In re Ndyaija

• Decision Date: 11 March 2020
• Docket Number: 2018-0153,2018-0398,Nos. 2018-0086,s. 2018-0086
• Citation: 173 N.H. 127,238 A.3d 1047
• Parties: In the MATTER OF Crystal NDYAIJA and Joshua Ndyaija
• Court: New Hampshire Supreme Court

173 N.H. 127

238 A.3d 1047

In the MATTER OF Crystal NDYAIJA and Joshua Ndyaija

Nos. 2018-0086

2018-0153

2018-0398

Supreme Court of New Hampshire.

Submitted: December 16, 2019

Opinion Issued: March 11, 2020

Smith-Weiss Shepard, P.C., of Nashua (Robert M. Shepard on the brief), for the petitioner.

Joshua Ndyaija, self-represented party, by brief.

DONOVAN, J.

In this consolidated appeal, the respondent, Joshua Ndyaija, appeals various orders issued by the Circuit Court (Quigley and Introcaso, JJ.) following the parties' divorce. The respondent argues that the trial court erred by: (1) dismissing his motion for contempt against the petitioner, Crystal Ndyaija; (2) denying his motion regarding parental interference; (3) denying his motion to restrain; (4) modifying his child support obligations for the parties' minor child; (5) denying his motion to modify the parties' parenting plan and permanent stipulation, vacating a provision of the parenting plan, and ordering him to pay the petitioner's attorney's fees; and (6) granting the petitioner's motion to approve daycare enrollment for the child. The respondent also argues that the trial court lacked jurisdiction to make an initial child custody determination under RSA chapter 458-A (2018), and lacked jurisdiction over the divorce action under RSA 458:5 and :6 (2018). We affirm in part, vacate in part, and remand.

I. Factual and Procedural Background

The record supports the following facts. The parties married in July 2012 and lived together in Massachusetts until July 2014, when the petitioner moved to New Hampshire with their child. In May 2015, the petitioner filed a petition for legal separation in the New Hampshire Circuit Court. In her petition, she notified the trial court of an August 2014 court order on a domestic violence-related matter from a Massachusetts district court, but did not provide additional details. In August 2015, the petitioner filed a petition for divorce in the New Hampshire Circuit Court. In that petition, she notified the trial court of her involvement in two court cases relating to custody of the child: (1) a July 2014 matter in a Massachusetts district court that resulted in the issuance of a restraining order which awarded custody of the child to the petitioner but which expired in July 2015; and (2) an action for custody and visitation in a Massachusetts court filed by the respondent, which, the petitioner indicated, was still pending at the time of her divorce petition. The trial court issued a temporary child custody order, which provided that the child live primarily with her mother and allowed the respondent to have supervised visits with the child for two days a week.

In May 2016, a Marital Master (DalPra, M.) recommended, and the Trial Court (Quigley, J.) approved, a final divorce decree, parenting plan, partial permanent stipulation, and uniform support order. The parenting plan required the child to reside primarily with the petitioner and provided the respondent with parenting time during weekends, vacations, and certain holidays. It further required, under paragraph G of the parenting plan, that the parties meet "as often as necessary for the benefit of the child" to review and adjust the parenting plan, and noted that the parties "agree to meet in March, 2017 to revise this plan before [the child] goes to school." Paragraph H of the parenting plan set forth dispute resolution procedures in the event a disagreement between the parties arose, stating:

Parties shall attempt to resolve any disagreement first through email exchanges. If there has been no resolution within fourteen (14) days, the parties shall seek the assistance of an individual(s), [and] each party shall have the option of bringing one person to a meeting to try to resolve the issue. That meeting shall occur within fourteen (14) days of notice by one party that an email resolution has not been reached. In the event the meeting does not resolve the issue the parties may seek the assistance of the Court.

The uniform support order required the respondent to pay $50 per month in child support and provided that the order shall be reviewed upon either party obtaining new employment. The permanent stipulation required both parties to obtain life insurance for the benefit of the child if available through their employers.

In August 2016, the respondent filed a contempt motion alleging, inter alia, that the petitioner failed to adhere to the dispute resolution procedures set forth in paragraph H of the parenting plan. His motion set forth several unresolved disputes and alleged that the petitioner failed to respond to emails or meet in person within 14 days as required by paragraph H. The petitioner objected to the motion. The Trial Court (Introcaso, J.) approved an order recommended by a Marital Master (DalPra, M.) dismissing the motion. The respondent appealed to this court and we vacated and remanded the decision because the trial court's order addressed the petitioner's compliance with paragraph G, but not paragraph H.

Shortly thereafter, in September 2017, the respondent filed two motions with the trial court — a motion "to restrain" and a motion regarding "parental interference" — in which he requested the court to order the petitioner to stop and retract "slanderous allegations" against him and "restrain[ ] her from doing any further harm to [his] livelihood." Following a hearing, the Marital Master (Dalpra, M.) recommended, and the Trial Court (Quigley, J.) approved, an order dismissing the contempt motion and denying his motion to restrain and his motion regarding parental interference.

Thereafter, the respondent and the petitioner filed separate motions to modify the respondent's child support obligation after the respondent obtained new employment. The respondent sought termination or a reduction of the child support obligation, while the petitioner sought a modification that took into account the respondent's new source of income. Following a hearing, the Trial Court (Introcaso, J.) issued a new uniform support order that increased the respondent's child support obligation to $274 per week. The respondent requested the court to deviate from the child support guidelines, but the trial court found "no justification for an adjustment." See RSA 458-C:5 (Supp. 2019). The order also required the respondent to pay an arrearage that had accrued since September 18, 2017, the date he filed his motion to modify his child support obligation, which the trial court determined to be $5,149.38. The order required the respondent to pay the weekly child support and arrearage by immediate income assignment to the Division of Child Support Services (DCSS). The respondent filed a motion for reconsideration, which the court denied.

Subsequently, the respondent moved to modify the parenting plan and permanent stipulation. He requested that the court modify the parenting plan to, in part, award him additional parenting time with the child, "hold [the] Petitioner accountable for dishonoring" the requirement in paragraph G to meet to review and adjust the parenting plan, and remove the life insurance requirement in the permanent stipulation because it violated his religious beliefs. The petitioner objected, and thereafter filed a motion to allow her to enroll the child in private daycare and kindergarten in New Hampshire, to be paid for solely by her. Following a hearing on these matters, the Trial Court (Introcaso, J.) denied the respondent's requests, sua sponte vacated paragraph G of the parenting plan, and, finding the respondent's motion to be frivolous, awarded attorney's fees to the petitioner. The trial court also granted the petitioner's request allowing her to enroll the child in private daycare and kindergarten. The respondent filed a motion for reconsideration, which the court denied.

The respondent filed three separate appeals of these orders, which we consolidated, setting forth numerous challenges to the merits of the trial court's decisions. The respondent also makes several arguments challenging, for the first time on appeal, the trial court's jurisdiction to rule on these issues, including the court's jurisdiction over the child custody proceeding under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See RSA ch. 458-A.

Pursuant to the UCCJEA, a court in New Hampshire "may not exercise its jurisdiction" over a child custody case "if, at the time of the commencement of the proceeding," a child custody proceeding "has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum." RSA 458-A:17, I. Because the petitioner's divorce petition alerted the trial court to a pending child custody proceeding commenced in a Massachusetts court, and nothing in the appellate record showed that Massachusetts had terminated the proceeding or ruled that New Hampshire was a more appropriate forum, we remanded the issue of jurisdiction under the UCCJEA to the trial court to make findings and rulings as to whether it had jurisdiction when the petitioner commenced the child custody proceeding in New Hampshire. See RSA 458-A:17, II. We noted that, even though the respondent raises this issue for the first time on appeal, the UCCJEA governs the court's subject matter jurisdiction to make or modify a child custody determination, and, therefore, jurisdiction under the UCCJEA may be challenged at any time during the proceeding. See In re Guardianship of K.B., 172 N.H. 646, 647–48, 233 A.3d 328 (2019). We retained jurisdiction of the remaining issues on appeal.

On remand, the trial court issued an order finding that the Massachusetts court dismissed the child custody proceeding on October 21, 2015, and, therefore, New Hampshire "had subject matter jurisdiction." The respondent filed a motion...