Honorable Judge Murphy. In his concurring Opinion Honorable Judge
Murphy alleged that "Defendant has not presented any argument based on the
record or international law as to ownership of the passport by the Republic of
Poland and has not included the passport or a copy thereof in the record for
our independent review."
•
On 12 July 2018 Defendant-Appellant filed his Motion for
Rehearing en banc ("first en banc Motion"), in part arguing that
rehearing should be granted because Honorable Judge Murphy provided false
statement when he wrote that "Defendant (...) has not included the
passport or a copy thereof in the record for our independent review" since
"copies of both U.S. and Polish passports were included on page 50 of the
Record and they were cited on page 3
of the Defendant-Appellant's
Brief."
•
On 16 July 2018, following first en banc Motion, Honorable
Chief Judge McGee issued an Order to Stay the mandate of the first Opinion.
•
On 17 July 2018 Honorable Chief Judge McGee issued an Order
withdrawing first Opinion and an Order dismissing without prejudice
Defendant-Appellant's first en banc
Motion.
•
On 23 July 2018 Defendant-Appellant filed his Memorandum of
Additional Authority ("Memorandum") which provided Polish law in
support of the claim that Polish passport is the property of Republic of
Poland. Defendant-Appellant in part stated that "the reason for the
submission of additional authority is the statement in the concurring opinion
in this case [by Judge Murphy] (...): 'Defendant
has not presented any argument based on the record or international law as to
ownership of the passport by the Republic of Poland' "
•
On 26 July 2018 Jeffrey L. Miller, attorney for the
Plaintiff-Appellee ("Jeffrey L. Miller") filed Plaintiff-Appellee's
Objection, Motion to
Strike, and Response to Appellant's
Memorandum of Additional
Authority ("Motion to
Strike").
•
Sometime on or after 26 July 2018 but before 30 July 2018,
Court of Appeals set the date for Defendant-Appellant to respond to Jeffrey L.
Miller's Motion to Strike as of 8
August 2018.
•
On 7 August 2018, before ever receiving response from
DefendantAppellant and without ruling on Motion to Strike, or even
acknowledging additional authority presented in the Memorandum,
Court of Appeals issued second
Opinion in the case ("second
Opinion").
•
On 7 August 2018 Defendant-Appellant filed his Response to
Motion
to Strike.
•
On 8 August 2018, only after Defendant-Appellant filed his
Response to Motion to Strike, Court of Appeals "dismissed [Motion to
Strike] as moot" without ever considering merits.
•
On 14 August 2018 Defendant-Appellant filed Motion to
Withdraw an Opinion and Request to Prepare New One That Includes the Decision
on the Appealed Issue ("Motion to Withdraw an Opinion"), in part
stating that withdrawal is warranted pursuant to the Honorable Judge McGee's
Order from 17 July 2018 "because (i) Honorable Judge Murphy again provided
false statements," and because "(ii) there is an outstanding Motion
to be decided by this Court, (iii) this Court has not yet addressed the only
issue raised on appeal by Defendant-Appellant even though it was presented with
sufficient record and legal authority to do so."
•
On 21 August 2018, the last day that the Defendant-Appellant
could file Motion for Rehearing en banc, there was no ruling on Motion to
Withdraw an Opinion and there was no
response from Jeffrey L.
Miller.
•
On 21 August 2018, Defendant-Appellant filed his second
Motion for
Rehearing en banc ("second en
banc Motion") in part stating that "because both this Court and
Jeffrey L. Miller know their rights, know what they are doing, and their
silence is voluntary, by the maxim qui
tacet consentire videtur, they effectively
affirm Defendant-Appellant claims" in Motion to Withdraw an Opinion such
as, among other things, that Judge Murphy provided false statements in both
first and second Opinion.
•
On 23 August 2018 Honorable Chief Judge McGee issued an
Order to Stay the mandate of the second Opinion.
•
On 23 August 2018 Honorable Chief Judge McGee issued an
Order to dismiss Motion to Withdraw an Opinion, nine (9) days after it was
filed and two (2) days after the
deadline for Defendant-Appellant to file his second en banc Motion has passed.
•
On 24 August 2018 Defendant-Appellant filed Amended Motion
for Rehearing en banc ("amended second en banc Motion") arguing in
part that it was necessary because denying Motion to Withdraw an Opinion after
he filed his second en banc Motion invalidated second en banc Motion but it was
due to Honorable Chief Judge McGee's delay and completely out of
Defendant-Appellant's control so he had
the right to file it.
•
On 13 September 2018 Honorable Chief Judge McGee issued an
Order to deny second en banc Motion (filed 21 August 2018) and to dissolve the
stay of the mandate of the second Opinion.
•
On 13 September 2018 Honorable Chief Judge McGee issued an
Order to dismiss amended second en banc Motion (filed 23 August
2018).
REASONS WHY CERTIFICATION SHOULD
ISSUE
This decision of the Court of
Appeals raises issues of significance to the jurisprudence of the State. The issues addressed in this appeal affect
every party appealing their case with the North Carolina Court of Appeals. In
support hereof, Petition shows the following:
I. THE COURT OF APPEALS ERRED IN ISSUING AN
OPINION BY THE PANEL WHICH, IN PREPARATION OF ITS OPINION, KNOWINGLY AND
WILLFULLY ENGAGED IN CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE THAT
BROUGHT THE JUDICIAL OFFICE INTO DISREPUT IN VIOLATION OF N.C.G.S. § 7A-376.
When
the first Opinion in the case was issued on 3 July 2018 the panel of the Court
of Appeals had all the benefit of the doubt regarding any errors that may be
present. Defendant-Appellant had an obligation to point out any such errors and
he did so by filing his first en banc Motion on 12 July 2018. Even though the
panel admitted to errors by withdrawing the first Opinion (17 July 2018)
shortly after first en banc Motion, such as Honorable Judge Murphy providing at
least one false statement (later on Defendant-Appellant realized there were
more), no malice or intent to render miscarriage of justice could possibly be
inferred at that point.
Further, no judicial misconduct
could be determined until after the Court of
Appeals had the opportunity to
correct its errors and issue a new Opinion.
The
first indication of corrupt intent by
Honorable Chief Judge McGee was during her handling of the Memorandum filed
by Defendant-Appellant on 23 July 2018. In the Memorandum Defendant-Appellant
provided definitive Polish legal authority showing that Polish passport is
property of the Republic of Poland. Since it was the only relevant finding of
fact considered by Judge Murphy in his concurring Opinion, said legal authority
was absolutely central to the entire case.
Thus, when on 26 July 2018 Jeffrey
L. Miller filed his Motion to Strike of the said Memorandum, Honorable Chief
Judge McGee allowed it to be considered and thus validated the relevance of the
legal authority provided. Certainly Jeffrey L. Miller recognized the importance
of the legal authority since it was his only Motion in the entire post-Opinion
period of the proceedings (he never opposed neither of the three (3) en banc
Motions nor Motion to Withdraw an Opinion). Even though Defendant-Appellant
later showed that his Motion to Strike was without merit (for example, one of
his arguments was a bogus and unsupported claim that somehow Memorandum cannot
have an appendix), he never questioned that legal authority was relevant. He
just claimed that in his view it was untimely and improperly presented.
Honorable
Chief Judge McGee set the deadline for the Defendant-Appellant to respond to
Motion to Strike as 8 August 2018. However, even before she heard his argument
she decided to issue a new Opinion on 7 August 2018 and "closed" the
case (the case was briefly marked as "closed" and then re-opened
after Defendant-Appellant's intervention with the Clerk). Then, as Defendant-Appellant
filed his response to Motion to Strike on 7 August 2018, a day later on 8
August 2018 she dismissed the Motion to Strike moot. First, it was improper not
to rule on the outstanding Motion to Strike since it was central to the entire
case. Second, it was improper to dismiss it as moot since the issue of legal
authority provided by Defendant-Appellant was not settled and is not yet
settled. In fact, Memorandum and possibly another Motion to Strike must be
considered in any future proceedings to determine the issue of jurisdiction of
the Polish passport. Third, there was absolutely no mention of the Memorandum
in the second Opinion which the Court of Appeals was required to do. Given that
second Opinion was verbatim first Opinion except for one deleted sentence, Honorable
Chief Judge McGee basically ignored provided legal authority that she was
clearly familiar with (she acknowledged it by giving Defendant-Appellant until
8 August 2018 to respond to Motion to Strike), and pretended that it does not
exist. That was an intentional
dereliction of Honorable Chief Judge McGee's duties which she set for
herself by requesting a Defendant-Appellant to file a response to Motion to
Strike.
The
next act that left no doubt as to the corrupt
intent by Honorable Chief Judge McGee was the issuance of the second
Opinion which revealed the reason to withdraw the first Opinion - it was to
allow Honorable Judge Murphy to provide more false statements. The first and
second Opinions were only different by a single sentence in Honorable Judge
Murphy's concurring Opinion where he initially wrote that "Defendant (...)
has not included the passport or a copy thereof in the record for our
independent review." Not only that sentence was deleted from in the second
Opinion instead of being corrected to acknowledge that the copy of the Polish
passport was indeed present in the Record on page 50 (the only possible
correction if it was an honest error), but Honorable Judge Murphy knowingly and
willfully did not review a copy of Polish passport.
Thus,
the "errors" in the first Opinion were not errors at all but rather
intentional misrepresentations by the entire panel for the purpose to knowingly
and willfully render miscarriage of justice and Honorable Chief Judge McGee
knew about it and actively promoted it. In essence, Honorable Judge Murphy correctly recognized an issue on appeal as
jurisdictional error and he agreed with the Defendant-Appellant's argument but
yet, even having all the required documents in record and all the necessary
legal authority that he indicated he needed to issue a ruling, he found corrupt
ways to not to rule on it.
At
that time Honorable Chief Judge McGee knew that Honorable Judge Murphy used
corrupt ways not to rule on the issue on appeal but she helped him accomplish
that by allowing issuance of the second Opinion. When it came to copy of the
Polish passport Honorable Judge Murphy chose omission even though in the first
Opinion it was essential for him to review it. When it came to legal authority
he provided false statement that "Defendant has not presented any argument
based on the record or international law" even though he was aware of the
legal authority provided in the Memorandum where even Jeffrey L. Miller did not
question its validity in his Motion to Strike. In addition, the issuance of the
second Opinion was in violation of her own precedent (created by her 17 July
2018 Order withdrawing the first Opinion) which was the law of the case stating
that if Honorable Judge Murphy provides false statements then the Opinion must
be withdrawn.
In
a third act indicating corrupt intent by
Honorable Chief Judge McGee, she used her privileged position to act in a
way prejudicial to the DefendantAppellant. When he filed his Motion to Withdraw
an Opinion and made the panel aware that the errors from the first Opinion were
aggravated in the second Opinion, especially including further and more severe
false statements by Honorable Judge Murphy, she intentionally delayed ruling on
said Motion until after the deadline for the Defendant-Appellant to file his
second en banc Motion. When he filed his second en banc Motion then she
suddenly ruled on Motion to Withdraw an
Opinion knowing fully well that it
will invalidate his second en banc Motion. When he was forced to file an
amended second en banc Motion then she dismissed it and ruled on the second en
banc Motion which she invalidated by her own prior actions.
It
is notable that the Orders regarding second en banc Motion and amended second
en banc motion were filed on 13 September 2018, which was the last day before
the entire judicial branch in eastern North Carolina was shut down due to the
hurricane Florence. Given that the Orders lifted the stay of the mandate and
started the short clock (15 days) for Defendant-Appellant to file his NOTICE
and PETITION with the North Carolina Supreme Court, Defendant-Appellant submits
that the Honorable Chief Judge McGee did it intentionally to prejudice the
Defendant-Appellant because she had another 10 days before the deadline of 30 days
would arrive. It was only because Defendant-Appellant was fully anticipating
such a corrupt act from Honorable Chief Judge McGee (there were no other since
after the issuance of the first Opinion), he actually worked on the NOTICE
beforehand and was able to file and serve it the next day.
Therefore,
at the time the mandate was in effect there was no doubt as to the intentions of the panel which was to
knowingly and willfully render miscarriage of justice by committing judicial
misconduct if necessary. The false statements, intentional
misrepresentations as well as judicial misconduct by the panel members has been
detailed in Motion to Withdraw an Opinion, second en banc Motion, and amended
second en banc Motion. None of the facts and conclusions were ever disputed by
Jeffrey L. Miller and he never filed any response to any of those Motions. None
of the Defendant-Appellant's contentions were ever overruled by the panel even
though both Honorable Chief Judge McGee and Honorable Judge Murphy were accused
by name of specific judicial misconduct for the purpose of intentional
miscarriage of justice. The only response from the Court of Appeals was either
denial of relief or dismissal of aforementioned Motions without providing any
argument.
Therefore,
because all the Judges of the Court of Appeals (which reviewed all en banc
Motions) and Jeffrey L. Miller know their rights, know what they are doing, and
their silence is voluntary, by the maxim qui
tacet consentire videtur, they
effectively affirmed the following facts regarding second Opinion:
•
Honorable Judge Murphy agreed with the Defendant-Appellant's
argument by stating that "while not
artfully argued by the pro se Defendant, if the passport issued by the Republic
of Poland is in fact the property of a foreign sovereign nation, then the
Foreign Sovereign Immunities Act, 28 U.S.C. § 1604, would bar our exercise of
jurisdiction". However, he still chose to ignore Record and legal
authority supporting the finding that indeed passport issued by the Republic of
Poland is property of a foreign sovereign nation;
•
Honorable Judge Murphy intentionally provided multiple false
statements of material fact;
•
Honorable Judge Murphy misrepresented the majority's
Opinion;
•
Honorable Chief Judge McGee ruled against her own precedent
to willfully promote Honorable Judge Murphy's false statements and
misrepresentations;
•
Honorable Chief Judge McGee never ruled on an outstanding
Motion to Strike and incorrectly labeled it as "dismissed as moot"
even though the controversy is still outstanding (whether the legal authority
in the form of the Polish law is sufficient to show that Polish passport is the
property of the
Republic of Poland - the most
central finding in the entire case per
Honorable Judge Murphy's concurring
Opinion);
•
Honorable Chief Judge McGee denied Motion to Withdraw an
Opinion only after it was brought to the attention of all the other Judges on
Court of Appeals via second en banc Motion for the purpose of invalidating
second en banc Motion. In fact, that is EXACTLY what she did, just as
DefendantAppellant predicted in his amended second en banc Motion: she denied
second en banc Motion which she invalidated by her prior actions, and then she
dismissed amended second en banc Motion which she should have ruled on;
•
The majority Opinion provided misrepresentations regarding
the issues on appeal as well as Defendant-Appellant's positions, where the most
consequential one was to wrongly infer that when Defendant-Appellant, Jeffrey
L. Miller, and Honorable District Court Judge Braddy all used the word
"jurisdiction" then they all meant something other than jurisdiction.
•
The second Opinion ignored newly raised issue [a case of
first impression] and left it unresolved, thus the Court of Appeals wrongly
issued an
"unpublished"
opinion whereas it should have been "published" one.
One
may question whether actions by the panel were really intended to knowingly and willfully render
miscarriage of justice by committing judicial misconduct and consider the
alternative view that these were just honest mistakes. However, by doing so one
would have to question panel's intelligence and professionalism. Did Honorable
Chief Judge McGee forget that there is an outstanding Motion to Strike when she
issued second Opinion and then she was ignorant to classify it as moot even
though it was not settled? Did Honorable Judge Murphy forget that he needed copy
of the Polish passport to issue his ruling and then he did not realize that the
Memorandum provided the answers he was seeking? Did the majority Opinion Judges
on the panel deluded themselves to believe that they have psychic powers and
can read the minds of the Honorable Judge Braddy, Jeffrey L. Miller, and
Defendant-Appellant's, all of whom used the word "jurisdiction" to
mean jurisdiction but the panel concluded otherwise? Frankly, it is less
damning to actually assume that the Judges on the panel committed judicial
misconduct because otherwise one has to conclude they are absolutely
incompetent and cannot perform their duties.
Under
the attending circumstances the Defendant-Appellant submits that the Court of
Appeals made an error by filing second Opinion with full knowledge of the
deficiencies listed above. Especially troubling is the fact that most of the
deficiencies are the result of willful misconduct prejudicial to the administration
of justice by Honorable Chief Judge McGee and Honorable Judge Murphy. Thus, by not correcting the second Opinion
the Court of Appeals put the entire appellate system of North Carolina in
disrepute.
Moreover,
the second Opinion undermined the
integrity of the judiciary
which relies on the Court of Appeals
to fulfill its constitutional duty as the authority that sets laws in North
Carolina by interpreting N.C.G.S. and providing precedents when new issues, not
included in N.C.G.S., have occurred. In this case new issues have been raised
[a case of first impression], namely: whether family Court of North Carolina
has jurisdiction over parent's Polish and U.S. passport(s), and yet the second
Opinion does not address them and thus leaves those issues unresolved.
Even
though Defendant-Appellant cannot locate in North Carolina a case remotely
related to what has occurred in the present situation (all of the misconduct of
Judges affecting the ruling happened at lower divisions, such as In re Hill, 368 N.C. 410, 778 S.E.2d 64
(2015)), (which if true should be
regarded as a very positive non-finding), he submits that it is one of those "rare
circumstances where the error is so
pronounced upon the face of the record that sound principles of jurisprudence should not permit it to be ignored by this
Court." [emphasis added] (Tompkins v. Tompkins, 390 SE 2d 766 - NC:
Court of Appeals
1990).
ISSUES TO BE BRIEFED
In
the event the Court allows this Petition for Discretionary Review, the Defendant
intends to present the following issues in its Brief for review: The
Court of Appeals erred in issuing an Opinion by the panel which, in preparation
of its Opinion, knowingly and willfully engaged in a conduct prejudicial to the
administration of justice that brought the judicial office into
disreput in
violation of N.C.G.S. § 7A-376.
Respectfully
submitted, this the 27th day of September, 2018.
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_________/s/______________
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For
Defendant-Appellant
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Andrzej Grodner, pro se
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(currently Andrew Grodner)
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P.O. Box 3571
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Greenville,
NC 27836
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Tel.
(252) 558-3040
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agrodnercase@gmail.com
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CERTIFICATE OF SERVICE
This
is to certify that the undersigned has this day, the 27th day of September,
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
Miller and Audino, LLP
2510 E. 10th Street
Greenville,
NC 27858 Tel. (252) 493-6138 email: jeff@milleraudino.com
Attorney for Plaintiffs-Appellee,
Hunter Summerlin
This is 27th day of September, 2018.
_________/s/_____________
Andrzej
Grodner, pro se
(currently
Andrew Grodner)
P.O.
Box 3571
Greenville,
NC 27836 Tel.
(252) 558-3040
agrodnercase@gmail.com
No.
__________ DISTRICT
3A
SUPREME
COURT OF NORTH CAROLINA
* * * * * * * * * * * * * * * *
HUNTER F.
GRODNER, )
(now
Summerlin) )
Plaintiff-Appellee,
)
) FROM PITT COUNTY v. )
No. COA 17-570 ) No.
COA 17-813
ANDRZEJ
GRODNER )
(now
Andrew Grodner) )
Defendant-Appellant,
)
)
*******************************
INDEX TO APPENDIX
*******************************
Court of Appeals Opinion
............................................. App. 1
An
unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is
disfavored, but may be permitted in accordance with the provisions of Rule
30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF
APPEALS OF NORTH CAROLINA
No. COA17-570
No. COA17-813
Filed: 7 August
2018
Pitt County,
No. 13-CVD-398
HUNTER F.
GRODNER, Plaintiff,
v.
ANDRZEJ
GRODNER, Defendant.
Appeal by
Defendant from orders entered 12 January 2017 and 5 June 2017 by Judge G. Galen
Braddy in District Court, Pitt County.
Heard in the Court of Appeals 5 March 2018.
Jeffrey L. Miller for
Plaintiff-Appellee.
Andrzej Grodner (now Andrew Grodner),
pro se, for Defendant-Appellant.
McGEE, Chief
Judge.
Andrzej Grodner
(“Defendant”) appeals from order entered 12 January 2017 denying Defendant’s
motion for reconsideration and relief from a 9 January 2015 child custody and
support order. Defendant also appeals
from order entered 5 June 2017 staying further proceedings in the trial court
pending disposition of Defendant’s
appeal from the
12 January 2017 order. The appeals were
consolidated for hearing before this Court.
For the reasons discussed below, we affirm the trial court’s 12
January 2017
order denying Defendant relief from the child custody and support order, and we
dismiss Defendant’s appeal from the 5 June 2017 entry of stay.
I.
Factual and Procedural Background
Defendant, a Polish-born American citizen, and
Hunter Grodner (“Plaintiff”) were married in June 2010. Plaintiff and Defendant
(collectively, “the parties”) have one minor child (“the child”), born 3 August
2011. The parties separated in February
2013 and were
divorced by judgment entered on or about 15 May 2014.
Plaintiff filed a complaint on or about 25
February 2013 requesting custody of the child, child support, post-separation
support, alimony, equitable distribution, and attorney’s fees from
Defendant. Following a hearing on 25-26
August 2014, the trial court entered an order (“the custody order”) on 9
January 2015 that awarded primary physical custody of the child to Plaintiff,
with the parties having joint legal custody. The trial court also established
the parties’ visitation schedule and Defendant’s child support obligations. The
trial court included the following provision in the decretal portion of the
custody order:
[] [D]efendant
shall not seek nor shall he be permitted to have any passport for the minor
child. [] [P]laintiff is the parent and
party who shall have the sole authority and decision-making with regard to any
applications for a passport for the minor child, and in the event a passport is
issued to or for the child, [Plaintiff] shall have the exclusive authority with
regard to all matters concerning the passport and any foreign travel by the
child. At no time
- 2 -
shall []
[D]efendant remove the minor child from the continental United States except
with the express written authority of this [c]ourt. [] [D]efendant shall surrender his
passport(s) to the [c]lerk and [Defendant] will have to make an application to
this [c]ourt in the event he has any travel plans that require a passport.
Defendant did not appeal the custody order,
but Defendant’s counsel filed a motion on 30 January 2015 seeking
“reconsideration and relief [from] that portion of
[the custody
order] . . . grant[ing] the parties joint legal custody of the [] child with []
Plaintiff having the final decision-making authority.” Nearly one year later, on 22 December 2015,
Defendant filed a pro se “Amended
Motion for Reconsideration and Relief” (“Rule 60 motion”) seeking
“reconsideration and relief of portions of [the
custody order]
. . . regarding clerical errors in (1) awarding Plaintiff[] final
decisionmaking authority, (2) surrendering Defendant’s U.S. and Polish
passports, (3)
Plaintiff’s
claim for attorney[’s] fees, (4) [c]hild [s]upport payment, [and] (5) various
[f]indings of [f]act.” Defendant asserted two bases for relief
from the passport restrictions that were included in the 9 January 2015 custody
order. Defendant first argued Plaintiff
never “made any request regarding Defendant’s passports[,]” and that the first
draft of the custody order “did not include any provisions regarding
Defendant’s
passports.” Defendant contended his own
attorney subsequently “requested inclusion of [the] provisions regarding
Defendant’s passports[,]” without Defendant’s knowledge or consent. Defendant argued that, pursuant to N.C. Gen.
Stat. § 1A-1,
Rule 60(b)(1), counsel’s request, and the ultimate entry of an order
- 3 -
containing the passport
restrictions, “constitute[d] excusable neglect because
[counsel] did
not let [Defendant] provide any input into [counsel’s] comments submitted to
[the trial court].” Defendant has not raised this issue on
appeal. See N.C.R. App. P. 28(b)(6) (providing in part that “[i]ssues not
presented in a party’s
brief, or in
support of which no reason or argument is stated, will be taken as
abandoned.”).
Defendant also
argued in his Rule 60 motion that the trial court’s requirement that he
surrender his passports and thereafter apply to the court for their return
constituted “an error based on lack of jurisdiction over subject matter because
state courts can neither hold U.S. passports nor decide when they are released
to an individual” and, further, the “[c]ourt [lacked] the authority to order
surrender of
[Defendant’s]
Polish passport[.]” Defendant contended
he was entitled to relief from the passport restrictions “pursuant to [N.C.
Gen. Stat. § 1A-1,] . . . Rule 60(b)(4) related to void [judgments] due to lack
of jurisdiction over subject matter.”
At a 14 December 2016 hearing on
Defendant’s Rule 60 motion, Defendant
addressed the
passport restrictions as follows:
So the second
issue I want to raise is the [] [custody] order issued on January 9th, 201[5],
. . . has a provision to . . . request [] [D]efendant to have his passport in
[the] custody of the . . . courts. And
the argument here is that, under
Rule 60, . . . 60[(b)(4)], this is
where it’s applicable . . . that,
‘Local court
does not have [] jurisdiction over any passports. The local court can request’ . . . it’s [an]
agency that issues a passport to take away, but it doesn’t have the
- 4 -
right to actually hold it. And that’s what has happened
[here], which
means that the [trial] court did not have jurisdiction to do this. So the relief sought here is to stricken
[sic] it from the . . . order because it’s an error in jurisdiction. . . . [The] local court did not have
jurisdiction to rule upon not only [an] American passport which is . . . a
federal [] document, . . . governed by the [] State Department, and [a] Polish
passport, which is actually property of Poland[.]
Defendant
further asserted “there was not a single finding[] of fact in the [custody]
order related to [Defendant’s] individual passport[s]. . . [or] related to the
child’s passport.” Defendant
submit[ted] . .
. that the [trial] [c]ourt [did not] have [] jurisdiction over [Defendant’s]
individual passport, only [the] child’s passport[,] because with the child
custody hearing, it was not [a] hearing about . . . [] [D]efendant. So, by this virtue, there was no jurisdiction
. . . that the [trial] [c]ourt could rule upon this.
Plaintiff’s
counsel argued the passport restrictions were “reasonable, rational limits”
that the trial court had authority to impose in order to “prevent [Defendant]
from using [his] passports to travel with the child [outside the United
States].” Counsel further argued that, even if the
passport restrictions in the custody order reflected errors of law, Defendant
was required to appeal the order rather than seek relief under Rule 60. After hearing arguments from the parties
related to Defendant’s passports, the trial court stated:
I feel and am
confident that the [passport] provisions I put in [the custody order] were
warranted under existing law. [] [A]nd
so, I am going to continue to allow [Defendant]
- 5 -
access to use
his passports personally, [] as long as it’s [] through the application and made
[] for his personal travel, just so it does not apply to the child traveling
with him.
At the
conclusion of the hearing, the trial court indicated it would correct certain
clerical errors in the custody order but would deny Defendant’s motion for reconsideration
and relief with respect to “the remaining . . . grounds under Rule 60,”
including the restrictions on Defendant’s passports.
Prior to the
entry of the trial court’s order denying Defendant’s Rule 60 motion, Defendant
filed an “Application for Passport” on 22 December 2016, stating that “pursuant
to [the] [c]hild [c]ustody [o]rder from January 9, 2015, [Defendant] [was
applying] to [the] [c]ourt for [the] return of his passports because he
plan[ned] to travel to Poland in [the] year 2017.”
The trial
court’s order denying Defendant’s Rule 60 motion was entered on 12 January
2017. The trial court’s findings of fact
included the following finding regarding Defendant’s claim for relief from the
passport restrictions in the custody order:
[D]efendant’s
second claim for relief seeks to address [the trial] [c]ourt’s [o]rder imposing
limitations on [] [D]efendant’s passports, requiring him to deposit them with
the [c]lerk and to apply to [the trial] [c]ourt in the event he planned some
travel which required he have access to and use of [the passports]. Defendant has Polish citizenship and he is
originally from Poland. He is now
apparently a citizen of [the United States].
His mother is a Polish resident and citizen. [] [D]efendant engaged in secretive and
concerning behaviors involving untrue
- 6 -
statements to
[P]laintiff about his travel and about his mother. The evidence gave rise to a legitimate
concern with regard to [D]efendant’s activities and intentions with regard to
the minor child and his travel with the child.
Defendant did not appeal the [custody] [o]rder. He now appears to assert the evidence was
insufficient at trial and that [the trial] [c]ourt committed legal error in its
[custody]
[o]rder
regarding the limitations imposed on his use of his passports. The [trial] [c]ourt finds [Defendant’s]
arguments are without merit, and the argument concerns issues that are not
properly subject to Rule 60 review.
There was no excusable neglect with regard to the entry of the passport
restrictions. [The trial] [c]ourt had
subject matter jurisdiction and authority to protect and preserve the best
interest of the minor child by orders that assured the child was not abducted
or kidnapped and removed from this country by [D]efendant or his mother who had
Polish connections and who had engaged in concerning behaviors. The [custody] [o]rder is not void. Defendant did not appeal the [custody order],
and he has delayed almost one year in raising the issue [of the passport
restrictions]. The [Rule 60] motion has not
been made within a reasonable time, and it raises a matter that [D]efendant
should have appealed if he desired to have reconsideration or relief. [] [D]efendant’s second claim for relief is
without merit and should be denied.
Defendant filed
a notice of appeal from the 12 January 2017 order on 10 February 2017, at which
time Defendant’s “Application for Passport” was still pending.
In Defendant’s appeal from the
denial of his Rule 60 motion, his proposed
issues on
appeal included the following issues related specifically to the passport
restrictions:
10.
The [trial]
[c]ourt erred in asserting that it ha[d] jurisdiction to impose any limitations
on [Defendant’s] [U.S.] passport, such as to order him to surrender it to the
- 7 -
[c]lerk of
[c]ourt, because [a] [U.S.] passport is property issued by the federal
government which has exclusive regulatory authority over it and therefore that
portion of the order is void ab initio.
11.
The [trial]
[c]ourt erred in asserting that the issue of [a] [U.S.] passport is not subject
to Rule 60 because Rule 60(4) [sic] specifically allows [a party] to ask for
relief from judg[]ment if the judg[]ment is void and it is indeed void in this
case since [the trial] [c]ourt lacks jurisdiction to rule on [] Defendant’s
[U.S.] passport.
12.
The [trial]
[c]ourt erred in upholding limitations on Defendant’s [U.S.] passport because
it violates the Supremacy Clause of [the] United States Constitution by
invading the province of the [U.S.] [g]overnment by taking property that can
only be issued by the [U.S.] [g]overnment (Defendant’s passport) and where only
[the] [U.S.]
[g]overnment
has exclusive regulatory authority over it.
13.
The [trial]
[c]ourt erred in asserting that it ha[d] jurisdiction to impose any limitations
on [] Defendant’s
Polish
passport, such as to order him to surrender it to the [c]lerk of [c]ourt,
because [a] Polish passport is issued by [the] [g]overnment of Poland and the
[g]overnment of Poland has exclusive authority over it, and the [trial court]
has not done its due diligence by neither recognizing, nor even attempting to
address U.S. Code Title 28, Part IV, Chapter 97, § 1605 [entitled] “General
exceptions to the jurisdictional immunity of [a] foreign state” which regulate
jurisdictional issues related to [a] foreign state.
14.
The [trial]
[c]ourt erred in asserting that the issue of [Defendant’s] Polish passport is
not subject to Rule 60 because Rule 60[b](4) specifically allows [a party]to
ask for relief from [a] judg[]ment if the judg[]ment is void and it is indeed
void in this case since [the trial] [c]ourt lack[ed] jurisdiction to rule on []
Defendant’s Polish passport.
15.
The [trial]
[c]ourt erred in upholding limitations on
- 8 -
Defendant’s
passports because there is not a single finding of fact nor conclusion of law
in the child custody order or in the order denying reconsideration of the child
custody order, and there is nothing in the record in any proceeding in this
cause related to the best interest of the minor child that would support [the]
imposition of any limitations on Defendant’s passports.
16.
The [trial]
[c]ourt erred in upholding limitations on Defendant’s passports because such
limitations violate the due process clauses and equal protection provisions of
both the United States and North Carolina Constitutions, and both the federal
and North Carolina laws prohibiting discrimination based [on] national origin
since the only justification for [the trial] [c]ourt’s ruling was that []
Defendant is
[a] Polish-born naturalized U.S. citizen whose parents are Polish nationals,
and who in [the trial] [c]ourt’s view had engaged in concerning behaviors.
17.
The [trial]
[c]ourt erred in determining that Defendant’s arguments regarding jurisdiction
[over] Defendant’s passport[s] lack merit because the [c]ourt did not provide
any statute or case law to support[] its own position and thus it could not
compare Defendant’s argument to any alternative argument and thus determine
whether his argument has merit or not.
18.
The [trial]
[c]ourt erred in determining that there [was] no excusable neglect with regard
to the entry of the passport restrictions because the [c]ourt did not deny that
Defendant’s own attorney at the time of drafting and entering of the child
custody order was the primary reason why those provisions [appeared] in the
final version of the custody order against the wishes of [] Defendant.
Plaintiff’s counsel filed a motion on 11 April
2017 arguing the trial court lacked subject matter jurisdiction to consider
Defendant’s passport application in light of
Defendant’s pending appeal from the
order denying his Rule 60 motion.
Plaintiff
- 9 -
contended that Defendant’s proposed
issues on appeal “assert[ed] constitutional
issues
regarding the denial of his [Rule 60 motion] as concerns [] his passport[s][,]
. . . thereby purporting to create issues affecting a substantial right.” Plaintiff
also argued that Defendant’s appeal from the denial of his Rule 60 motion
“divested [the trial court] of jurisdiction” to hear and determine the matter
of Defendant’s passport application.
Plaintiff asked the trial court to stay any further proceedings “pending
a mandate from [this Court]” in Defendant’s appeal from the order denying his
Rule
60 motion.
The trial court
held a hearing on 19 April 2017 regarding Defendant’s passport application and
a separate motion filed by Defendant
seeking access to certain sealed medical records. After hearing arguments of counsel, the trial
court concluded
Defendant’s
passport application raised “issues . . . [that were] directly addressed by
[Defendant’s] appeal [from the order denying his Rule 60 motion][,]” and that
the court “[did not] have the power to rule on [the passport matter] until [the
Court of Appeals] issue[d] a decision or otherwise let go of [Defendant’s]
appeal.”
The trial court entered an order on 5 June 2017 stating it was
“without authority and jurisdiction to hear and determine [D]efendant’s pending
[m]otion[] related to his passport[s]” and staying “any determination by [the
trial] [c]ourt” pending disposition of Defendant’s outstanding appeal. Defendant appeals.
II. Defendant’s
Rule 60 Motion
(COA No.17-570)
- 10 -
A.
Standard of Review
A Rule
60(b) motion “is addressed to the sound discretion of the trial court, and
will be
disturbed on appeal only upon a showing of an abuse of discretion. The trial court’s findings of fact are
conclusive on appeal if there is any competent evidence in the record to
support them.” Brown v. Cavit Sciences, Inc., 230 N.C. App. 460, 463, 749 S.E.2d
904, 907 (2013) (citation omitted). “An
abuse of discretion occurs when the trial court’s ruling is so arbitrary that
it could not have been the result of a reasoned decision.” Chicora
Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d
797, 802 (1997) (citation and internal quotation marks omitted).
B.
Analysis
In
his Rule 60 motion, filed 22 December 2015, Defendant sought
“reconsideration
and relief of portions of [the trial court’s] [9 January 2015 custody order] regarding clerical errors in (1)
awarding Plaintiff[] final decision-making authority, (2) surrendering
Defendant’s U.S. and Polish passports, (3) Plaintiff’s claim for attorney[’s]
fees, (4) [c]hild [s]upport payment, [and] (5) various [f]indings of [f]act.”
(emphasis added). On appeal, Defendant challenges the trial
court’s denial
of relief from
provisions in the custody order related to his passports only.
In denying Defendant’s Rule 60
motion, the trial court found that “[m]uch of []
[D]efendant’s
motion [sought] to use Rule 60 for relief that should have been sought
- 11 -
by appellate
review and which is not appropriate for Rule 60 relief.” With respect to the
passport restrictions, the trial court further found:
[D]efendant’s
second claim for relief seeks to address [the trial] [c]ourt’s [o]rder imposing
limitations on [] [D]efendant’s passports, requiring him to deposit them with
the [c]lerk and to apply to [the trial] [c]ourt in the event he planned some
travel which required [that] he have access to and use of [the passports]. . . . .
[] [D]efendant engaged in secretive and concerning behaviors involving
untrue statements to [P]laintiff about his travel . . . [.] The evidence gave rise to a legitimate
concern with regard to [D]efendant’s activities and intentions with regard to .
. .
his travel with
the child. Defendant did not appeal the
[custody] [o]rder. He now appears to
assert . . . this [c]ourt committed legal error in its [o]rder regarding the
limitations imposed on his use of his passports. The [c]ourt finds his arguments are without
merit, and the argument concerns issues that are not properly subject to Rule
60 review. There was no excusable
neglect with regard to the entry of the passport restrictions. This [c]ourt had subject matter jurisdiction
and authority to protect and preserve the best interest of the minor child by
orders that assured the child was not abducted or kidnapped and removed from
this country by [D]efendant . . . who had Polish connections and who had
engaged in concerning behaviors. The
[o]rder is not void. Defendant did not
appeal the ruling, and he has delayed almost one year in raising the
issue. The [Rule 60] motion has not been
made within a reasonable time, and it raises a matter that [D]efendant should
have appealed if he desired to have reconsideration or relief. [] [D]efendant’s [] claim for relief is
without merit and should be denied.
On appeal,
Defendant makes various arguments regarding the passport restrictions in the
custody order and the trial court’s authority to impose the restrictions and
order Defendant to surrender his passports.
Defendant contends the
- 12 -
restrictions violated
his constitutional right to travel; violated state and federal law; exceeded
the statutory authority of the trial court in making child custody
determinations; and deprived Defendant of certain due process rights. As noted above, however, the only bases for
relief from the passport restrictions asserted in Defendant’s Rule 60 motion
were (1) excusable neglect, pursuant to Rule 60(b)(1); and
(2) voidness,
pursuant to Rule 60(b)(4).
N.C. Gen. Stat.
§ 1A-1, Rule 60(b)(4) (2017) provides:
“On motion and upon such terms as are just, the [trial] court may
relieve a party . . . from a final judgment, order, or proceeding [if] . .
.[t]he judgment is void[.]” “[A] Rule
60(b)(4) motion is only proper where a judgment is ‘void’ as that term is
defined by the law.” Barton v.
Sutton, 152 N.C. App. 706, 708, 568 S.E.2d
264, 265 (2002) (citation and quotation marks omitted).
Our case law
makes clear . . . that [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 ha[d] no
jurisdiction over the parties or subject matter in question or ha[d] no
authority to render the judgment entered.
State v. Santifort, ___ N.C. App. ___, ___, 809 S.E.2d
213, 219 (2017) (citation and internal quotation marks omitted) (emphasis
added); see also Windham Dist. Co. v.
Davis, 72 N.C. App. 179, 181, 323 S.E.2d 506, 508 (1984) (“An erroneous
judgment is
one rendered
according to the course and practice of the court but contrary to the law or
upon a mistaken view of the law. A void
judgment has semblance of a valid
- 13 -
judgment, but lacks some essential
element such as jurisdiction[.]” (citation omitted)).
It follows
that, in the present case, Defendant was entitled to relief from the passport
restrictions under Rule 60(b)(4) only if the trial court lacked jurisdiction
over the parties or subject matter or lacked authority to enter the custody
order. See Hillard
v. Hillard, 223 N.C. App. 20, 22, 733 S.E.2d
176, 178-79 (2012).
Here, although
Defendant cited Rule 60(b)(4) in the portion of his Rule 60 motion seeking
relief from the passport restrictions in the custody order, “[i]t is clear from
the wording of his motion that [he] was asserting [] error[s] of law . . . as
his basis for relief.” See Town of Sylva v. Gibson, 51 N.C.
App. 545, 548, 277 S.E.2d 115,
117
(1981). Specifically, Defendant argued
in his Rule 60 motion that (1) federal law “does not give authority to any
other entity [than the United States] Department of State to impose any
restrictions regarding [a] U.S. passport[;]” and (2) federal law required the
trial court to “demonstrate [an] appropriate exception to the general immunity
of [the] Polish state from the jurisdiction of United States courts” before
ordering Defendant to surrender his Polish passport.[1] “A motion pursuant to Rule 60 cannot be used
as a substitute for an appeal of the underlying order to correct errors of
law.” Morehead v. Wall, 224 N.C. App. 588, 592, 736 S.E.2d 798, 801
(2012)
(citation
omitted). Thus, to the extent
Defendant’s Rule 60 motion asserted errors of law in the custody order,
including with respect to the passport restrictions therein, the trial court properly
denied the motion. See Windham, 72 N.C. App. at 182, 323 S.E.2d at 509 (holding trial
court did not abuse its discretion in denying defendant’s Rule 60(b)(4) motion,
where defendant “confused what constitutes an erroneous
judgment with a
void one. To have obtained relief from
[the] alleged errors of law, the defendant should have appealed directly from
the . . . judgment. . . . Even if errors
of law could be found in the judgment, the judgment [was] not void because the
trial court had jurisdiction and the authority to enter it.”).
Whether a trial
court’s order contained errors of law is not the same question as whether the
trial court had authority to enter the order.
“Subject matter jurisdiction is the power to hear and determine cases of the general class to which the action in
question belongs.” Musarra v. Bock, 200 N.C. App. 780, 783,
684 S.E.2d 741, 744 (2009) (citation omitted) (emphasis added). “Subject matter jurisdiction . . . is
conferred upon the courts by either the North Carolina Constitution or by
statute.”
Mosler v. Druid Hills Land Co., 199 N.C. App. 293, 295, 681 S.E.2d
456, 458 (2009) (citations omitted) (alteration in original). “It is well-established that the issue of a
court’s jurisdiction over a matter may be raised at any time, even for the
first time on
appeal or by a
court sua sponte.” State
v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008).
- 15 -
In the present
case, Defendant does not appear to dispute that the trial court in fact had
jurisdiction over the parties and subject matter, or that the court was
authorized to enter a custody order. See also N.C. Gen. Stat. § 7A-244 (2017) (“The district court division
is the proper division without regard to the amount in
controversy,
for the trial of civil actions and proceedings for . . . child custody[.]”);
N.C. Gen. Stat. § 50-13.5(c)(2) (2017) (“The courts of this State shall have
jurisdiction to enter orders providing for the custody of a minor child under
the provisions of [N.C. Gen. Stat. §§] 50A-201, 50A-202, and 50A-204.”). Because the custody order was not void as a
matter of law, Defendant was not entitled to the relief available under Rule
60(b)(4). We therefore affirm the trial
court’s order denying Defendant’s motion for
relief.
III. Defendant’s
Passport Application
(COA No. 17-813)
Defendant also
appeals the portion of the trial court’s 5 June 2017 order finding that
Defendant’s appeal from the denial of his Rule 60 motion “divest[ed] [the]
[c]ourt of authority and subject matter jurisdiction to hear and determine []
[D]efendant’s pending [m]otion[] regarding his passport[s][.]”
Appealability
We must first determine whether
Defendant’s appeal is properly before this
Court. See,
e.g., Progress Energy Carolinas, Inc. v. Strickland, 181 N.C. App. 610,
612, 640 S.E.2d
856, 858 (2007). Plaintiff contends the 5 June 2017 order
was
- 16 -
interlocutory. We agree.
“An interlocutory order is one made during the pendency of an action,
which does not dispose of the case, but leaves it for further action by the
trial court in order to settle and determine the entire controversy.” Veazey
v. City of
Durham,
231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). In the present case, the 5 June 2017 order
staying further proceedings in the trial court was interlocutory because it was
“not a final determination of or resolution to the controversy.” See
Southern Uniform Rentals v. Iowa Nat’l Mutual Ins. Co., 90 N.C. App. 738,
740, 370
S.E.2d 76, 78
(1988). The order explicitly stayed “any determination by [the trial]
[c]ourt” regarding the return of
Defendant’s passports, “[p]ending a determination
[by this Court
of Defendant’s] appeal” from the order denying his Rule 60 motion. (emphasis
added).
Entry of the stay clearly “require[d] further action by the trial
court.” See Helms v. Griffin, 64 N.C. App. 189, 191, 306 S.E.2d 530, 532
(1983); see also Blackwelder v. Dept. of
Human Res., 60 N.C. App. 331, 333, 299 S.E.2d 777, 779 (1983) (“A ruling is
interlocutory in nature if it does not determine the issues but directs some
further proceeding preliminary to a final decree.”).
“Generally, there is no right to
appeal from an interlocutory order.” Flitt v.
Flitt, 149 N.C. App. 475, 477, 561 S.E.2d
511, 513 (2002) (citations omitted).
Nonetheless, in
two instances a party is permitted to
appeal interlocutory orders[.] First, a
party is permitted to appeal from an interlocutory order when the trial court
enters a final judgment as to one or more but fewer than all of the claims or
parties and the trial court certifies in the judgment that there is no just
reason to delay the
- 17 -
appeal. Second, a party is permitted to appeal from
an interlocutory order when the order deprives the appellant of a substantial
right which would be jeopardized absent a review prior to a final determination
on the merits. Under either of these two circumstances, it is the appellant’s burden
to present appropriate grounds for this Court’s acceptance of an interlocutory
appeal and our Court’s responsibility to review those grounds.
Jeffreys v. Raleigh Oaks Joint
Venture, 115 N.C. App.
377, 379, 444 S.E.2d 252, 253
(1994)
(citations and internal quotation marks omitted) (first emphasis in
original). “If a party attempts to
appeal from an interlocutory order without showing that the order in question
is immediately appealable, we are required to dismiss that party’s appeal on
jurisdictional grounds.” Hamilton v. Mortgage Information Services,
Inc., 212 N.C. App. 73, 77, 711 S.E.2d 185, 189 (2011) (citation omitted); see also Johnson v. Lucas, 168 N.C. App.
515, 518, 608 S.E.2d 336, 338 (2005) (“It is the appellant’s burden to present
appropriate grounds for this Court’s acceptance of an interlocutory
appeal, . . . and not the duty of this Court to construct
arguments for or find support for [an] appellant’s right to appeal[.]”
(citation and quotation marks omitted)
(alterations in
original) (emphasis added)).
In this case,
the trial court did not certify its 5 June 2017 order for immediate review
pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) (2017). The order is therefore reviewable only if
Defendant presented to this Court “sufficient facts and argument to support
appellate review on the ground that the challenged order affect[ed] a
substantial right.” Mosqueda v. Mosqueda, 218 N.C. App. 142, 146, 721 S.E.2d 755,
- 18 -
758 (2012)
(citation and quotation marks omitted); see
also Hanesbrands Inc. v. Fowler, 369 N.C. 216, 219, 794 S.E.2d 497, 499
(2016) (noting that “in appeals from
interlocutory
orders, the North Carolina Rules of Appellate Procedure require that the
appellant’s brief contain a statement of the grounds for appellate review,
which must allege sufficient facts and argument to support appellate review on
the ground that the challenged order affects a substantial right.” (citing
N.C.R. App. P. 28(b)(4) (internal quotation marks omitted)). Our Supreme Court has defined a “substantial
right” as “a legal right affecting or involving a matter of substance as
distinguished
from matters of
form[;] a right materially affecting those interests which a [person] is
entitled to have preserved and protected by law[;] a material right.” Sharpe
v.
Worland, 351 N.C. 159, 162, 522 S.E.2d 577,
579 (1999) (citation and quotation marks omitted). “Moreover, the determination of whether a
substantial right is involved in [an] appeal depends on whether that right is one
which will be lost or irremediably and adversely affected if the order is not
reviewed before final judgment.” Southern
Uniform Rentals, 90 N.C. App. at 740, 370 S.E.2d at
78 (citation omitted).
Defendant has
not argued that the trial court’s decision to stay further proceedings on his
passport application affected a substantial right. Defendant submits that this is “[not] a
typical interlocutory appeal because the custody [o]rder was final[.]”[2] Defendant further asserts that “the general
rule that appeals, even interlocutory appeals involving a substantial right,
work to deprive the trial court of jurisdiction, do[es] not apply [in this
case].” According to Defendant, his
appeal from the denial of his Rule 60 motion did not prevent the trial court
from determining whether to return his passports because his passport
application “[did] not embrace jurisdiction[,]” and “no decision by this Court
[in Defendant’s appeal from the denial
of his Rule 60
motion] could possibly be affected by [the trial court] hearing
[Defendant’s] application for the
return of his passports.” See
N.C. Gen. Stat. § 1-294
(2017) (providing in part that
“[w]hen an appeal is perfected as provided by this
Article it
stays all further proceedings in the court below upon the judgment appealed
from, or upon the matter embraced therein, . . . ; but the court below may proceed upon any other matter included in the
action and not affected by the judgment appealed from.” (emphasis added)).
Defendant’s
arguments are misplaced. His arguments
on appeal concern the merits of the trial court’s finding, in its 5 June 2017
order, that it was “without authority and jurisdiction to hear and determine
[D]efendant’s pending [m]otion[] related to his passport[s][.]” However, whether an order or judgment is
interlocutory and, if so, whether it affects a substantial right are
“jurisdictional threshold question[s].” See Pentecostal Pilgrims and Strangers Corp.
v. Connor, 202 N.C. App.
128, 128, 688
S.E.2d 81, 81 (2010); see also Duval v.
OM Hospitality, LLC, 186 N.C.
App. 390, 392,
651 S.E.2d 261, 263 (2007) (noting that “whether an appeal is
- 20 -
interlocutory
presents a jurisdictional issue, and this Court has an obligation to address
the issue sua sponte.” (citation,
quotation marks, and brackets omitted)). “It is well[-]established . . . that if
an appealing party has no right of appeal, an appellate court on its own motion
should dismiss the appeal.” Bailey v. Gooding, 301 N.C. 205, 208,
270 S.E.2d 431, 433 (1980) (citations omitted).
This Court has thus “decline[d] to address the propriety of [a] . . .
stay order[]” where the appealing party “ha[d] no right of appeal from that interlocutory
order.” See Danna v. Danna, 88 N.C. App.
680, 683, 364
S.E.2d 694, 696 (1988).
Even assuming arguendo that certain statements in
Defendant’s appellate brief could be construed as identifying a substantial
right – e.g., Defendant’s purported
“right to travel abroad” – an appellant “must present more than a bare
assertion that
[an] order affects a substantial right; [he] must demonstrate why the order affects a substantial
right.” Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274,
277-78, 679
S.E.2d 512, 516 (2009) (citation omitted) (emphasis in original); see also
Turner v. Norfolk Southern Corp., 137 N.C. App. 138, 142, 526 S.E.2d
666, 670 (2000) (“Our courts have generally taken a restrictive view of the
substantial right exception.”). Here,
Defendant’s passing references to his “constitutional right to [international]
travel” do not amount to an argument that the right “will clearly be lost or
irremediably adversely affected if the order is not reviewable before final
judgment.” Turner, 137 N.C. App. at 142, 526 S.E.2d at 670 (citation and
quotation
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marks
omitted). To the contrary, Defendant
argues that, “though true,” the claim that withholding Defendant’s passports
affected a substantial right “has nothing to do with [the trial court’s] []
conclusion that [it] lacked authority to [consider] the
application
[for the return of his passports].”
Again, Defendant challenges the substantive propriety of the 5 June 2017
order without first “identif[ying] a specific
‘material right’ that [he] would
lose if the order is not reviewed before final judgment
[or]
explain[ing] how the order . . . would ‘work injury’ to [him] if not
immediately reviewed.” Hanesbrands, 369 N.C. at 220, 794 S.E.2d
497, 500 (citation omitted).
Because
Defendant has failed to show why or how the trial court’s interlocutory order
“will work an injury to him if not corrected before an appeal from the final
[determination][,]” see Godley Auction
Co., Inc. v. Myers, 40 N.C. App. 570, 574, 253
S.E.2d 362, 365
(1979) (citation and quotation marks omitted), we dismiss
Defendant’s
appeal from the 5 June 2017 order staying a determination by the trial court on
Defendant’s application for the return of his passports.
IV.
Conclusion
The
trial court did not abuse its discretion in denying Defendant’s Rule 60
motion for
relief from the 9 January 2015 custody order on the basis that the custody
order was void. The trial court’s 5 June
2017 order staying further proceedings pending disposition of Defendant’s
existing appeal was interlocutory, and Defendant
has failed to
demonstrate the order affected a substantial right. Accordingly, we
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affirm the
trial court’s 12 January 2017 order denying Defendant’s Rule 60 motion and
dismiss Defendant’s appeal from the 5 June 2017 order entering a stay.
AFFIRMED IN
PART; DISMISSED IN PART.
Judge CALABRIA
concurs.
Judge MURPHY
concurs in COA17-570 in part and concurs in result only in part and concurs in
COA17-813, by separate opinion.
Report per Rule
30(e).
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An
unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is
disfavored, but may be permitted in accordance with the provisions of Rule
30(e)(3) of the North Carolina Rules of Appellate Procedure.
Nos. COA17-570
and 17-813 – Grodner v. Grodner
MURPHY, Judge,
concurs in part in 17-570 as it relates to the passports issued by the United
States of America and concurs in result only as it relates to the passports
issued by the Republic of Poland; and concurs in 17-813.
While not
artfully argued by the pro se Defendant,
if the passport issued by the Republic of Poland is in fact the property of a
foreign sovereign nation, then the Foreign Sovereign Immunities Act, 28 U.S.C.
§ 1604, would bar our exercise of
jurisdiction:
Subject to
existing international agreements to which the United States is a party at the
time of enactment of this Act a foreign state shall be immune from the
jurisdiction of the courts of the United States and of the States except as
provided in sections 1605 to 1607 of this chapter.
28 U.S.C. §
1604 (2012).
As held by the
United States Supreme Court, unless there is an exception created by Congress,
there is no jurisdiction in our state courts to exercise authority over the
property of a foreign sovereign nation. Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 489, 103 S. Ct. 1962, 1969 (1983). Congress has not created an exception which
would apply in this situation. 28 U.S.C.
§§ 1605 and 1607 (2012).
The desire of
the District Court to act when faced with the potential for a parent to flee
with a child is in the best interests of justice. However, exercising jurisdiction over the
property of a foreign sovereign nation is not within the
GRODNER
V.
GRODNER
MURPHY,
J., concurring in 17-570 in part as it relates to the passports issued by the
United States of America and concurring in result only as it relates to the
passports issued by the Republic of Poland; and concurring in 17-813.
jurisdiction of
state courts. The reasoning of Verlinden is sound and reflects the need for a unified federal voice
when dealing with matters of foreign policy, even if the interests of justice
and state policy would require otherwise.
While our
courts may not exercise jurisdiction over the property of a foreign sovereign
nation unless authorized by Congress or international agreement, Defendant has
not presented any argument based on the record or international law as to
ownership of the passport by the Republic of Poland. Based on the limited record and arguments
before us, “[I] would decline to upset the ruling of the trial court on this
record.” Sanchez v. Cobblestone Homeowners Ass’n of Clayton, Inc., ___ N.C.
___, ___, 811 S.E.2d 144, 144 (2018).
2
[1] Similarly,
at the hearing on his Rule 60 motion, Defendant argued the trial court lacked authority
(which Defendant referred to as “jurisdiction”) “to actually hold [his
passports] because an American passport “[is] a federal [] document governed by
the . . . State Department, and [a] Polish passport . . . is actually [the]
property of Poland[.]”
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