Waly v. Alkamary

• Decision Date: 17 August 2021
• Docket Number: COA19-1054
• Court: North Carolina Court of Appeals
• Parties: MOMEN WALY, Plaintiff, v. SOHA ALKAMARY, Defendant.

2021-NCCOA-429

MOMEN WALY, Plaintiff,
v.
SOHA ALKAMARY, Defendant.

No. COA19-1054

Court of Appeals of North Carolina

August 17, 2021

Heard in the Court of Appeals 14 April 2020.

Appeal by defendant from order entered 27 June 2019 by Judge Edward A. Pone in District Court, Cumberland County Cumberland County, No. 16 CVD 5260.

Lewis, Deese, Nance & Ditmore, LLP, by Renny W. Deese, for plaintiff-appellee.

John M. Kirby, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Mother appeals a permanent custody order granting primary custody of her daughter to Father. For the reasons discussed below, we hold the trial court had jurisdiction to enter the custody order under the Uniform Child Custody Jurisdiction and Enforcement Act. We also hold that where Mother did not file a proper motion for a stay of the North Carolina proceedings, and the trial court did not enter an order ruling on this issue, we have no jurisdiction to consider this argument. The trial court's order requiring the parties to communicate for purposes of coordination of visitation and parenting through Our Family Wizard after Mother's sister was unavailable to serve as a go-between did not fail to give full faith and credit to the New Jersey domestic violence protective order. As Mother failed to authenticate the evidence she contends the trial court should have admitted, the trial court did not err in excluding the evidence. As the trial court's findings of fact were supported by the evidence, we affirm the trial court's order.

I. Background

¶ 2 Mother and Father married in January 2013 and had one daughter, Sandy^[1], in February of 2014. Father filed a complaint for child custody, child support, and attorney withdrawal in Cumberland County District Court on 19 July 2016. On 29 August 2016, Mother filed an answer and counterclaims for emergency custody, a restraining order, custody, child support, alimony, and attorney's fees. Mother alleged that she had traveled to New Jersey with Sandy on 4 June 2016 to visit family and was notified by Father one week later that he wanted to end their marriage. Thereafter, Mother and Sandy moved to New Jersey and Father relocated to Florida.

¶ 3 The trial court entered a temporary child support order directing Father to pay Mother $869.60 per month in child support on 14 October 2016 and a temporary child custody order on 18 October 2016. The parents were awarded joint legal custody with Mother having primary custody and Father having secondary physical custody by way of phased-in visitation. The order established the specific dates for Father's physical visitation with Sandy; granted Father Facetime/Skype/Webcam visitation every Tuesday, Thursday, and Sunday at 6:00 p.m.; and directed Mother and Father to exchange their respective addresses and phone numbers. The order also included a finding "[t]hat the parties should consider that since neither currently resides in Cumberland County, North Carolina: Cumberland County, North Carolina is no longer the most convenient forum for custody litigation."

¶ 4 The trial court entered an interim equitable distribution and postseparation support order on 23 November 2016. On 30 January 2017, Mother filed a motion for contempt alleging that Father violated both the temporary child support order and the interim equitable distribution and postseparation support order.

¶ 5 On 23 February 2017, Father posted on Facebook: "Nothing is ever forgotten, nothing is ever forgiven. Everything will be remembered, everything will be avenged." In response, Mother filed for a temporary restraining order in New Jersey and advised the New Jersey court of the pending custody case in North Carolina and the temporary custody order. On 11 April 2017, the New Jersey trial court entered a final restraining order ("DVPO") barring Father "from having any oral, written, personal, electronic, or other form of contact or communication with:" Mother. Under the DVPO, Father's visitation with Sandy remained "as scheduled in North Carolina order" with the additional requirements that Father coordinate Facetime visitation with Mother's sister, and the parties exchange Sandy at the New Bridge Police Department.

¶ 6 On 20 July 2017, Father filed a motion for contempt alleging that Mother refused to allow him visitation and Facetime access with Sandy. Father filed an amended motion for contempt on 1 August 2017 and included an additional allegation that Mother refused to provide Father with the phone number and address of her new residence. On 15 August 2017, Mother filed motions for emergency relief, contempt, and attorney's fees.

¶ 7 On 21 December 2017, the trial court entered a holiday visitation order, which awarded Father visitation with Sandy from 21 December to 23 December 2017. The holiday visitation order referenced the DVPO's minor modifications to Father's visitation and found that "[o]therwise, the New Jersey court deferred the terms of [Father's] visitation to this court and the prior order entered by this court." On 26 December 2017, Father filed a motion for contempt, which alleged that Mother's refusal to allow him visitation with Sandy, coupled with her failure to provide her sister's contact information, violated the holiday visitation order. Father also alleged that, in contravention of prior orders, Mother had relocated and refused to provide Father with the address or phone number.

¶ 8 Around 8 January 2018, ^[2] Mother filed a verified complaint for divorce in New Jersey seeking divorce, alimony, child support, child custody, equitable distribution, and attorney's fees. The complaint included the allegations required by the Uniform Child Custody Jurisdiction and Enforcement Act-respectively North Carolina General Statute § 50A-209 ("Information to be submitted to court") and New Jersey Statute Annotated § 2A:34-73(a)(1) (same)-regarding other proceedings between the parties:

There have been no previous proceedings between [Mother] and [Father] respecting the marriage or its dissolution or respecting the division of property of the parties in any Court except FV-12-1444-17 in connection with a Final Restraining Order issued by this Court in favor of [Mother] against [Father], A-4086-16 in connection with [Father's] appeal of the Final Restraining Order, and File # 16CVD5260 in Cumberland County District Court, NC

Specifically, Mother requested "[j]udgment against [Father]" on the various claims, including: "[f]or child support;" "[f]or custody of the unemancipated child;" and "[r]egistering and/or granting full faith and credit to the Orders entered in North Carolina[.]"

¶ 9 Mother mailed a letter dated 12 January 2018 to the Cumberland County District Court Clerk's Office entitled "motion to stay North Carolina proceeding." In the letter, Mother explained that she had filed a divorce action in New Jersey and "[a]s a single mom, it's been a financial burden on [her] to still have an attorney in North Carolina, and for the added cost of travel to North Carolina to represent [herself] in court." She asked for the trial court to "please accommodate [her] request to stop all proceedings in North Carolina." The letter was not file-stamped but according to the transcript, Mother handed it to the trial court. There is no indication the letter was served upon Father's counsel until it was discussed during the hearing on 5 March 2018.

¶ 10 On 5 March 2018, the trial court held a hearing on child custody, child support, and contempt. The trial court engaged in an extensive discussion with the parties regarding the issue of jurisdiction, Mother's "motion to stay" letter, and Mother's New Jersey divorce complaint. The trial court stated, "I'm not staying anything here" and [a]s far as I'm concerned, North Carolina law is the law until I say it[']s not or until I talk to a judge up there and we determine what to do." The trial court told Mother to give Father her sister's contact information and to have her attorney in New Jersey contact Father's attorney.

¶ 11 On 14 November 2018, Mother filed her second complaint in New Jersey seeking divorce, child support, back child support, alimony, and custody. The second New Jersey complaint was filed pro se on a form complaint entitled "Form 1D: Complaint for Divorce/Dissolution Based on Irreconcilable Differences." Paragraph 11 of the form instructed: "List any other court cases where you or your spouse/civil union partner are plaintiffs or defendants, such as cases for adoption, bankruptcy, personal injury, child support, custody, domestic violence, etc." Mother listed only "Final restraining order A-4086-16I1," referring to the New Jersey DVPO. She also certified that "[t]he matter in controversy in the within action is not the subject of any other action pending in any court or of a pending arbitration proceeding, nor is any such court action or arbitration proceeding presently contemplated."

¶ 12 On 7 January 2019, Father filed a motion for contempt and a motion for modification of custody. Father alleged that Mother failed to produce verification of her monthly expenses and Sandy's medical records, in violation of a prior order, and alleged a substantial change in circumstances mandated an emergency order awarding Father primary custody of Sandy. Father alleged that Mother neglected Sandy, interfered with Father's relationship with Sandy, failed to obtain necessary medical care for Sandy, was not stable, and was unable to provide for Sandy's needs.

¶ 13 On 5 March 2019, the New Jersey trial court entered an amended DVPO on remand from the appellate division reflecting "that the sole predicate act of domestic violence serving as the basis for the final restraining order . . . is harassment[.]" (Original in all caps.) The no-contact provision in the amended DVPO remained unchanged from the original DVPO. Specifically, the Amended DVPO included the following provision...