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Roybal v. Raulli

Court of Appeals of North Carolina

July 16, 2019

MATTHEW JASON ROYBAL, Plaintiff
v.
CHRISTY ANNE RAULLI, Defendant.

          Heard in the Court of Appeals 8 May 2019.

          Appeal by plaintiff from order entered 8 October 2018 by Judge Samantha Cabe in District Court, Orange County No. 14 CVD 1289.

          Browner Law, PLLC, by Jeremy Todd Browner, for plaintiff-appellant.

          Ellis Family Law, P.L.L.C., by Autumn D. Osbourne, for defendant-appellee.

          STROUD, JUDGE.

         Matthew Roybal appeals from an order addressing several issues of first impression for this Court arising from the Uniform Deployed Parents Custody and Visitation Act ("UDPCVA"). N.C. Gen. Stat. §§ 50A-350-396 (2017). Father's motion and the trial court's order dealt with all three aspects of custodial responsibility recognized by the UDPCVA: caretaking authority, decision-making authority, and limited contact. N.C. Gen. Stat. §§ 50A-374-375. The applicable standards for each aspect of custodial responsibility are slightly different, and here, separate prior orders addressed custody for each of the parties' two children, Elizabeth and Jay.[1] Because both children's previous custody orders addressed caretaking authority and decision-making authority in the event of Father's deployment, and the trial court did not find that the circumstances required modification, the trial court did not abuse its discretion in denying Father's motion as to these two aspects of custodial responsibility. But the prior orders did not address "limited contact," which is a form of visitation specifically authorized under the UDPCVA. N.C. Gen Stat. § 50A-375. The statute requires limited contact to be granted to a "nonparent" with a "close and substantial relationship" with a child unless limited contact is contrary to the child's best interest. Id. The trial court correctly granted limited contact to Father's wife, Stepmother, as to Elizabeth, but erred in its interpretation of Jay's prior order and North Carolina General Statute § 50A-373(1) as preventing the court from granting limited contact as to Jay. We therefore affirm the trial's court order in part but remand for the trial court to grant limited contact with Jay to Stepmother unless the court determines that she does not have a "close and substantial relationship" with Jay or that limited contact would be contrary to his best interests. Id. We also remand for the trial court to recognize Stepmother as a party to this action "until the grant of limited contact is terminated." N.C. Gen. Stat. § 50A-375(b).

         I. Background

         Mother and Father (hereinafter "parents") never married but while they were residing together, Elizabeth was born in 2012, and after their relationship ended, Jay was born in 2016. In September of 2014, Plaintiff-Father filed a verified complaint against Defendant-Mother for joint and legal custody of their daughter, Elizabeth. On 21 November 2014, Mother answered Father's verified complaint and requested custody and child support.

         On 29 June 2016, the trial court entered into a consent order for joint legal and physical custody of Elizabeth ("Elizabeth's Consent Order"). When Elizabeth's Consent Order was entered, Father was residing with his then fiancé, Victoria, ("Stepmother") and her daughter, age seven, from a previous relationship. Elizabeth had already been "introduced as a member of [Father's] household, "[2] and Mother was seven months pregnant with Jay. Elizabeth's order has extensive and detailed provisions for shared custody and decision-making and has these provisions relevant to this case:

2. Time-Sharing (Physical Custody). The parties shall share the physical custody of the minor child as set forth herein.
(a) Regular Weekly Schedule: Except for the periods of Vacation, Holidays and the Plaintiff's Military Duty as set forth below and except for what may otherwise be mutually agreed upon between the parties the minor child shall be in the physical custody of the Plaintiff beginning at 9:30 AM on Sunday morning and continuing until the beginning of school on Tuesday morning [two (2) days later] or until 9:30 AM on Tuesday morning if there is no school. The minor child shall be in the physical custody of the Defendant beginning with her drop off at school on Tuesday morning or from 9:30 AM on Tuesday if there is no school until she is dropped off for the beginning of school on Thursday morning [two (2) days later] or until 9:30 AM on Thursday morning if there is no school. The minor child shall be in the Plaintiff's physical custody from the time she is dropped off for school on Thursday morning or from 9:30 AM on Thursday morning if there is no school until the time she is dropped off for school on Friday or until 9:30 AM on Friday if there is no school. The minor child shall be in the Defendant's physical custody from Friday at the beginning of school or from 9:30 AM on Friday if there is no school until Sunday morning at 9:30 AM. The net result of this schedule is that the Plaintiff has physical custody of the minor child for three (3) overnights (Sunday, Monday and Thursday) and the Defendant has physical custody of the minor child for four (4) overnights (Tuesday, Wednesday, Friday and Saturday) with the minor child each week, sharing her on a 2-2-1-2 schedule.
(i) Military Duty: In the event that the Plaintiff has an USAR Drill Weekend (also known as a "Battle Assembly"), he shall pick up the minor child by 6:00 PM on Sunday to begin his physical custodial time. If the Plaintiff is unable to pick up the child by 6:00 PM, the Defendant shall retain physical custody of the child until the beginning of school on Monday morning or until 9:30 AM on Monday morning if there is no school, or as may be otherwise mutually agreed to between the parties.
5. "Temporary Military Duty" or "Active Duty". To the extent that any Temporary Military Duty would impact the Regular Weekly Schedule set forth above, the parties shall return to mediation to determine a new schedule, as appropriate at that time. Likewise, in the event that the parties cannot create a mutually agreeable schedule during any periods of Active Duty, the parties shall return to mediation for assistance in reaching a new schedule. Until such time as a new Order or agreement is in place, the minor child shall remain in Defendant's care if the Plaintiff is unavailable to exercise his time with the minor child.
6. Legal Custody. The parties shall share jointly in the decisions in reference to the major areas of parenting, as often as possible, and specifically:
(xi) The parties further stipulate and agree that should Plaintiff be deployed or otherwise unavailable due to his military status and therefore he be [sic] unable to respond to Defendant surrounding a matter that would generally fall under legal custody as described herein, Defendant shall be entitled to solely make said decision after waiting forty eight (48) hours to hear back from Plaintiff short of an emergency.

         After the entry of Elizabeth's Consent Order, Jay was born in August 2016. In September 2016, Father filed a motion to modify custody seeking modification of Elizabeth's Consent Order and determination of Jay's custody. On 11 July 2017, the trial court entered an order regarding Jay's custody, granting the parents joint legal and physical custody on a temporary basis, with a final order to be determined later.[3] The trial court denied Father's motion to modify Elizabeth's Consent Order, finding no substantial change of circumstances since entry of the order. When Jay's order was entered, Father had married Stepmother, and she was pregnant. Jay was eight months old at the time of the hearing in April 2017; he was still breastfeeding and not yet sleeping through the night. The trial court granted joint legal and physical custody of Jay to the parents and set forth a detailed schedule for physical custody and provisions regarding decision-making. As relevant to the issues in this case, the order includes these provisions regarding military service:

g. Should Plaintiff be unable to exercise his custodial time described herein due to travel for work or any form of military duty, including but not limited to: temporary military duty, active duty or deployment, the minor child shall remain in Defendant's custody.
h. The parties shall share jointly in the decisions in reference to the major areas of parenting, as often as possible, and specifically:
i. The parties each have the right to make the day-today decisions for the minor child. In matters of more consequence with long-lasting significance, these issues will be discussed between the parties in an effort to resolve them by mutual agreement. In the event the parties cannot agree, they shall seek assistance from a relevant professional or return to mediation.
ii. The parties shall each provide one another with a current address, email address and telephone number and shall provide notice of any change in this information at least 48 hours prior to such change.

         On 21 May 2018, Father notified Mother via email of his upcoming deployment. Mother and Father discussed attending mediation but could not schedule mediation in time to resolve their custody issues before Father's departure. Father's official orders to report for "active duty as a member of your Reserve Component Unit" of the United States Army were issued on 2 August 2018.[4] He was required to report first to Fort Hood, Texas, on 20 August 2018 for mandatory training prior to deployment, and his mobilization would begin 27 August 2018 and last 400 days. The purpose of his activation was "in support of OPERATION ENDURING FREEDOM- HORN OF AFRICA." The Orders did not allow dependents to accompany Father.

         On 13 August 2018, Father filed a "Motion to Grant Caretaking Authority to Nonparent Due to Deployed Parent" under the UPDCVA with the Orange County District Court. He alleged Stepmother and the children's stepsister and half brother have close and substantial relationships with Elizabeth and Jay and that Stepmother should be granted "caretaking and decision-making authority, or in the alternative, limited contact" with both children.

         Despite Father's deployment date of 20 August 2018, the trial court set the hearing for 22 October 2018. Father filed a petition for a writ of mandamus with this Court to order the trial court to expedite the hearing as required under North Carolina General Statute § 50A-371.[5] On 24 September 2018, this Court granted Father's petition and ordered the trial court to hold a hearing by 8 October 2018. On 28 September 2018, the trial court held a hearing on Father's motion and entered an order on 8 October 2018 denying the motion as to Jay and granting it in part by ordering limited contact only for Elizabeth. Father timely appealed.

         II. Interlocutory Appeal

         The order on appeal is an interlocutory order, since it does not resolve all pending claims and is a temporary order. An order issued under the UDPCVA is by definition a "temporary order" and terminates "60 days from the date the deploying parent gives notice of having returned from deployment to the other parent" or "death of the deploying parent":

A temporary order for custodial responsibility issued under Part 3 of this Article shall terminate, if no agreement between the parties to terminate a temporary order for custodial responsibility has been filed, 60 days from the date the deploying parent gives notice of having returned from deployment to the other parent and any nonparent granted custodial responsibility, when applicable, or upon the death of the deploying parent, whichever occurs first.

N.C. Gen. Stat. § 50A-388(a). "The general rule which has been stated by this Court is that temporary custody orders are interlocutory and unless the order affects a "substantial right of [the appellant] which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits[, ]" the appeal must be dismissed. File v. File, 195 N.C.App. 562, 569, 673 S.E.2d 405, 410 (2009) But all prior cases addressing appeals of temporary custody orders dealt with orders entered under Chapter 50, and in those cases, a permanent order will normally be entered in the near future. See Senner v. Senner, 161 N.C.App. 78, 81, 587 S.E.2d 675, 677 (2003). ("[A]n 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."). Our Court has not previously addressed jurisdiction to review an custodial responsibility order issued under the UDPCVA.[6]

         Father contends this order falls under North Carolina General Statute § 50-19.1, which allows immediate appeal of custody orders even if other claims remain pending in the same action:

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 G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action.

N.C. Gen. Stat. § 50-19.1 (2017).

         We agree that a custodial responsibility order under the UDPCVA is a variety of "child custody" order covered by North Carolina General Statute § 50-19.1. Although Jay's Custody order was a temporary order and issues regarding his permanent custody remain unresolved, the issues regarding his permanent custody under Chapter 50 are independent of Father's claim under the UDPCVA. The order on appeal is technically a "temporary" order, since custodial responsibility orders under the UDPCVA are required to be temporary orders unless the parties agree to entry of a permanent order.[7] See N.C. Gen. Stat. §§ 50A-385-388. But orders for custodial responsibility under the UDPCVA would be essentially non-appealable if we treated them like temporary custody orders under Chapter 50. The order on appeal is a final order addressing all issues raised under the UDPCVA and those issues are independent of the underlying Chapter 50 custody claims, so it is otherwise "a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action." N.C. Gen. Stat. § 50-19.1. In addition, as a practical matter, since a hearing regarding Jay's pending permanent custody could not be done while Father is deployed, if Father were required to wait for resolution of Jay's permanent custody before appealing the custodial responsibility order, the UDPCVA order would be rendered moot. Because the order under the UDPCVA is a final order addressing the UDPCVA claim, we have jurisdiction to review the order under North Carolina General Statute § 50-19.1.

         III. Parties

         We first note that Stepmother has not formally intervened or been made a party to this case.[8] Either parent may file a claim or motion under the UDPCVA. The UDPCVA addresses how and when a "proceeding for a temporary custody order" may be filed. N.C. Gen. Stat. § 50A-370(b) ("At any time after a deploying parent receives notice of deployment, either parent may file a motion regarding custodial responsibility of a child during deployment."). This portion of the statute does not address intervention or adding parties to the case. Later in Article 3, North Carolina General Statute § 50A-375, entitled "Grant of Limited Contact," deals with provisions of the order and provides that "[a]ny nonparent who is granted limited contact shall be made a party to the action until the grant of limited contact is terminated. N.C. Gen. Stat. § 50A-375(b) (emphasis added). "Limited contact" is defined as "[t]he opportunity for a nonparent to visit with a child for a limited period of time. The term includes authority to take the child to a place other than the residence of the child." N.C. Gen. Stat. § 50A-351(11).

         The order on appeal granted Stepmother, a "nonparent" as defined by North Carolina General Statute § 50A-351(11), "limited contact" with Elizabeth, so she should have been made a party to this action "until the grant of limited contact is terminated." N.C. Gen. Stat. § 50A-375(b). We must therefore consider whether we have jurisdiction to consider the issues on appeal, since all "necessary parties" must be joined in an action under North Carolina General Statute § 1A-1, Rule 19:

Rule 19 dictates that all necessary parties must be joined in an action. Rule 19 requires the trial court to join as a necessary party any persons united in interest and/or any persons without whom a complete determination of the claim cannot be made since a judgment without such necessary joinder is void. A party does not waive the defense of failure to join a necessary party; an objection on this basis can be raised at any time. A reviewing court is required to raise the issue ex mero motu to protect its jurisdiction.

Commonwealth Land Title Ins. Co. v. Stephenson, 97 N.C.App. 123, 125, 387 S.E.2d 77, 79 (1990) (emphasis added) (citations, quotation marks, brackets, and ellipsis omitted).

         Under North Carolina General Statute § 50A-370(b), only the parents may bring a claim under the UDPCVA, so Stepmother could not have filed the motion. N.C. Gen. Stat. § 50A-370(b). Under North Carolina General Statute § 50A-375(b), the trial court is directed to make a person to whom limited contact is granted "a party to the action until the grant of limited contact is terminated." N.C. Gen. Stat. § 50A-375(b). "It is well established that 'the word "shall" is generally imperative or mandatory.'" Multiple Claimants v. N. Carolina Dep't of Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d 356, 360 (2007) (quoting State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979)). In addition, "[a] nonparent granted caretaking authority, decision-making authority, or limited contact under this Part has standing to enforce the grant until it is terminated under Part 4 of this Article or by court order." N.C. Gen. Stat. § 50A-376(b). Thus, Stepmother would have standing to enforce the order under North Carolina General Statute § 50A-376(b). The order also specifically directs Stepmother to participate in the visitation schedule for Elizabeth and to "work together" with Mother to ensure that Elizabeth does not miss special events and that she will see her step and half siblings for "major holidays, including Thanksgiving and Christmas."

         We also recognize that in custody cases, our Courts have previously recognized "de facto parties" where a nonparent has been granted custodial rights by a court order and have allowed the "de facto" parties to be formally added as parties even after entry of a court order or on appeal. In Sloan v. Sloan, this Court noted

Moreover, after a trial court has awarded custody to a person who was not a party to the action or proceeding, this Court has held that it would be proper and advisable for that person to be made a party to the action or proceeding to the end that such party would be subject to orders of the court. This may be done even after judgment and by the appellant court when the case is appealed. By filing a motion to intervene in the matter, intervenors were simply requesting to be formally recognized as parties to a child custody action in which they had already been awarded visitation rights. Therefore, the trial court did not err in granting their motion to intervene even after the order determining permanent custody of C.S. was entered.

164 N.C.App. 190, 194-95, 595 S.E.2d 228, 231 (2004) (citation, ellipsis, and brackets omitted).

         Therefore, Stepmother was treated as a "de facto" party based upon the trial court's order granting her limited contact and ordering her to take specific actions, and the fact that the trial court did not formally order her to be added as a party does not impair our jurisdiction. As noted in In re Custody of Branch, it is "proper and advisable" for Stepmother to be "made a party to the action or proceeding to the end that such party would be subject to orders of the court." 16 N.C.App. 413, 415, 192 S.E.2d 43, 45 (1972). "We have held, however, that this may be done even after judgment and by the appellate court when the case is appealed." Id. Based upon North Carolina General Statute § 50A-375, Stepmother should be made a party to this action "until the grant of limited contact is terminated," so we will remand the order on appeal for the trial court to include this provision.

         IV. Standard of Review

         No case has yet addressed the standard of review for custodial responsibility orders under the UDPCVA. The issues presented here are primarily statutory construction issues, which we review de novo:

We review issues of statutory construction de novo. In matters of statutory construction, our primary task is to ensure that the purpose of the legislature, the legislative intent, is accomplished. Legislative purpose is first ascertained from the plain words of the statute. A statute that is clear on its face must be enforced as written. Courts, in interpreting the clear and unambiguous text of a statute, must give it its plain and definite meaning, as there is no room for judicial construction. . . .
In applying the language of a statute, and because the actual words of the legislature are the clearest manifestation of its intent, we give every word of the statute effect, presuming that the legislature carefully chose each word used. Finally, we must be guided by the fundamental rule of statutory construction that statutes in pari materia, and all parts thereof, should be construed together and compared with each other.

Hill v. Hill, ___ N.C.App. ___, ___, 821 S.E.2d 210, 227-28 (2018) (alteration in original) (quoting In re Ivey, ___ N.C.App. ___, ____, 810 S.E.2d 740, 744 (2018)).

         Father challenges none of the trial court's findings of fact as unsupported by the evidence, so where the trial court has correctly interpreted the statute, we review the trial court's conclusions of law to determine if they are supported by the findings of fact. Shipman v. Shipman, 357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003). "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). "An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision." In re N.G., 186 N.C.App. 1, 10-11, 650 S.E.2d 45, 51 (2007).

         V. Caretaking and Decision-Making Authority for Elizabeth

         Just as the underlying custody order provisions for Elizabeth and Jay differ, the trial court's order under the UDPCVA also has different provisions for Elizabeth and Jay. As to Elizabeth, the trial court granted limited contact; as to Jay, the trial court denied Father's motion entirely. We will therefore address the provisions of the order regarding Elizabeth and Jay separately.

         A "Prior Judicial Order" under N.C. Gen. Stat § 50A-373

         Father does not challenge the trial court's findings of fact but argues the trial court erred by denying caretaking authority or decision-making authority as to Elizabeth. The trial court granted only limited contact with Elizabeth to Stepmother. Father argues first that Elizabeth's Consent Order does not "directly address a deployment but only addresses 'Temporary Military Duty' or 'Active Duty.'" He contends that these terms, as used in Elizabeth's Consent Order, refer to his "military activity during his once a month drill or when he is sent away for required military training in preparation for a deployment." Thus, Father argues, since Elizabeth's Consent Order does not address deployment, it is not a "prior judicial order designating custodial responsibility of a child in the event of deployment." N.C. Gen. Stat. § 50A-373(1) (emphasis added). Father contends that the trial court should have considered his claim as to Elizabeth under North Carolina General Statute § 50A-374, which controls in the absence of a "prior judicial order" addressing deployment.

         Mother agrees with Father that Elizabeth's Consent Order "does not specifically refer to the term 'deployment' so it is not a 'prior judicial [order]' as contemplated by N.G. Gen. Stat. § 50A-373(1)." She agrees that" N.C. G.S. § 50A-374 was the governing statute for the trial court to determine whether to grant caretaking and decision-making authority for" Elizabeth and contends the trial court applied it properly since North Carolina General Statute § 50A-374 says the court may grant caretaking authority to a nonparent but does not require that it do so.

         The trial court first made detailed findings of fact regarding the prior orders and various family members, including Stepmother, the children's stepsister, and their half brother. As to Elizabeth, the trial ...


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