{
  "id": 8376959,
  "name": "JAMES BERNARD CREIGHTON, Plaintiff v. CHARLOTTE KIRK LAZELL-FRANKEL, Defendant",
  "name_abbreviation": "Creighton v. Lazell-Frankel",
  "decision_date": "2006-06-20",
  "docket_number": "No. COA05-980",
  "first_page": "227",
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          "parenthetical": "citing Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 588, 492 S.E.2d 369, 371 (1997)"
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          "parenthetical": "citing Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 588, 492 S.E.2d 369, 371 (1997)"
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  "last_updated": "2023-07-14T17:18:34.747306+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges McCULLOUGH and TYSON concur."
    ],
    "parties": [
      "JAMES BERNARD CREIGHTON, Plaintiff v. CHARLOTTE KIRK LAZELL-FRANKEL, Defendant"
    ],
    "opinions": [
      {
        "text": "LEVINSON, Judge.\nJames Creighton (father) appeals from an order denying his motion for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 50A-312 (2005). We affirm.\nThe pertinent facts may be summarized as follows: Father and Charlotte Lazell-Frankel (mother) were married on 4 February 1994 and have one child together. The parties divorced on 8 July 2002. The divorce order incorporated a 3 August 1999 separation agreement. This agreement specified the terms of custody for the minor child. The terms provided that the parties would alternate custody of the child; specifically, the parent with custody during the school year would retain custody until the end of summer camp, when the other parent would assume custody for the following school year. The divorce order also decreed that the trial court \u201cshould retain jurisdiction for the entry of further [o]rders and retain[] continuing and exclusive jurisdiction as to the issue of child custody and visitation.\u201d\nOn 24 June 2003 mother filed a motion in the cause to enforce the North Carolina court order, including a request that father be held in civil contempt for his plans to violate the custody provisions by failing to take the minor child to summer camp and wrongfully maintain custody of her. The 24 June 2003 motion also requested that continuing jurisdiction remain in North Carolina under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.C. Gen. Stat. \u00a7 50A-101, et seq. (2005). Mother contended that, although she was \u201cdomiciled\u201d in West Africa for employment reasons, she was still a \u201cresident\u201d of North Carolina. Mother further asserted that father was \u201cdomiciled\u201d in Tennessee. Mother\u2019s motion also alleged that father had filed a petition in Tennessee to register and modify the North Carolina custody order.\nIn a 14 August 2003 order, the trial court denied mother\u2019s motion. The court concluded that neither the parents nor the child retain any significant relationship with this State, and that Tennessee should assert jurisdiction because North Carolina was an \u201cinconvenient forum\u201d pursuant to N.C. Gen. Stat. \u00a7 50A-202(a)(l) (2005).\nFollowing the 14 August 2003 order, father filed a motion for an award of attorney\u2019s fees, costs and expenses as a \u201cprevailing party\u201d pursuant N.C. Gen. Stat. \u00a7 50A-312 (2005). In a 3 September 2004 order, the trial court denied father\u2019s motion. The court reasoned that it no longer had jurisdiction to hear the matter because it had relinquished jurisdiction to Tennessee and, further, that:\n1. The scope of Part 3 of North Carolina General Statute Chapter 50A is limited to cases which address child abductions, that is, orders to return a child or orders seeking enforcement of a custody determination.\n2. The Defendant\u2019s motion, which was filed in good faith, was not filed to seek return of a child or enforcement of a custody determination and therefore, did not fall under the ambit of Part 3 of North Carolina General Statute Chapter 50A. Accordingly, 50A-312 is inapposite.\nFrom this 3 September 2004 order, father appeals, contending that the trial court erred in denying his motion for attorney\u2019s fees, costs and expenses pursuant to G.S. \u00a7 50A-312. We disagree.\nG.S. \u00a7 50A-312 provides that:\nThe court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorneys\u2019 fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.\n\u201cQuestions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court.\u201d In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 559, 589 S.E.2d 179, 180 (2003) (citing Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 588, 492 S.E.2d 369, 371 (1997)).\nThe intent of the legislature controls the interpretation of a statute. . . . When the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\nIn re Banks, 295 N.C. 236, 239-40, 244 S.E.2d 386, 388-89 (1978) (citations omitted).\nThe UCCJEA provides a uniform set of jurisdictional rules and guidelines for the national enforcement of child custody orders. See N.C. Gen. Stat. \u00a7\u00a7 50A-101 et seq. (2005). G.S. \u00a7 50A-312 is located under Part 3 of the' Act, which provides for the registration and enforcement of custody determinations. The statutory definitions, which apply to Part 3 concerning Enforcement, state that a \u201cpetitioner\u201d is \u201ca person who seeks . . . enforcement of a child-custody determination. N.C. Gen. Stat. \u00a7 50A-301(1) (2005). A \u201crespondent\u201d is defined as \u201ca person against whom a proceeding has been commenced for enforcement of an order for return of a child under ... a child custody determination.\u201d N.C. Gen. Stat. \u00a7 50A-301(2) (2005). A \u201cchild custody determination\u201d is defined in the definitions provision and is applicable to the entire UCCJEA Article:\n\u201cChild-custody determination\u201d means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. . . .\nN.C. Gen. Stat. \u00a7 50A-102 (3) (2005).\nFather contends that the trial court erroneously concluded that it had no authority to award him attorney fees and costs. He essentially argues that, even though this cause did not involve an abduction or seek the immediate return of a child, and even though it did not seek the expedited enforcement of custody orders and/or the registration of out-of-state orders, he qualifies as a \u201cprevailing party\u201d under G.S. \u00a7 50A-312. Father argues that mother\u2019s 24 June 2003 motion in the cause sought enforcement of the portion of a court judgment setting forth child custody arrangements for the minor child. See G.S. \u00a7 50A-102 (3) (defining \u201cchild custody determination\u201d); mother qualified as a person who sought enforcement of a child custody determination pursuant to G.S. \u00a7 50A~301(1); and that he qualified as \u201ca person against whom a proceeding [was] commenced for . . . enforcement of a child-custody determination,\u201d see G.S. \u00a7 50A-301(2). We disagree.\nHere, mother filed a motion in the cause for contempt. She did not seek the expedited enforcement of a child custody determination; seek to register an out-of-state order; or otherwise utilize the remedies set forth in Part 3 of the UCCJEA. Consequently, Part 3 was not implicated, and the allowance set forth in G.S. \u00a7 50A-312 is inapplicable.\nAffirmed.\nJudges McCULLOUGH and TYSON concur.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      }
    ],
    "attorneys": [
      "Hayes Hofler, P.A., by R. Hayes Hofler and The Law Office of C. Connor Crook, by C. Connor Crook, for plaintiff",
      "Nancy E. Gordon, for defendant.",
      "Charlotte Kirk Laz\u00e9ll-Frankel pro se."
    ],
    "corrections": "",
    "head_matter": "JAMES BERNARD CREIGHTON, Plaintiff v. CHARLOTTE KIRK LAZELL-FRANKEL, Defendant\nNo. COA05-980\n(Filed 20 June 2006)\nCosts\u2014 attorney fees \u2014 civil contempt \u2014 child custody\nThe trial court did not err by denying plaintiff father\u2019s motion for attorney fees under N.C.G.S. \u00a7 50A-312 in a case where defendant mother filed a motion in the cause to enforce a North Carolina court order including a request that plaintiff father be held in civil contempt for his plans to violate the parties\u2019 child custody provisions, because defendant mother did not seek the expedited enforcement of a child custody determination, seek to register an out-of-state order, or otherwise utilize the remedies set forth in Part 3 of the Uniform Child Custody Jurisdiction and \u25a0 Enforcement Act.\nAppeal by Plaintiff from order entered 3 September 2004 by Judge M. Patricia Devine in Orange County District Court. Heard in the Court of Appeals 15 March 2006.\nHayes Hofler, P.A., by R. Hayes Hofler and The Law Office of C. Connor Crook, by C. Connor Crook, for plaintiff\nNancy E. Gordon, for defendant.\nCharlotte Kirk Laz\u00e9ll-Frankel pro se."
  },
  "file_name": "0227-01",
  "first_page_order": 259,
  "last_page_order": 263
}