Tuel v. Tuel

• Decision Date: 17 March 2020
• Docket Number: No. COA19-691,COA19-691
• Citation: 270 N.C.App. 629,840 S.E.2d 917
• Parties: Laura Sue TUEL, Plaintiff, v. Anthony Ryan TUEL, Defendant.
• Court: North Carolina Court of Appeals

270 N.C.App. 629

840 S.E.2d 917

Laura Sue TUEL, Plaintiff,

v.Anthony Ryan TUEL, Defendant.

No. COA19-691

Court of Appeals of North Carolina.

Filed: March 17, 2020

No appearance for plaintiff.

Tharrington Smith, LLP, Raleigh, by Evan B. Horwitz and Jeffrey R. Russell, for defendant.

ARROWOOD, Judge.

Anthony Ryan Tuel ("defendant") appeals from the trial court's Order for Permanent Child Custody and Temporary Child Support granting primary physical custody to his former wife Laura Sue Tuel ("plaintiff") and permitting her to move with their children to Indiana. For the following reasons, we vacate and remand.

I. Background

Plaintiff and defendant married on 21 December 2002. Two children were born of the marriage on 17 April 2014 and 12 September 2016. The parties and their children resided in Johnston County, North Carolina. On 16 May 2017, plaintiff filed a complaint for child custody. The following day she left the marital residence and moved with the children to her parent's home in Rushville, Indiana.

Plaintiff and the children stayed with her parents in Indiana for three months. With the consent of the parties, on 21 August 2017 the trial court entered a Memorandum of Judgment/Order establishing the parties’ temporary child custody rights and obligations. This order provided for the return of plaintiff and the children to North Carolina, pending permanent resolution of the parties’ custody dispute.

On 5 July 2018, the trial court held a hearing adjudicating a permanent resolution to the issue of custody of the children. The trial court heard evidence and testimony from both parties. This evidence, in relevant part, tended to show the following facts. The parties experienced marital difficulties predating the birth of their children that were exacerbated by the added responsibilities of parenthood. Plaintiff suffered from mental health issues since adolescence, including two suicide attempts during her college years. The trial court received into evidence numerous journal entries and online forum posts written by plaintiff, as well as records from her therapy sessions, indicating that these issues stemmed from what she characterized as an abusive, disciplinarian upbringing by her religious fundamentalist parents. She underwent mental health therapy from March to June of 2017 and was diagnosed with "adjustment disorder with mixed anxiety and depressed mood[.]"

Plaintiff ceased all contact with her parents shortly after the birth of the parties’ first child in 2014. The reason for this estrangement was in part due to plaintiff's resentment about her own upbringing and concerns with how her parents’ religious beliefs would conflict with the worldview under which they planned to raise their own children. Nonetheless, amid increasing marital strife and a desire to separate from defendant, plaintiff reinitiated contact with her family in May of 2017 for support. After a visit from plaintiff's mother that month, plaintiff filed a complaint seeking custody of the children and relocated them to her parents’ home in Rushville, Indiana.

After hearing the evidence at trial, the trial court entered an Order for Permanent Child Custody and Temporary Child Support on 18 March 2019. The order granted primary physical custody to plaintiff, permitted plaintiff to move with the children to Rushville, Indiana, and granted defendant secondary physical custody. Defendant appeals from this order.

II. Discussion

On appeal, defendant argues that the trial court abused its discretion in its custody order by concluding as a matter of law that granting plaintiff primary custody would be in the best interests of their children, despite: (a) failing to make adequate findings of fact addressing the factors in Ramirez-Barker v. Barker , 107 N.C. App. 71, 418 S.E.2d 675 (1992), relevant to determining custody upon relocation of a parent to a foreign jurisdiction; and (b) otherwise making findings supporting this conclusion that were not supported by competent evidence. We agree with defendant's first contention, and therefore do not reach his second argument.

The trial court failed to make findings on several Ramirez-Barker factors relevant to material issues raised by the evidence at the hearing. In addition, many of the findings upon which it did base its conclusion of law are internally inconsistent. Therefore, we vacate and remand for entry of a new custody order not inconsistent with this opinion.

A. Standard of Review

"Absent an abuse of discretion, the trial court's decision in matters of child custody should not be upset on appeal." Everette v. Collins , 176 N.C. App. 168, 171, 625 S.E.2d 796, 798 (2006) (citation omitted). "Before awarding custody of a child to a particular party, the trial court must conclude as a matter of law that the award of custody to that particular party ‘will best promote the interest and welfare of the child.’ " Steele v. Steele , 36 N.C. App. 601, 604, 244 S.E.2d 466, 468 (1978) (quoting N.C. Gen. Stat. § 50-13.2(a) (2019) ). We review this conclusion of law de novo to determine whether it is adequately supported by the trial court's findings of fact.

Hall v. Hall , 188 N.C. App. 527, 530, 655 S.E.2d 901, 904 (2008) (citation omitted). "The findings of fact are conclusive on appeal if there is evidence to support them, even if evidence might sustain findings to the contrary. The evidence upon which the trial court relies must be substantial evidence and be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Everette , 176 N.C. App. at 170, 625 S.E.2d at 798 (internal citations omitted).

B. Ramirez-Barker Factors

Defendant first argues that the trial court did not make findings necessary to support an order granting primary physical custody to a parent relocating to another jurisdiction. We agree.

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. Although most relocations will present both advantages and disadvantages for the child, when the disadvantages are outweighed by the advantages, as determined and weighed by the trial court, the trial court is well within its discretion to permit the relocation.

Ramirez-Barker , 107 N.C. App. at 79-80, 418 S.E.2d at 680 (internal citation omitted); see also Evans v. Evans , 138 N.C. App. 135, 142, 530 S.E.2d 576, 580 (2000) (quoting Ramirez-Barker ).

We disagree with defendant insofar as he suggests that a relocation custody order is fatally deficient if the trial court fails to make explicit findings addressing each and every Ramirez-Barker factor. As we noted in Frey v. Best ,

although the trial court may appropriately consider these factors, the court's primary concern is the furtherance of the welfare and best interests of the child and its placement in the home environment that will be most conducive to the full development of its physical, mental and moral faculties. All other factors, including visitorial [sic] rights of the other applicant, will be deferred or subordinated to these considerations, and if the child's welfare and best interests will be better promoted by granting permission to remove the child from the State, the court should not hesitate to do so. Naturally, no hard and fast rule can be laid down for making this determination, but each case must be determined upon its own peculiar facts and circumstances.

189 N.C. App. 622, 633-34, 659 S.E.2d 60, 69-70 (2008) (internal quotation marks, alteration, emphasis, and citations omitted). Nonetheless, these factors will be highly relevant to the best interest of the child in nearly all of these situations.

In its custody order, the trial court made abundantly clear that its primary consideration in granting plaintiff primary custody and permitting her to move with the children to Rushville, Indiana was based upon its finding that:

It would be in the best interest of the minor children for them to be able to locate with the plaintiff to Rushville, Indiana given the strong ties of the Plaintiff's family and other support systems that would assist the Plaintiff with the care of the minor children.... The plaintiff's parents, her mother in particular, are willing and able to provide the care for the minor children to alleviate the cost and need of outside childcare.

The court found that both plaintiff and defendant would be fit and proper to share custody. It also found the children thrive under the care of each. However, the court gave no explanation why primary custody with plaintiff would be in the children's best interests, other than in reference to plaintiff's family support network in Rushville, Indiana.

Other than the advantage of a family support network for assistance in childcare, which defendant challenges and we discuss infra , none of the trial court's findings engage in any comparison between Rushville, Indiana and defendant's home in Johnston County, North Carolina, or each area's relative potential to enrich the children's lives. The court found that Rushville, Indiana is situated in a rural area and has the usual amenities of a mid-sized town. Yet the court failed to make any finding comparing this area to Johnston County, North Carolina, or provide any explanation as to why Indiana would otherwise provide the children with a more enriching environment.

Additionally, the court gives...