Kanellos v. Kanellos

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-416

Filed: 20 December 2016

Union County, No. 14 CVD 1703

STASIE KANELLOS, Plaintiff,

v.

IOANNIS JOHN KANELLOS, Defendant.

Appeal by Plaintiff from order entered 2 February 2016 by Judge Joseph

Williams in Union County District Court. Heard in the Court of Appeals 4 October

2016.

J. Clark Fischer for Plaintiff.

John T. Burns for Defendant.

STEPHENS, Judge.

Plaintiff appeals from an interlocutory order making an initial permanent

child custody determination, contending that the district court erred in ordering

Plaintiff and the parties’ children to move back to the county where the parties lived

before their separation, and to reside there in the former marital residence. We

vacate the challenged order to the extent it purports to compel Plaintiff to reside in a

specific county and house, because those matters fall outside the scope of authority

granted to the district court in a child custody action.

KANELLOS V. KANELLOS

Opinion of the Court

Factual and Procedural Background

On 1 July 2014, Plaintiff Stasie Kanellos filed a complaint for child custody,

child support, postseparation support, alimony, equitable distribution, and attorney’s

fees against Defendant Ioannis “John” Kanellos. The parties were married on 27

March 2007, and the union produced two children, a boy and a girl. On 25 June 2014,

John moved out of the residence. The child custody matter came on for hearing on 23

September 2015, in Union County District Court, the Honorable Joseph Williams,

Judge presiding. On 2 February 2016, the district court entered its child custody

order.

Before the marriage, John owned a restaurant in Monroe and a house located

at 8220 Sunset Hill Road in Waxhaw. Both towns are located in Union County.

Following their marriage in May 2007, the parties resided in the Sunset Hill Road

residence. Following the birth of her children, Stasie did not work outside of the

home, and, although Stasie’s mother would travel from her home in Lewisville to

assist with child care, attend doctor’s appointments, and clean the home, Stasie

provided “90% of the child care for the two children.” The evidence indicated that a

frequent daily routine was for John to arrive home after work, take a short nap, spend

one hour with the children, and then leave to go work out at the gym. Stasie also

regularly took the children to Lewisville for several days at a time. During the course

of the marriage, John was discovered to be having an extra-marital relationship, and,

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after first trying to repair the marriage though counseling, Stasie asked John to leave

the marital residence. The parties agreed that John could spend time with the

children on Wednesdays and alternating weekends, Fridays to Sundays. Still, the

parties’ relationship was strained: Stasie texted John that “the kids do not give a

sh*t about you and are dead to you,” told John that he did not deserve the kids, and

told the eldest child that his father did not want to talk to him and that John was not

his father. At the time of the 23 September 2015 hearing, Stasie and the children

lived with Stacie’s mother in Lewisville, the children were enrolled in school there,

and Stasie had obtained employment in nearby Winston-Salem. Prior to relocating

to Lewisville, Stasie had discussed the move with John, who objected. John asked

Stasie to allow the children to stay with him every other week during the summer,

but Stasie refused. Stasie also rejected John’s request for additional visitation time

for beach weekends. At some point after the parties’ separation, John also relocated,

moving from Waxhaw, in Union County, to Charlotte, in Mecklenburg County.1 John

testified that the three-hour travel time to the Lewisville area made it difficult for

John to attend his son’s 8:30 a.m. Saturday soccer games.

In its 2 February 2016 order, the district court concluded that both parties

were fit and proper persons to have custody of the children, and thus, awarded the

1 At the hearing, John testified that he and the children would live in the former marital residence if

he gained primary custody, but in his brief to this Court, John’s appellate counsel states that John

lived with his own parents in Charlotte at the time of the hearing.

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Opinion of the Court

parties joint legal custody, with Stacie having primary physical custody and John

enjoying visitation on alternating weekends. The court further determined that it

was in the best interest of the children that they reside in Union County. Accordingly,

the court ordered that Stasie and the children move back to Union County and live

in the former marital residence, and that John continue to pay the mortgage and

utilities for the home. From the custody order, Stasie appeals, arguing that the trial

court abused its discretion by requiring that she relocate to the former marital

residence in Union County. Stasie emphasizes that, at the time of the custody

hearing, neither she nor John had resided in Union County for over a year, and

contends that, where the children were settled in Forsyth County, the move would be

highly disruptive to them.

Grounds for Appellate Review

Initially, we must consider whether this interlocutory appeal is properly before

us. Our review of the record in this matter and pertinent case law indicates that the

2 February 2016 order from which Stasie appeals is a permanent or “final” order as

to child custody, and, thus, immediately appealable under our General Statutes.

“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 (citation omitted), reh’g denied, 232 N.C. 744, 59 S.E.2d

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429 (1950). “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).

However, in 2013, our General Assembly enacted section 50-19.1, which provides:

Notwithstanding any other pending claims filed in the

same action, a party may appeal from an order or judgment

adjudicating a claim for absolute divorce, divorce from bed

and board, child custody, child support, alimony, or

equitable distribution if the order or judgment would

otherwise be a final order or judgment within the meaning

of [section] 1A-1, Rule 54(b), but for the other pending

claims in the same action.

N.C. Gen. Stat. § 50-19.1 (2015). In turn, under Rule 54(b) of our Rules of Civil

Procedure, “[w]hen more than one claim for relief is presented in an action, . . . the

court may enter a final judgment as to one or more but fewer than all of the claims

. . . only if there is no just reason for delay and it is so determined in the judgment.”

N.C. Gen. Stat. § 1A-1, Rule 54(b) (2015). A judgment with a Rule 54(b) certification

from the trial court is then immediately appealable. Id. The initial question for this

Court is thus whether the order from which Stasie appeals is a final order as to child

custody.

In one sense, all child custody orders are temporary: they

are subject to modification, and they terminate once the

child reaches the age of majority. Yet a distinction is

drawn in our statutes and in our case law between

temporary or interim custody orders and permanent or

final custody orders.

A permanent custody order establishes a party’s present

right to custody of a child and that party’s right to retain

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custody indefinitely. Permanent custody orders arise in

one of two ways. If the necessary parties have entered into

an agreement for permanent custody, and the trial court

enters a consent decree which contains that agreement, the

consent decree is a permanent custody order. In all other

cases, permanent custody orders are those orders that

resolve a contested claim for permanent custody of a child

by granting permanent custody to one of the parties. They

are issued after a hearing of which all parties so entitled

are notified and at which all parties so entitled are given

an opportunity to be heard.

In contrast, temporary custody orders establish a party’s

right to custody of a child pending the resolution of a claim

for permanent custody—that is, pending the issuance of a

permanent custody order.

Regan v. Smith, 131 N.C. App. 851, 852-53, 509 S.E.2d 452, 454 (1998) (citations and

internal quotation marks omitted).

“There is no absolute test for determining whether a custody order is

temporary or final. A temporary order is not designed to remain in effect for extensive

periods of time or indefinitely.” Miller v. Miller, 201 N.C. App. 577, 579, 686 S.E.2d

909, 911 (2009) (citations, internal quotation marks, and ellipses omitted). Generally,

a child custody “order is temporary if either (1) it is entered without prejudice to

either party, (2) it states a clear and specific reconvening time in the order and the

time interval between the two hearings was reasonably brief; or (3) the order does not

determine all the issues.” Senner v. Senner, 161 N.C. App. 78, 81, 587 S.E.2d 675,

677 (2003) (citations omitted). “If the order does not meet any of these criteria, it is

permanent.” Peters v. Pennington, 210 N.C. App. 1, 14, 707 S.E.2d 724, 734 (2011)

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(citation omitted). Further, it is the satisfaction of these criteria, or lack thereof, and

not any designation by a district court of an order as temporary or permanent which

controls. See Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 (2000);

see also Woodring v. Woodring, 227 N.C. App 638, 643, 745 S.E.2d 13, 18 (2013) (“A

trial court’s designation of an order as ‘temporary’ or ‘permanent’ is neither

dispositive nor binding on an appellate court.”) (citation omitted).

Where this Court has determined that a child custody order is temporary

because it did not “determine all the issues[,]” the remaining, undecided issues were

child custody matters such as legal custody, ongoing holiday schedules, and the scope

of visitation for the noncustodial parent. See, e.g., id. at 644, 745 S.E.2d at 18 (“[The]

order [appealed from] did not address [the] father’s ongoing visitation, but rather

provided [the] father with only three specific instances of visitation in 2010. Nor did

the . . . order explicitly address legal custody. Thus, the order [did] not determine all

the issues and was a temporary order.” (citation and internal quotation marks

omitted; emphasis added); Sood v. Sood, 222 N.C. App. 807, 809, 732 S.E.2d 603, 606

(holding a custody order was temporary and did not determine all the issues because

“it did not resolve holidays for the indefinite future”) (emphasis added), cert. denied,

disc. review denied, and appeal dismissed, 366 N.C. 417, 735 S.E.2d 336 (2012);

Simmons v. Arriola, 160 N.C. App. 671, 675, 586 S.E.2d 809, 811 (2003) (“The initial

order in the present case does not specify visitation periods and, therefore, is

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Opinion of the Court

incomplete and cannot be considered final.” (emphasis added)); see also Anzures v.

Walbecq, 781 S.E.2d 531 (2016) (unpublished), available at 2016 N.C. App. LEXIS 26

(holding a custody order was temporary because it did not resolve holiday schedules

indefinitely and covered visitation only for a brief period). On the other hand, the

Court has concluded that a custody order was permanent if all issues relating to child

custody had been resolved, even if other matters remained pending. See, e.g., Brewer,

139 N.C. App. at 228, 533 S.E.2d at 546 (holding that an order was permanent

because, inter alia, “the court resolved every issue dealing with custody”). Likewise,

the plain language of section 50-19.1 permits immediate appeal where an order

“would otherwise be a final order . . . , but for the other pending claims in the same

action.” N.C. Gen. Stat. § 50-19.1. Thus, the clear intent of our General Assembly in

enacting the statute was to permit immediate appeal of, inter alia, permanent child

custody orders despite the existence of still-pending claims in the matter not related

to custody.

The order here resolves all issues related to child custody, providing for the

parties to share joint custody, with primary physical custody to Stasie, and sets out

a detailed schedule for visitation and holidays that covers the indefinite future:

A. The parties are awarded Joint Custody and [the

children] shall reside primarily with the Plaintiff/Mother.

B. The Defendant/Father shall have visitation on

alternating weekends from Friday when school is out until

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Monday when school takes back in and on each Wednesday

evening from the time school let[s] out until 8:00pm.

C. The Defendant/Father shall have four non-consecutive

weeks summer visitation and select his weeks by February

1 of each year.

D. The Defendant/Father is to have the children in odd

numbered years from 2pm Christmas [D]ay to 2pm New

Year’s [D]ay; the Plaintiff/Mother is to have the children

for a like time period in the odd numbered years and

Defendant/Father shall have the children in even

numbered years from the time school is out for the

Christmas break until 2pm Christmas Day; the

Plaintiff/Mother is to have the children for a like period of

time in the odd numbered years.

E. The Defendant/Father is to have the children on Union

County Spring/Easter school break during even numbered

years and odd years the fall break for [the] Union County

school system.

F. The children are to be with the Plaintiff/Mother

Thanksgiving from [the] time school is out until 3pm

Friday and the remainder of the Thanksgiving weekend

with the Defendant/Father.

G. The Defendant/Father shall in addition have the

following:

Visitation in odd years

1. Martin Luther King, Jr. Holiday from Friday-Monday;

to begin at school recess on Friday and continue until 6pm

on Monday.

2. Memorial Day from school recess on Friday before

holiday until 6pm of Memorial Day.

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3. Independence Day/4th of July school recess (if school is

in session) until 6pm of night before school is back in

session[.]

4. Minor child’s birthday from school recess (if school is in

session) until 8:30pm.

Visitation in even years

1. Easter break from school recess until 6pm of the night

before school resumes.

2. Labor Day from school recess until 6pm the night before

school resumes.

H. Mother’s Day to the Mother in all years from 10am until

6pm to supersede any other Visitation. Father’s Day to the

Father in all years from 10am until 6pm to supersede any

other Visitation.

Because the order resolves all issues regarding custody and visitation, was not

“entered without prejudice to either party[,]” and does not “state[] a clear and specific

reconvening time[,]” see Senner, 161 N.C. App. at 81, 587 S.E.2d at 677, it is a

permanent order and therefore immediately appealable under section 50-19.1.

Accordingly, Stasie’s appeal is properly before this Court on the merits.

Merits of Stasie’s Appeal

On appeal, Stasie argues that the district “court abused its discretion by

requiring [Stasie] to relocate to the former marital residence in Union County, when

the undisputed evidence was that neither party had lived in Union County for over a

year and the move would be highly disruptive to the children who were settled in

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Forsyth County with [Stasie] and her family.” We agree that the portion of the

district court’s order purporting to order Stasie to reside in Union County in the

former marital residence must be set aside.

Following the custody, visitation, and holiday provisions quoted above, the

court ordered:

I. Until the remaining issues are heard on the merits, the

children are to live in Union County, North Carolina and

the Defendant/Father is to continue to pay the mortgage

and utilities at the former marital residence. The Plaintiff

shall return to live with the children on or before March 1,

2016.

By its plain language, this portion of the order purports to order Stasie and the

children to move back to Union County from their current home in Forsyth County.2

Although the issue of whether our district courts can order a party in a child custody

proceeding to relocate to a specific location is a matter of first impression in this State,

the pertinent statutory and case law leads us to conclude that the district court here

acted in excess of its powers. Accordingly, we vacate paragraph I of the order.

Resolution of this appeal requires disentanglement of two closely related, yet

distinct matters: the authority of a court in a child custody case (1) to award primary

custody of a child and order visitation and (2) to control where a parent involved in a

2 As noted supra, at the time the order was entered, no party lived in Union County: the children

resided with Stasie in Forsyth County and John resided in Mecklenburg County.

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child custody matter may live. While the former is within the court’s discretion, the

latter is beyond the scope of the district court’s authority.

Chapter 50 of our General Statutes provides: “An order for custody of a minor

child entered pursuant to this section shall award the custody of such child to such

person, agency, organization or institution as will best promote the interest and

welfare of the child.” N.C. Gen. Stat. § 50-13.2(a) (2015). In fulfilling this directive,

a district court retains significant discretion:

The statute expresses the policy of the State that the best

interest and welfare of the child is the paramount and

controlling factor to guide the judge in determining the

custody of a child. . . .

In upholding the order of the [district] court we recognize

that custody cases generally involve difficult decisions.

The [district court] judge has the opportunity to see the

parties in person and to hear the witnesses. It is

mandatory, in such a situation, that the [district court]

judge be given a wide discretion in making his

determination, and it is clear that his decision ought not to

be upset on appeal absent a clear showing of abuse of

discretion.

In re Stancil, 10 N.C. App. 545, 548, 179 S.E.2d 844, 847 (1971) (citation and internal

quotation marks omitted).

However, while

[i]t is well established that [district court] judges are vested

with wide discretion in determining matters concerning

child custody[,] . . . . [t]he . . . judge’s discretion . . . can

extend no further than the bounds of the authority vested

in the . . . judge. In proceedings involving the custody . . .

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of a minor child, the . . . judge is authorized to determine

the party or parties to whom custody of the child shall be

awarded, whether and to what extent a noncustodial person

shall be allowed visitation privileges, . . . whether an order

for child custody or support shall be modified or vacated

based on a change in circumstances, and certain other

related matters. In addition, . . . judges have authority to

enforce orders concerning child custody . . . by the methods

set forth in [our General Statutes].

Appert v. Appert, 80 N.C. App. 27, 34, 341 S.E.2d 342, 346 (1986) (citations omitted;

emphasis added) (holding that “trial judges in this State do not have authority to

condition the receipt or payment of child support upon compliance with court-ordered

visitation”). In other words, in child custody cases, the General Assembly has granted

our district courts broad discretion and authority to (1) award custody of a child (and

enforce such awards), (2) order visitation for the noncustodial parent,3 and (3) resolve

“certain other related matters.” Id.; see also N.C. Gen. Stat. § 50-13.2(b) (“Any order

for custody shall include such terms, including visitation, as will best promote the

interest and welfare of the child.”).

Here, the district court determined, in its discretion, that the best interest of

the children was served by awarding primary physical custody to Stasie, with

significant visitation provided to John. That decision is not contested by either party.

The question before this Court is whether ordering Stasie and the children to relocate

3 Chapter 50 also contains provisions for custody and visitation for nonparent parties, such as

grandparents, in certain circumstances, but because those provisions are neither relevant nor

informative in this matter, we do not discuss them herein.

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to Union County is the type of “related matter” or “term” that forms the third major

prong of a district court’s authority in resolving a child custody dispute.

Certainly, child custody orders may include directives that facilitate an

ordered custody and visitation plan. See, e.g., Meadows v. Meadows, __ N.C. App. __,

__, 782 S.E.2d 561, 569 (2016) (approving term that a parent’s visits be supervised

and take place at a specific location to facilitate that supervision); Burger v. Smith,

__ N.C. App. __, __, 776 S.E.2d 886, 894 (2015) (approving a trial court’s ruling that,

during periods of scheduled visitation, the noncustodial parent could travel with the

child to Malawi where he worked as a missionary); Gerhauser v. Van Bourgondien,

238 N.C. App. 275, 277, 767 S.E.2d 378, 381 (2014) (noting in passing that a custody

order “included provisions regarding payment for the children’s travel expenses for

visitation”); Anderson v. Lackey, 166 N.C. App. 279, 603 S.E.2d 168 (2004)

(unpublished), available at 2004 N.C. App. LEXIS 1711 (reviewing an order of

contempt where a custodial parent allegedly violated terms of a custody order

requiring, inter alia, that she deliver the child to the other parent for visits and

discuss those visits in a positive manner with the child). Further, district court judges

regularly resolve disputes that directly implicate a child’s relationship with each

parent or academic and other activities. See, e.g., Cunningham v. Cunningham, 171

N.C. App. 550, 561, 615 S.E.2d 675, 683 (2005) (approving a restriction barring the

mother from using a specific babysitter who had been “interfering” with the children’s

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relationship with their father); Elrod v. Elrod, 125 N.C. App. 407, 411, 481 S.E.2d

108, 111 (1997) (holding that a district “court in a child custody proceeding is not

precluded from prohibiting in some circumstances, as a condition of the custody grant,

the home schooling of the children”) (citations omitted); MacLagan v. Klein, 123 N.C.

App. 557, 565, 473 S.E.2d 778, 787 (1996) (affirming the district court’s ruling

regarding disputes over a child’s religious training), disc. review denied, 345 N.C. 343,

483 S.E.2d 170 (1997). However, we have found no case in this State wherein a

district court judge purported to order a custodial parent and the minor children to

move from one county to another and to live in a specific house.

To be sure, our courts regularly consider the relocation (or proposed relocation)

of custodial parents when deciding whether to modify existing child custody orders.4

In these . . . instances the question arises whether the

person having custody of a child or to whom custody would

otherwise be granted is to be tied down permanently to the

state which awards custody. . . . The . . . court must make

a comparison between the two applicants considering all

factors that indicate which of the two is best-fitted to give

the child the home-life, care, and supervision that will be

most conducive to its well-being.

In evaluating the best interests of a child in a proposed

relocation, the . . . court may appropriately consider several

factors including: The advantages of the relocation in

4 Modification of child custody awards is a two-step process. “A court order for custody of a minor child

may be modified. . . . [if] the moving party shows there has been a substantial change in circumstances

affecting the welfare of the minor child. . . . Once . . . a substantial change in circumstances [is shown]

. . ., the . . . court must determine whether a change in custody is in the best interest of the child.”

Browning v. Helff, 136 N.C. App. 420, 423-24, 524 S.E.2d 95, 98 (2000) (citations, internal quotation

marks, some ellipses, and some brackets omitted).

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terms of its capacity to improve the life of the child; the

motives of the custodial parent in seeking the move; the

likelihood that the custodial parent will comply with

visitation orders when he or she is no longer subject to the

jurisdiction of the courts of North Carolina; the integrity of

the noncustodial parent in resisting the relocation; and the

likelihood that a realistic visitation schedule can be

arranged which will preserve and foster the parental

relationship with the noncustodial parent.

Evans v. Evans, 138 N.C. App. 135, 141-42, 530 S.E.2d 576, 580 (2000) (citation and

internal quotation marks omitted). As reflected in this language from Evans, where

a custodial parent has moved or plans to do so and the noncustodial parent objects,

our district courts have the authority to consider the factors quoted above and make

an award of custody accordingly. That is, a court may determine either (1) that

custody should remain with a parent who has relocated or (2) that it is in the child’s

best interest to switch custody to the parent who has not relocated. See, e.g., Green

v. Kelischek, 234 N.C. App. 1, 17, 759 S.E.2d 106, 116 (2014) (finding no abuse of

discretion in a district “court’s decision to modify the existing custody order such that

[the former noncustodial parent] is entitled to school year custody of [the child] if [the

former custodial parent] moves to Oregon”); O’Connor v. Zelinske, 193 N.C. App. 683,

691, 668 S.E.2d 615, 620 (2008) (finding no abuse of discretion in declining to change

primary custody while allowing the custodial parent “the option to relocate to

Minnesota. . . . [where] the advantages to the children outweigh the disadvantages”);

Cunningham, 171 N.C. App. at 561-62, 615 S.E.2d at 684 (finding no abuse of

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discretion in declining to change primary custody where the custodial parent planned

a possible move out of state in the future). Thus, if a court with jurisdiction in a child

custody matter believes that a parent’s relocation is not in the child’s best interest,

its recourse is to award primary custody to the other parent, as did the court in Green.

234 N.C. App. at 17, 759 S.E.2d at 116. However, district courts do not have authority

to order that a parent relocate (or refrain from doing so).

Our district courts may consider where each parent lives, along with any other

pertinent circumstances, in determining which parent should be awarded primary

custody to facilitate the child’s best interest. See Blackley v. Blackley, 285 N.C. 358,

362, 204 S.E.2d 678, 681 (1974) (noting that the district court “judge’s concern is to

place the child in an environment which will best promote the full development of his

physical, mental, moral and spiritual faculties”) (citations omitted). Put simply, a

district court must consider the pros and cons of ordering primary custody with each

parent, contemplating the two options as they exist, and then choose which is in the

child’s best interest. See Stanback v. Stanback, 266 N.C. 72, 76, 145 S.E.2d 332, 335

(1965) (“A judgment awarding custody is based upon the conditions found to exist at

the time it is entered.”) (emphasis added). However, a court cannot order a parent to

relocate in order to create a “new and improved” third option, even if the district court

sincerely believes it would be in the child’s best interest.

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In sum, the district court here was free to make findings of fact regarding the

relative benefits to the children of living with John in Mecklenburg County or with

Stasie in Forsyth County, and to rely on those factual findings in deciding which

parent should have primary physical custody. If the court believed Stasie’s residence

in Forsyth County rendered her the less beneficial choice to have primary custody of

the children, it had the discretion to award primary custody to John. However, the

court acted outside the scope of its authority in purporting to compel Stasie and the

children to move back to Union County and reside in the former marital residence.

Accordingly, we vacate paragraph I of the order.

VACATED IN PART.

Judge CALABRIA concurs.

Judge BRYANT concurs in result only.

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