Munoz v. Munoz, COA20-193

Docket NºNo. COA20-193
Citation278 N.C.App. 647, 864 S.E.2d 364
Case DateAugust 03, 2021
CourtCourt of Appeal of North Carolina (US)

278 N.C.App. 647
864 S.E.2d 364

Issac MUNOZ, Plaintiff,
v.
Cassandra MUNOZ, Defendant.

No. COA20-193

Court of Appeals of North Carolina.

Filed August 3, 2021


Ward and Smith, P.A., by Christopher S. Edwards and Alex C. Dale, for plaintiff-appellee.

Smith Debnam Narron Drake Saintsing & Myers, L.L.P., Raleigh, by Alicia Jurney, for defendant-appellant.

ZACHARY, Judge.

¶ 1 Defendant-Mother Cassandra Munoz appeals from a permanent custody order awarding Plaintiff-Father Issac Munoz primary physical custody of their daughter, M.M.1 After careful review, we affirm.

864 S.E.2d 366

Background

¶ 2 Mother and Father grew up in California and were "high[-]school sweethearts," with Father graduating in 2010 and Mother graduating in 2012. They also married in 2012, and M.M. was born to the young couple in 2015. Mother was, and remains, a member of the United States Army. In 2016, the Army stationed Mother at Fort Bragg near Fayetteville, North Carolina, where she worked as a test measurement and diagnostic equipment maintenance support specialist.

¶ 3 When M.M. was born, both parents worked, but they preferred not to leave M.M. in daycare, so they relied on extended family to provide care for M.M. Father's grandmother lived with them and cared for M.M. before and after the family moved to Fayetteville following Mother's assignment to Fort Bragg. Mother's father has also lived with the family and taken care of M.M. For most of M.M.’s life, Mother and Father have had live-in family support to care for her.

¶ 4 While living in Fayetteville in 2018, Mother and Father separated. At that time, Mother was anticipating deployment to Iraq for nine months.

¶ 5 On 16 April 2018, Father filed a complaint in Cumberland County District Court seeking divorce from bed and board, child custody, child support, and equitable distribution. On 19 April 2018, Father obtained an ex parte order restraining Mother from contacting him and awarding Father temporary custody of M.M., as well as exclusive use and possession of the marital residence. On 25 April 2018, Mother filed an emergency motion to set aside the ex parte order. The trial court heard the matter that day, and on 3 May 2018, the court entered an order allowing both parties to occupy the marital residence pending further proceedings.

¶ 6 On 30 April 2018, Mother filed her answer and counterclaims for child custody, child support, and equitable distribution. On 10 May 2018, the parties executed a Memorandum of Judgment regarding temporary child custody, which the trial court entered on 27 June 2018 ("the temporary custody order"). Pursuant to the temporary custody order, the parties agreed that it was in M.M.’s best interest for them to share joint legal custody, with Father having primary physical custody and Mother having secondary physical custody. The parties also agreed to permit Father to relocate to California with M.M.

¶ 7 On 15 May 2018, Mother filed a motion to amend the temporary custody order, which came on for hearing on 14 June 2018. That same day, Mother filed a motion to review the temporary custody order, in that her deployment had been delayed until July. On 29 June 2018, the trial court entered an order requiring the parties to keep M.M. in North Carolina until Mother deployed, but no later than 1 July 2018.

¶ 8 On 12 July 2018, Mother filed a motion to set aside the temporary custody order, alleging that, inter alia , she had been "informed that she [would] no longer [be] deployed." Father and M.M. had already relocated to Victorville, California, where Father was employed as a supervisor for UPS.

¶ 9 Mother's motion to set aside the temporary custody order came on for hearing on 8 October 2018, and on 15 November 2018, the trial court entered its order establishing a holiday visitation schedule and once again awarding primary physical custody to Father and secondary physical custody to Mother. On 29 November 2018, the parties executed a second Memorandum of Judgment, which the trial court entered on 30 November 2018, modifying the holiday visitation schedule set forth in the trial court's order; a formal typed order was entered on 7 January 2019.

¶ 10 On 19 August 2019, the permanent custody matter came on for hearing in Cumberland County District Court before the Honorable Edward A. Pone. The next day, the trial court entered a permanent custody order awarding primary physical custody to Father and secondary physical custody to Mother. On 11 September 2019, Mother timely filed her notice of appeal.

Discussion

¶ 11 On appeal, Mother argues that the trial court abused its discretion by (1) allowing Father to relocate to California with M.M. without considering the factors set forth in

864 S.E.2d 367

Ramirez-Barker v. Barker , 107 N.C. App. 71, 418 S.E.2d 675 (1992), disapproved of on other grounds by Pulliam v. Smith , 348 N.C. 616, 501 S.E.2d 898 (1998) ; and (2) improperly considering her military-service obligations as the basis for determining that it was in M.M.’s best interest for Father to be awarded primary physical custody, in violation of N.C. Gen. Stat. § 50-13.2(f) (2019).

I. Standard of Review

¶ 12 When this Court reviews a child custody order,

the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Unchallenged findings of fact are binding on appeal. The trial court's conclusions of law must be supported by adequate findings of fact. Absent an abuse of discretion, the trial court's decision in matters of child custody should not be upset on appeal.

Jonna v. Yaramada , 273 N.C. App. 93, 116, 848 S.E.2d 33, 51 (2020) (citation omitted). "Questions of statutory interpretation are questions of law," which this Court reviews de novo. In re J.K. , 253 N.C. App. 57, 60, 799 S.E.2d 439, 441 (2017) (citation omitted).

II. Ramirez-Barker Factors

¶ 13 Mother first argues that the trial court abused its discretion by failing to give appropriate consideration to the Ramirez-Barker factors in determining whether relocation to California was in M.M.’s best interest. We disagree.

¶ 14 In Ramirez-Barker , this Court discussed the factors relevant to a trial court's evaluation of a child's best interest in a case involving the child's potential relocation.

In exercising its discretion in determining the best interest of the child in a relocation case, factors appropriately considered by the trial court include but are not limited to: the advantages of the relocation in 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.

107 N.C. App. at 79–80, 418 S.E.2d at 680.

¶ 15 However, the Ramirez-Barker factors are not a mandatory checklist for trial courts; as always, the primary objective is the determination of the best interest of the child. Trial courts considering this issue are not required "to make explicit findings addressing each and...

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