243 N.C. App. 233
N.C. Ct. App.2015Background
- Parties: Mother (Emily Burger) lives in Brunswick County, NC; Father (Matthew Smith) is a Canadian citizen living/working long-term in Malawi as a missionary. The parties married (ceremony in Malawi and NC) and had one child, born in the U.S. in Jan. 2013.
- Child lived in Malawi with parents until ~6 months old; mother returned to NC with the child July 2013 and later sought separation. Father continued to work in Malawi/Canada and sought visitation/custody.
- Procedural posture: Mother filed for custody Jan. 2014 seeking sole custody and limits on father’s overnight visits and any travel to Malawi. Trial court issued a temporary order (May 2014) giving mother primary physical custody and father secondary custody with visitation (no travel to Malawi during temporary order).
- At the permanent custody hearing (Aug. 2014) the court awarded joint legal custody, mother primary physical custody, father secondary custody with visitation; the court allowed the father discretion to exercise visits in Canada or Malawi (with health/safety precautions and vaccination requirements).
- Mother appealed only the visitation-related aspects: (1) permitting the father to take the child to Malawi for visitation; and (2) the long rotating visitation schedule (one month with father followed by two months with mother; different regime after school begins and summer/winter/spring breaks).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by allowing father discretion to exercise visitation in Malawi | Burger argued the court failed to make required ultimate findings that travel to Malawi is in the child’s best interest and did not adequately address safety/health risks | Smith pointed to the parties’ history (child conceived/lived in Malawi, father’s long experience there) and that tailored precautions were ordered; visitation could aid parent–child relationship | Court affirmed: findings (including risks and safety measures) support allowing visits in Malawi; court need not declare travel per se "in the child’s best interest" but must fashion a custody plan suited to unusual facts |
| Whether the visitation schedule (1 month with father / 2 months with mother; change after school starts) was an abuse of discretion | Burger argued the schedule was arbitrary and harsh, potentially disruptive to child’s home life and future activities | Smith argued the unusual international circumstances required a nontraditional schedule to preserve meaningful contact | Court affirmed: schedule was a reasoned exercise of broad trial-court discretion to foster parent–child relationship given parties’ living locations; future modification remains available upon changed circumstances |
| Whether the trial court failed to make proper ultimate findings under Rule 52 and related statutory law | Burger contended some findings were mere witness recitations and insufficient to support conclusions regarding visitation/Malawi travel | Court emphasized Rule 52 requires ultimate, material findings not all evidentiary facts; here findings addressed parties’ characteristics, risks, and safety precautions | Court held findings were sufficient to support conclusions of law about custody/visitation |
| Whether relocation/visitation to Malawi should be treated under permanent-relocation standards | Burger asked court to apply relocation factors | Smith and court treated short-term visitation differently from permanent relocation; applied best-interest analysis within context | Court declined to treat the issue as a permanent relocation; best-interest custody framework and findings were sufficient |
Key Cases Cited
- Barker v. Barker, 745 S.E.2d 910 (N.C. Ct. App.) (standard of review for bench trials and weight of findings)
- Quick v. Quick, 290 S.E.2d 653 (N.C. 1982) (Rule 52 requires ultimate facts, not all evidentiary details)
- Pulliam v. Smith, 501 S.E.2d 898 (N.C.) (trial court’s broad discretion in custody matters)
- White v. White, 324 S.E.2d 829 (N.C.) (abuse of discretion standard in custody)
- Montgomery v. Montgomery, 231 S.E.2d 26 (N.C. Ct. App.) (judgment must contain findings supporting fit-person and best-interest conclusions for visitation)
- Carpenter v. Carpenter, 737 S.E.2d 783 (N.C. Ct. App.) (custody order must resolve material disputed issues)
- Steele v. Steele, 244 S.E.2d 466 (N.C. Ct. App.) (findings may concern characteristics relevant to child welfare)
- Shipman v. Shipman, 586 S.E.2d 250 (N.C.) (modification permissible on showing changed circumstances)