Graham v Keith
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA10-917 NORTH CAROLINA COURT OF APPEALS Filed: 2 August 2011 COURTNEY S. GRAHAM, Plaintiff, v. New Hanover County No. 07-CVD-4129 JAMES DAVID KEITH, JR., and SANDRA FAYE KEITH, Defendants. Appeal by defendants from judgment and order entered on or about 13 January 2010 by Judge Jeffrey E. Noecker in District Court, New Hanover County. Heard in the Court of Appeals 12 January 2011. The Lineberry Law Firm, PC, by Chas M. Lineberry, Jr., for plaintiff-appellee. Lea, Rhine & Rosbrugh, defendant-appellants. PLLC, by James W Lea, III, for STROUD, Judge. Defendants appeal the trial court s order which declares the adoption of their granddaughter void. reasons, we affirm. I. Background For the following -2This case arises from a custody dispute Mary,1 over an approximately 13 year-old-girl; plaintiff is Mary s biological mother and defendants grandparents. are Mary s biological paternal On 29 January 2002, plaintiff signed a consent form to allow defendants to adopt Mary.2 On or about 13 November 2002, the trial court decreed that Mary had been adopted by defendants ( 2002 adoption decree ). Despite the adoption, Mary continued to live with plaintiff except for some brief periods of time when plaintiff needed another place for Mary to stay. Mary was September still 2007, when living with plaintiff plaintiff filed a on or about complaint 13 against defendants requesting, inter alia, (1) permanent custody of Mary pursuant to Chapter 50 of the North Carolina General Statutes, (2) the trial court vacate the 2002 adoption decree, and (3) entry of an emergency temporary custody order maintaining Mary in the custody of plaintiff. On or about 31 January 2009, the trial court awarded plaintiff temporary emergency care, custody and control of the minor child ( emergency custody order ). 9 1 2 February 2009, defendants answered plaintiff s On complaint, A pseudonym will be used to protect the identity of the minor. All of the parties agree that Mary s father signed a consent form allowing defendants to adopt Mary. -3substantially denying the material allegations; defendants also requested Mary be returned to them immediately.3 April 2009, defendants filed an amended On or about 8 counterclaim[,] (original in all caps), which consisted of a motion to dismiss plaintiff s challenge to the 2002 adoption decree because it was barred by the statute of limitations. Also in April of 2009, defendants filed a motion to vacate the emergency custody order. On or about emergency 26 August custody order 2009, the trial and gave sole court set custody of aside Mary the to defendants. On 28 October 2009, a hearing upon plaintiff s claims was held. According to the trial court s order, entered on or about 13 January 2010, at some prior time, the trial court had denied and dismissed the Chapter 50 custody claim for Plaintiff s lack of standing. 4 2002 adoption decree. II. The trial court, inter alia, vacated the Defendants appeal. Public Policy 3 The answer was signed by counsel and verified by defendants on 31 October 2008, although it was not filed until 9 February 2009. 4 The order denying and dismissing plaintiff s Chapter 50 custody claim is not included in the record and the record does not show when this determination was made; no arguments are raised on appeal as to the propriety of this order. -4Defendants first contend that the trial court s conclusion of law that plaintiff is entitled to have the decree of adoption, entered on 13 November 2002, declared void ab initio, vacated and set aside, is contrary to North Carolina law and violates established State policy concerning finality of adoptions. (Original in all caps.) the necessary Defendant then states that [t]he fact that this kind of relief is possible so many years after an adoption decree is filed should be very disturbing to adoptive parents throughout this State and [f]or trial courts to allow people such as the Plaintiff to overturn adoption decrees after so many years have passed, defies the logic and policy behind North Carolina s adoption statutes. this argument, grounds upon defendants which the do trial not court contest the based its actual In legal decision, but rather focus on a general public policy argument. Public policy does not prevent relief when an adoption is induced by fraud. See N.C. Gen. Stat. § 48-2-607(c) (2007). Here, the trial court determined that the adoption was void for fraud. N.C. Gen. Stat. § 48-2-607(c) provides a legal route upon which adoption may be set aside for fraud; see id., the trial court determined that relief was available pursuant to N.C. Gen. Stat. § 48-2-607(c). Accordingly, we reject -5defendant s argument regarding public policy. III. Fraud in the Inducement Defendants next contend that the trial court s conclusion of law that plaintiff is entitled to an order setting aside the 13 November 2002 prior decree of adoption on the grounds that the judgment is void for fraud in the inducement, is contrary to North Carolina law, and constitutes an abuse of discretion. (Original in all caps.) as a challenge regarding to fraud, sufficiency of the trial defendants the findings of fact. While defendants frame their contention court s are evidence to conclusion actually support of challenging the trial law the court s Defendant s analysis of the trial court s errors begins by arguing that the evidence and testimony that the Plaintiff submitted at trial was insufficient to establish the elements of fraud, and therefore the consent executed by the Plaintiff was irrevocable. Defendants then cite seven times to the transcript to support their argument. Yet the transcript is not a part of testimony is challenges the record on appeal, and transcript of the necessary for us to consider an argument which the sufficiency of the evidence to support findings of fact: The burden is on an appealing party to show, by presenting a full and complete record, the -6that the record is lacking in evidence to support the trial court s findings of fact. Our Rules of Appellate Procedure state: The record on appeal in civil actions shall contain so much of the evidence as is necessary for an understanding of all errors assigned. Furthermore, where the evidence is not in the record, it will be assumed that there was sufficient evidence to support the findings. In other words, when the evidence is not in the record the matter is not reviewable. Since the record on appeal is devoid of evidence . . . we are unable to determine what evidence was before the trial court and are unable to perform a meaningful review of this [issue]. Walker v. Penn Nat l Sec. Ins. Co., 168 N.C. App. 555, 560, 608 S.E.2d 107, 110-11 (2005) (citations, quotation marks, ellipses and brackets omitted). Defendant s brief focuses on specific statements the made during hearing and not on whether the findings of fact, as the trial court made them, support the conclusions of law. are unable to Just as in Walker, without a transcript we conduct argument on appeal.5 a meaningful review of defendants See id. IV. Conclusion For the foregoing reasons, we affirm. AFFIRMED. 5 We note that the record on appeal includes DEFENDANTS DESIGNATION FOR ARRANGEMENT FOR TRANSCRIPTION OF PROCEEDINGS and a CERTIFICATION OF DELIVERY of the transcript; however, the transcript is not in the record on appeal and has not been filed with this Court. -7Judges CALABRIA and HUNTER, JR., Robert N. concur. Report per Rule 30(e).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
