Khaja v. Husna

• Decision Date: 06 October 2015
• Docket Number: No. COA14–701.,COA14–701.
• Citation: 243 N.C.App. 330,777 S.E.2d 781
• Court: North Carolina Court of Appeals
• Parties: Dabeeruddin KHAJA, Plaintiff, v. Fatima HUSNA, Defendant.

243 N.C.App. 330

777 S.E.2d 781

Dabeeruddin KHAJA, Plaintiff,

v.Fatima HUSNA, Defendant.

No. COA14–701.

Court of Appeals of North Carolina.

Oct. 6, 2015.

Sandlin Family Law Group, Raleigh, by Deborah Sandlin and Debra Griffiths, for plaintiff-appellee.

Manning, Fulton & Skinner, P.A., Raleigh, by Michael S. Harrell, for defendant-appellant.

STROUD, Judge.

Defendant, former wife, appeals several judgments, a preliminary injunction, and orders regarding her divorce and alimony obligations to plaintiff, her former husband. For the following reasons, we affirm in part and reverse and remand in part.

I. Background

This incredibly complex case, with a record, a supplemental record, and transcripts totaling over 3,500 pages, arises from a very short marriage. Unfortunately, this case is not the only litigation spawned by the two parties, as defendant ("wife") has also filed a separate tort action against plaintiff ("husband") in Superior Court, Wake County and brought both criminal charges and a civil action against him in India. Perhaps it goes without saying that the parties agree on very little, but it is undisputed that the parties met through an Indian marriage website, began communicating in June of 2007, and were married in India on 19 October 2007. Sometime in 2008 they separated, though the exact date of separation is disputed.

The issues relevant to this appeal arise from husband's divorce and alimony claim against wife. On 24 October 2011, husband filed a complaint in Wake County seeking an absolute divorce, alimony, and attorney fees. On 3 February 2012, wife filed "MOTIONS AND ANSWER" in which she moved to dismiss husband's claims based upon subject matter jurisdiction and failure to state a claim upon which relief could be granted, arguing that the parties were no longer married due to an annulment in November of 2011 in India. Wife also raised various affirmative defenses, including the annulment; constructive and actual abandonment; "physical[ ], sexual[ ] and psychological[ ] abuse[ ] ... [due to] cruel and barbarous treatment endangering her life and well being [;]" "indignities to [wife] as to render her condition intolerable and her life burdensome[;]" a lie that "induce[d] her into entering" the marriage; "fraudulent[ ] induce[ment] ... in order to gain entry into the United States and to procure immigration through her[;]" and "fraud and unclean hands ... for alimony" purposes. From this point forward, we will outline the chronology of this case by reviewing the judgments, preliminary injunction, and orders on appeal.

A. Preliminary Injunction

On 4 December 2012, the trial court issued a "TEMPORARY RESTRAINING ORDER" ("TRO") on behalf of husband due to (1) ongoing disputes between the parties regarding discovery, particularly wife's failure to turn over electronic devices such as computers and flash drives, and (2) wife's "pursuing false criminal charges against [husband] in India, having [husband's] family members arrested," ... "attempt[ing] to have [husband's] medical license revoked [,] "effort to interfere with [husband's] immigration status[,]" and "false police reports to the Morrisville Police Department[,]" which ultimately culminated in husband being arrested by Immigration and Custom Enforcement

and held for 21 days as a result of [wife's] interference and lies. [Husband's] passport has been impounded as a result of her lies and he was placed on Interpol's Most Wanted because of her lies which he has only recently been able to rectify after substantial work and attorneys' fees.

The TRO ordered wife to immediately

surrender ... all computers, laptops, sim cards, flash drives, cd drives, hard drives and other modes of electronic storage equipment, in [wife's] possession, custody or control or that [wife] used at any time between August 200[ ]¹ to the present ... by 5:00 pm on Wednesday, December 5, 2012.

2. [Wife] is to immediately cease any harassment (as defined by NCGS § 14–277.3A(b)(2) ) or interference with [husband] or his family, including but not limited to contacting the State Department, Department of Homeland Security, Immigration Services, any Congressman's office, any governmental agency in India regarding [husband]. [Wife] is also prohibited from submitting any further documentation to any Indian official without a court order allowing her to do so. This prohibition applies to both direct and indirect harassment and interference. [Wife] is to tell any person acting on her behalf to stop all such contact.

The TRO set "[t]his matter" for hearing on 13 December 2012.

As set by the TRO, on 13 December 2012, the trial court held the hearing, and on 3 January 2013, based on the 13 December 2012 hearing, the trial court entered a Preliminary Injunction. The Preliminary Injunction included extensive findings of fact regarding the inception of the parties' relationship, the relationship's demise, wife's efforts to have husband arrested and deported, the ensuing litigation outside of this case, and wife's repeated refusals to comply with discovery requests and orders.²

Despite the title of the order, it was not a Preliminary Injunction in the usual sense of the term since it mainly addressed discovery issues. See Jeffrey R. Kennedy, D.D.S. v. Kennedy, 160 N.C.App. 1, 8, 584 S.E.2d 328, 333 (2003), ("A preliminary injunction is an extraordinary measure taken by a court to preserve the status quo of the parties during litigation. It will be issued only (1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff's rights during the course of litigation." (citation and quotation marks omitted)). Essentially, the Preliminary Injunction addressed wife's noncompliance with the discovery process; in other words, had wife complied with discovery requests and orders, no preliminary injunction would have been needed. The Preliminary Injunction required wife to preserve her "electronic devices ..., including but not limited to cellular phones, smart phones, laptops, computers, storage devices such as flash drives or external hard drives, table[t]s, disks, etc. [,]" "provide her email addresses and passwords[,]" to Mr. Ellington, an expert in computer forensics and analysis, and "[b]y December 20, 2012, ... submit an affidavit ... detail[ing] ... any [and] all communication that [wife] has had with any governmental agency that may directly or indirectly impact [husband]."³ The Preliminary Injunction set another hearing on 3 January 2013 for consideration of "remaining discovery issues [and] any issues regarding the implementation of this order."

B. Judgment for Absolute Divorce

On 11 December 2012, exactly one week after the TRO was entered and two days before the hearing which would result in the Preliminary Injunction, the trial court entered a "JUDGMENT FOR ABSOLUTE DIVORCE [.]" On 4 January 2013, the trial court entered an "AMENDED JUDGMENT FOR ABSOLUTE DIVORCE" ("Divorce Judgment") to correct a "typographical error [.]" The Divorce Judgment noted that wife "withdrew her motion to dismiss for lack of subject matter jurisdiction based on lack of domicile of either party and proceeded with her Rule 12(b)(6) claim asserting the affirmative defense of an Indian annulment."

The trial court made several findings of fact, including the following which are relevant to the issues raised on appeal:

5. .... This court declines to recognize the Indian annulment decree under the principles of comity in that the petition was filed at a time when neither [husband] nor [wife] was a domiciliary of India....

6. The parties were married on October 19, 2007. Plaintiff left the marital residence on February 9, 2008 when Defendant asked him to leave. The parties worked on reconciling the marriage for sometime. Defendant made the decision to remain separate and apart from Plaintiff beginning in September 2008. The parties have in fact remained separate and apart since September 2008.

C. Order for Sanctions and Injunction

As set by the Preliminary Injunction, on 3 January 2013, the same day the Preliminary Injunction was entered, the trial court held a hearing regarding "[husband's] request for an injunction and for sanctions related to spoliation of evidence and non-production of discovery[;]" on 22 May 2013, the trial court entered the resulting "ORDER FOR SANCTIONS AND INJUNCTION" ("Sanctions Order"). The Sanctions Order has extensive findings of fact, including findings of fact regarding the contents of wife's provided electronic devices, her continued failure to fully comply with the prior orders regarding discovery, and her extensive interference in husband's life. The trial court concluded that wife had no "legal merit" in her objections regarding discovery compliance and that there was "no just cause" for wife's failure to comply with discovery requests. The trial court ordered:

1. [Wife] is hereby precluded from presenting any evidence regarding any marital fault on the part of [husband].

2. [Wife] is hereby precluded from providing any testimony that is not solicited by [husband's] attorney regarding any contact or communication with any third party or third party agency regarding [husband].

3. [Wife] is hereby precluded from presenting any evidence regarding [husband's] earning capacity. [Wife] may only present evidence regarding [husband's] financial need for alimony.

4. [Wife] may not solicit testimony from any witness that she has not fully disclosed to [husband].

It is important to note, that like the Preliminary Injunction, the "injunction" portion of the Sanctions Order addresses discovery issues. Wife was not actually "enjoined" from any activity but rather was ordered to comply with discovery and sanctioned for not having already done as ordered. The trial court also noted that "[t]he issue of attorneys'...