“Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” (citations omitted)
How later courts described this case
- “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” (citations omitted)
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-429
No. COA19-1054
Filed 17 August 2021
Cumberland County, No. 16 CVD 5260
MOMEN WALY, Plaintiff,
v.
SOHA ALKAMARY, Defendant.
Appeal by defendant from order entered 27 June 2019 by Judge Edward A.
Pone in District Court, Cumberland County. Heard in the Court of Appeals 14 April
2020.
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
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Opinion of the Court
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, Sandy1,
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
1 A pseudonym is used.
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Opinion of the Court
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
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Opinion of the Court
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.
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Opinion of the Court
¶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
2 The complaint in the record does not have a file stamp and does not indicate the date it was
signed. We glean 8 January 2018 from subsequent testimony.
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2021-NCCOA-429
Opinion of the Court
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
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Opinion of the Court
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 regarding “Parenting time (visitation)”: “Parenting will be the
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same as scheduled in North Carolina order. Pick up/drop off at Old Bridge PD.
[Father] to text [Mother’s] sister (Sally Alkamary) regarding parenting time only. CS
shall be as per North Carolina order.” (Original in all caps.) Based upon the record
before this Court, the New Jersey court did not change any of the provisions of the
DVPO relevant to visitation, did not contact the trial court in North Carolina, and
did not make any indication of any proceeding or issue regarding child custody
pending in the New Jersey court.
¶ 14 On 11 and 12 March 2019, the trial court held a hearing on termination of post
separation support, alimony, and equitable distribution. The trial court entered an
order on 9 May 2019. Mother and Father stipulated to the terms of equitable
distribution, termination of postseparation support, and dismissal of Mother’s
alimony claim. Father was awarded Facetime visitation with Sandy on Monday,
Wednesday, and Friday between 7:30 and 8:30 p.m. and physical visitation with her
13-14 March 2019 and 16-22 April 2019. The trial court continued the custody
hearing until 14 May 2019, finding that “North Carolina has continuing jurisdiction
of the custody matters and has instructed the parties to file the necessary motions in
New Jersey to clarify the New Jersey [DVPO] and to ensure that the parties are
allowed contact only as it relates to the health and welfare of the minor child.” As a
result, in order “to have clarification with regard to the provisions of the New Jersey
[DVPO] which prohibit any contact between these parties[,]” the trial court postponed
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Opinion of the Court
entering judgment on custody until 14 May 2019.
¶ 15 Following the 14 May 2019 hearing on custody, the trial court entered an order
on 14 June 2019. The trial court found that on 11 and 12 March 2019 it had heard
evidence regarding custody and had given “to the parties specific instructions to file
the necessary motions in New Jersey to clarify the New Jersey order and to ensure
that the parties are allowed contact only as it relates to the health and welfare of the
minor child.” Despite these instructions, however, the trial court found that “there
has been no hearing or subsequent New Jersey order to address” the provisions of the
New Jersey Amended DVPO, which prevent Father from any contact with Mother.
The court noted its concern that Mother “may and can legally use the provisions of
the protective order from New Jersey that she sought and obtained to legally shield
[Father] from contact with the minor child and to further alienate the child from
[Father].” The trial court also found that it received information that Mother’s sister
no longer wanted to facilitate Father’s visitation with Sandy. The court ordered
Mother and Father to appear before the court on 24 June 2019 for entry of judgment
and directed Mother to bring Sandy to Cumberland County on that date “so that the
child can be in the care of [Father] for an extended visitation[.]”
¶ 16 Following the 24 June 2019 hearing, the trial court entered a permanent
custody order. The trial court concluded it was in Sandy’s best interest that Father
have primary physical custody and Mother have secondary custody in the form of
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Opinion of the Court
visitation. In regard to the DVPO, the trial court found that it was in Sandy’s best
interest “for the parties to have contact for the purpose of facilitating visitation and
to discuss the welfare of the minor child.” (Original underlined.) Mother appeals.
II. Motion to Dismiss
¶ 17 On 30 January 2020, Father filed a motion to dismiss Mother’s appeal for
alleged violations of North Carolina Appellate Rules 7(a)(1) and 28(b)(6). Father
argues that Mother’s brief “fails to properly cite in the Record the findings or
conclusions the trial court made allegedly unsupported by the evidence in violation
of Rule 7(a)(1)” and “fails to state a Standard of Review for each issue presented
(except the first issue presented) in violation of Rule 28(b)(6).”
¶ 18 As an initial matter, we note North Carolina Appellate Rule 7(a)(1)3 was
deleted in 2017. As a result, Mother could not have violated this rule. See generally
N.C. R. App. P. 7(a)(1) (2015). As to Father’s second argument, North Carolina
Appellate Rule 28(b)(6) provides in pertinent part:
The argument shall contain a concise statement of the
applicable standard(s) of review for each issue, which shall
appear either at the beginning of the discussion of each
issue or under a separate heading placed before the
beginning of the discussion of all the issues.
3 Prior to its deletion, Appellate Rule 7(a)(1) stated, “[i]f the appellant intends to urge on
appeal that a finding or conclusion of the trial court is unsupported by the evidence or is
contrary to the evidence, the appellant shall cite in the record on appeal the volume number,
page number, and line number of all evidence relevant to such finding or conclusion.” N.C.
R. App. P. 7(a)(1) (2015).
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The body of the argument and the statement of applicable
standard(s) of review shall contain citations of the
authorities upon which the appellant relies. Evidence or
other proceedings material to the issue may be narrated or
quoted in the body of the argument, with appropriate
reference to the record on appeal, the transcript of
proceedings, or exhibits.
N.C. R. App. P. 28(b)(6). Mother’s brief contains a “standard of review” section
containing the applicable standard of review for some, but not all, of the issues she
advances before this Court. Although “[v]iolation of [Rule 28(b)(6)] may result in
dismissal[,]” State v. Parker, 187 N.C. App. 131, 135, 653 S.E.2d 6, 8 (2007) (citation
omitted), “[w]e also note that our Rules of Appellate Procedure allow for the
imposition of less drastic sanctions,” Id. (citation omitted). Any alleged violations do
not impair this Court’s ability to review Mother’s arguments, so “[i]n this instance,
we elect not to take any action.” Wilson v. Pershing, LLC, 253 N.C. App. 643, 649,
801 S.E.2d 150, 155 (2017).
III. UCCJEA
¶ 19 Mother argues that the trial court “lost jurisdiction because the parents and
the child relocated out of North Carolina.” (Original in all caps.) Alternatively,
Mother contends that the trial court should have stayed the proceedings in North
Carolina and never proceeded to the custody trial and permanent custody award.
¶ 20 The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)
has been codified in North Carolina under Chapter 50A of the North Carolina General
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Opinion of the Court
Statutes. It “provides a uniform set of jurisdictional rules and guidelines for the
national and international enforcement of child-custody orders.” Hamdan v.
Freitekh, 271 N.C. App. 383, 386, 844 S.E.2d 338, 341 (2020) (citation omitted). The
“Official Comment”4 to North Carolina General Statute § 50A-101 identifies the
purposes of the UCCJEA:
(1) Avoid jurisdictional competition and conflict with courts
of other States in matters of child custody which have in
the past resulted in the shifting of children from State to
State with harmful effects on their well-being;
(2) Promote cooperation with the courts of other States to
the end that a custody decree is rendered in that State
which can best decide the case in the interest of the child;
(3) Discourage the use of the interstate system for
continuing controversies over child custody;
(4) Deter abductions of children;
(5) Avoid relitigation of custody decisions of other States in
this State;
(6) Facilitate the enforcement of custody decrees of other
States;
Official Comment to N.C. Gen. Stat. § 50A-101 (2019).
A. Initial Child Custody Determination
4 “This Court has noted that the commentary to a statutory provision can be helpful in some
cases in discerning legislative intent.” Parsons v. Jefferson-Pilot Corp., 333 N.C. 420, 425,
426 S.E.2d 685, 689 (1993).
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Opinion of the Court
¶ 21 Mother argues that the trial court did not have jurisdiction under the UCCJEA
to enter the permanent custody order because after the filing of the action and entry
of the first temporary custody order, she moved to New Jersey and Father moved to
Florida.
¶ 22 “Whether the trial court has jurisdiction under the UCCJEA is a question of
law subject to de novo review.” In re J.H., 244 N.C. App. 255, 260, 780 S.E.2d 228,
233 (2015) (citation omitted). North Carolina General Statute § 50A-201, which
addresses jurisdiction for initial child custody determinations, provides in pertinent
part:
(a) Except as otherwise provided in G.S. 50A-204, a court
of this State has jurisdiction to make an initial child-
custody determination only if:
(1) This State is the home state of the child on the
date of the commencement of the proceeding, or was
the home state of the child within six months before
the commencement of the proceeding, and the child is
absent from this State but a parent or person acting
as a parent continues to live in this State[.]
N.C. Gen. Stat. § 50A-201 (emphasis added).
¶ 23 The UCCJEA defines “‘[h]ome state’” as “the state in which a child lived with
a parent or a person acting as a parent for at least six consecutive months
immediately before the commencement of a child-custody proceeding.” N.C. Gen.
Stat. § 50A-102(7). “‘Initial determination’” is defined as “the first child-custody
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Opinion of the Court
determination concerning a particular child.” N.C. Gen. Stat. § 50A-102(8). “‘Child-
custody determination’” is defined as “a judgment, decree, or other order of a court
providing for the legal custody, physical custody, or visitation with respect to a child.
The term includes a permanent, temporary, initial, and modification order.” N.C.
Gen. Stat. § 50A-102(3). “‘Child-custody proceeding’” is defined as “a proceeding in
which legal custody, physical custody, or visitation with respect to a child is an issue.”
N.C. Gen. Stat. § 50A-102(4). “‘Commencement’” is defined as “the filing of the first
pleading in a proceeding.” N.C. Gen. Stat. § 50A-102(5).
¶ 24 Here, the “commencement” of the proceeding was the filing of Father’s
complaint for child custody in Cumberland County on 19 July 2016. Mother then
filed counterclaims, including a custody claim, in the Cumberland County action. At
the “commencement” of this “child custody proceeding,” North Carolina was clearly
the “home state” of the child, as the child had resided in North Carolina for more than
six months. N.C. Gen. Stat. § 50A-102 (4), (5), and (7). Mother does not dispute that
North Carolina was the home state at the commencement of the proceedings; she
contends the trial court “lost jurisdiction after it issued the temporary custody order
and all of the parties permanently left the State for more than six months.”
¶ 25 However, “[o]nce jurisdiction of the [trial] court attaches to a child custody
matter, it exists for all time until the cause is fully and completely determined.” In
re Baby Boy Scearce, 81 N.C. App. 531, 538-39, 345 S.E.2d 404, 409 (1986) (citations
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Opinion of the Court
omitted). Here, the custody action was commenced in North Carolina. Even though
Father, Mother, and child all moved out of the state shortly after the initiation of the
suit, under the circumstances of this case North Carolina retained its jurisdiction
under the UCCJEA until the conclusion of the custody matter. See id. This
continuity promotes the UCCJEA’s purpose of “[a]void[ing] jurisdictional competition
and conflict with courts of other States[.]” Official Comment to N.C. Gen. Stat. § 50A-
101.
¶ 26 Contending that the “Permanent Custody Order was a modification of the
temporary custody order[,]” Mother argues “[t]he controlling North Carolina statute
is G.S. § 50A-202[.]” North Carolina General Statute § 50A-202, which addresses
“[e]xclusive, continuing jurisdiction[,]” states:
(a) Except as otherwise provided in G.S. 50A-204, a court
of this State which has made a child-custody determination
consistent with G.S. 50A-201 or G.S. 50A-203 has
exclusive, continuing jurisdiction over the determination
until:
(1) A court of this State determines that neither the
child, the child’s parents, and any person acting as a
parent do not have a significant connection with this
State and that substantial evidence is no longer
available in this State concerning the child’s care,
protection, training, and personal relationships; or
(2) A court of this State or a court of another state
determines that the child, the child’s parents, and
any person acting as a parent do not presently reside
in this State.
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(b) A court of this State which has made a child-custody
determination and does not have exclusive, continuing
jurisdiction under this section may modify that
determination only if it has jurisdiction to make an initial
determination under G.S. 50A-201.
N.C. Gen. Stat. § 50A-202. North Carolina General Statute § 50A-203, which governs
“[j]urisdiction to modify determination,” provides:
Except as otherwise provided in G.S. 50A-204, a court of
this State may not modify a child-custody determination
made by a court of another state unless a court of this State
has jurisdiction to make an initial determination under
G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) and:
(1) The court of the other state determines it no
longer has exclusive, continuing jurisdiction under
G.S. 50A-202 or that a court of this State would be a
more convenient forum under G.S. 50A-207; or
(2) A court of this State or a court of the other state
determines that the child, the child’s parents, and
any person acting as a parent do not presently reside
in the other state.
N.C. Gen. Stat. § 50A-203 (emphasis added). The Official Commentary to North
Carolina General Statute § 50A-203 explains that Section 203 “complements Section
202 and is addressed to the court that is confronted with a proceeding to modify a
custody determination of another State.” Thus, North Carolina General Statutes §§
50A-202 and 50A-203 apply to “modification” jurisdiction, whereas North Carolina
General Statute § 50A-201 applies to “initial determination” jurisdiction. In this case,
the trial court was not exercising modification jurisdiction because it was not
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Opinion of the Court
considering modifying “a child-custody determination made by a court of another
state[.]” N.C. Gen. Stat. § 50A-203 (emphasis added). After Father’s commencement
of the custody action in the trial court, North Carolina retained its “initial
determination” jurisdiction. Because North Carolina was the “home state” of Sandy
for more than six months before Father filed the custody action in Cumberland
County, North Carolina had jurisdiction to enter the permanent custody order, and
North Carolina General Statute § 50A-202 is not the “controlling statute” under these
facts.
¶ 27 Mother contends that New Jersey had jurisdiction simply because she and the
Sandy had moved to North Carolina and Father had moved to Florida. But based
upon the record before this Court, Mother apparently never attempted to have the
New Jersey court exercise jurisdiction over custody, despite the trial court’s efforts
encouraging the parties to consider if New Jersey may be a more appropriate forum
for the case and continuing the custody hearing to give Mother time to address the
issue in New Jersey. Mother did obtain a DVPO in New Jersey, and the provisions
of the DVPO and Amended DVPO addressed communication and contact between
Mother and Father for purposes of visitation, but as the trial court noted, New Jersey
had deferred to the North Carolina court as to the custody determination, specifically
noting in both orders, “Parenting will be the same as scheduled in North Carolina
order.” (Original in all caps.) We also note that Mother had filed separate actions in
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Opinion of the Court
New Jersey including claims for child custody, but the action filed in 2018 was
dismissed. The action Mother filed pro se in 2019 did not comply with the UCCJEA
as it did not identify the North Carolina child custody proceeding as required by New
Jersey Statutory Annotated § 2A:34-73(a)(1). See N.J. Stat. Ann. § 2A:34-73(a)(1)
(West 2019) (“[The pleading or affidavit shall state whether the party] has
participated, as a party or witness or in any other capacity, in any other proceeding
concerning the custody of or visitation with the child and, if so, identify the court, the
case number of the proceeding, and the date of the child custody determination, if
any[.]”).
¶ 28 If Mother had taken the appropriate actions and filed the appropriate motions
or pleadings, it is possible that North Carolina may have declined to exercise
jurisdiction on the basis of an “inconvenient forum” determination pursuant to North
Carolina General Statute § 50A-207. But, as discussed below, the trial court declined
to make such a determination at the 5 March 2018 hearing.
B. Stay of Custody Proceedings
¶ 29 Alternatively, Mother argues that the trial court “should have stayed custody
proceedings due to convenience to the parties and witnesses.” (Original in all caps.)
Specifically, Mother contends because the trial court “determined as of 14 October
2016 that ‘North Carolina is no longer be [sic] most convenient forum for custody
litigation[,]’ . . . even if North Carolina had jurisdiction, the [trial court] should have
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Opinion of the Court
stayed the action in March 2018 on [Mother’s] motion, and should not have proceeded
to a custody trial and custody award in 2019.”
¶ 30 Here, at the 5 March 2018 hearing, the trial court engaged in an extensive
discussion with Father’s counsel, Ms. Hatley, and Mother regarding jurisdiction and
Mother’s request to stay the North Carolina proceedings:
THE COURT: He lives in Florida and she lives in New
Jersey?
MS. HATELY: That’s correct.
THE COURT: Why are we here?
MS. HATLEY: Because the -- this Court had jurisdiction –
....
MS. HATLEY: --at the time of the filing, Your Honor and
THE COURT: And then everybody moved
MS. HATLEY: That’s correct. And we only have temporary
orders, which are not being complied with. So at this point,
you have jurisdiction.
Mother explained that she had a DVPO against Father from New Jersey and that she
had counsel in New Jersey, but not North Carolina. As to the complaint Mother filed
in New Jersey for divorce, equitable distribution, child support, and child custody,
Ms. Hatley explained:
I’m aware of the restraining order. That is up on appeal.
I’m aware that she’s filed for divorce in New Jersey as well
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Opinion of the Court
as overseas in their home of origin, the country of origin
that these parties are from. So there are attorneys that
have been involved in those cases, but no other state has
assumed jurisdiction of the custody, and no other state has
assumed jurisdiction of any of these spousal support or
property issues.
The court then addressed the letter Mother sent to the trial court entitled “motion to
stay.”
THE COURT: And you’ve not had any contact from this
attorney in New Jersey?
MS. HATLEY: No, Your Honor. No one has given me a
single call. Nor has there been a proper motion to -- to
release jurisdiction on the transfer (inaudible) this court.
THE COURT: It’s not in the file, but there is – there’s
something here that she has written that she just handed
up entitled a Motion to Stay (inaudible) proceeding dated
January 12 of 2018.
[MOTHER]: I am -- have a copy, yeah, in here.
MS. HATLEY: Your Honor, I’m not sure a Motion to Stay
is the appropriate motion.
[MOTHER]: Yeah. I am here copy. I need to have copy,
yeah. I am a copy of -- I (inaudible) a copy from Stay of
Motion prepared on the court. I have (inaudible).
THE COURT: Let Ms. Hatley see those and then hand those
back to her. Well, you probably want to tell them to tell
your lawyer that everything is pending down here and that
this one was filed first. So when the judge up there talks
to me, this is the court where it’s going to happen. And
your lawyer needs to get in touch with Ms. Hatley. Because
it just doesn’t happen like this. And I’m concerned about
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some of the things that are in here, particularly (inaudible)
that there have been no previous proceedings between
plaintiff and defendant respecting the marriage dissolution
or respecting the division of property of the parties in any
court except as was entered in the restraining order, which
is not exactly accurate because this case has been pending
for quite a while. So they should have known about this.
And they requested relief for alimony, support, custody,
equitable distribution. And as I look at my docket, I have
custody, support, ED all here. So North Carolina at this
point is the appropriate place for this to happen because
this is where it was instituted. Now, as I read -- this was
granted in the order also, if the Court to grant custody to
her, (inaudible) to us on what to do thereafter.
MS. HATLEY: Your Honor, if it’s like our 50(b) and 50(a),
I would -- I would argue to the Court that 50(a) controls
and the custody order of this court would control.
THE COURT: As 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. Okay.
....
THE COURT: I’m concerned more about the restraining --
the restraining order is their issue. Apparently he went up
there and submitted to the jurisdiction, so that is what it
is. But the custody and all these other issues are still
proper over here, at least for the present time. Hand those
back to her, please. Yeah, Ms. Hatley, there is a – what’s -
- what is denominated as a Motion to Stay, filed January
18th. It’s all in here.
MS. HATLEY: Was that signed by her or was that signed
by the New Jersey attorney, Your Honor?
THE COURT: I think -- it appears that she mailed it. She
has her tracking number there and that apparently came
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to the clerk and it was placed in the file.
MS. HATLEY: Because I know we would have to be heard
on the motion to stay and ask that that be denied at this
point.
THE COURT: I’m not staying anything in here.
MS. HATLEY: Wonderful.
THE COURT: I can tell you that right now. I’m not doing
that. I’m not – I’m not saying it won’t subsequently be
released to New Jersey. I’d have to talk to a judge up there
and see exactly what they’ve done. They’re probably about
like us, so. . . Well, I did hear you at one point say you were
going to get an attorney for down here now again. When
do you intend to do that?
[MOTHER]: I am -- I haven’t done it because I have -- I
don’t have money to attorney here and I –
THE COURT: Well, let me start by saying you probably
want to talk to your lawyer up there and let them know to
get in touch with Ms. Hatley forthwith, that means right
away, so that – you’ve got a lawyer –
[MOTHER]: Okay.
THE COURT: -- up there.
[MOTHER]: Yes.
THE COURT: This case started down here.
[MOTHER]: Yes.
THE COURT: And we are here. I have not relinquished
jurisdiction in the case. North Carolina still has control.
Also tell your lawyer that if he does not get in touch with
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Ms. Hatley very, very soon, this Court may be issuing
additional orders.
[MOTHER]: Okay.
THE COURT: Okay. All right. And your court has already
deferred to us in terms of the visitation and all of that, so --
while you all sort out the restraining order.
(Emphasis added.)
¶ 31 Mother contends the trial court should have treated her letter as a formal
motion for stay under North Carolina General Statute § 50A-207 and that the trial
court erred by not granting a stay based on North Carolina being an inconvenient
forum. “The decision to relinquish jurisdiction to another state on the basis of more
convenient forum is reviewed for an abuse of discretion.” In re M.M., 230 N.C. App.
225, 228, 750 S.E.2d 50, 52-53 (2013) (citation omitted). North Carolina General
Statute § 50A-207 provides:
(a) A court of this State which has jurisdiction under this
Article to make a child-custody determination may decline
to exercise its jurisdiction at any time if it determines that
it is an inconvenient forum under the circumstances, and
that a court of another state is a more appropriate forum.
The issue of inconvenient forum may be raised upon motion
of a party, the court’s own motion, or request of another
court.
(b) Before determining whether it is an inconvenient
forum, a court of this State shall consider whether it is
appropriate for a court of another state to exercise
jurisdiction. For this purpose, the court shall allow the
parties to submit information and shall consider all
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relevant factors, including:
(1) Whether domestic violence has occurred and is
likely to continue in the future and which state could
best protect the parties and the child;
(2) The length of time the child has resided outside
this State;
(3) The distance between the court in this State and
the court in the state that would assume
jurisdiction;
(4) The relative financial circumstances of the
parties;
(5) Any agreement of the parties as to which state
should assume jurisdiction;
(6) The nature and location of the evidence required
to resolve the pending litigation, including
testimony of the child;
(7) The ability of the court of each state to decide the
issue expeditiously and the procedures necessary to
present the evidence; and
(8) The familiarity of the court of each state with the
facts and issues in the pending litigation.
(c) If a court of this State determines that it is an
inconvenient forum and that a court of another state is a
more appropriate forum, it shall stay the proceedings upon
condition that a child-custody proceeding be promptly
commenced in another designated state and may impose
any other condition the court considers just and proper.
(d) A court of this State may decline to exercise its
jurisdiction under this Article if a child-custody
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determination is incidental to an action for divorce or
another proceeding while still retaining jurisdiction over
the divorce or other proceeding.
N.C. Gen. Stat. § 50A-207 (emphasis added).
¶ 32 Here, Mother did not file a motion requesting a stay, but the trial court
addressed her letter at the hearing. The trial court, however, did not memorialize its
oral ruling that “I’m not staying anything here” in a written order. In North Carolina,
“a judgment is entered when it is reduced to writing, signed by the judge, and filed
with the clerk of court,” N.C. Gen. Stat. § 1A-1, Rule 58 (2019), and “[t]he entry of
judgment is the event which vests this Court with jurisdiction[,]” Worsham v.
Richbourg’s Sales & Rentals, Inc., 124 N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996)
(citation omitted). Thus, even if we were to assume Mother’s letter could be
considered as a proper motion to stay proceedings pursuant to Rule 7(b) of the North
Carolina Rules of Civil Procedure, because the trial court never entered an order
ruling Mother’s “motion to stay” letter, this Court does not have jurisdiction to
determine whether the trial court abused its discretion by not granting a stay. See
id.
¶ 33 Rule 7(b) of the North Carolina Rules of Civil Procedure provides:
(1) An application to the court for an order shall be by
motion which, unless made during a hearing or trial or
at a session at which a cause is on the calendar for that
session, shall be made in writing, shall state with
particularity the grounds therefor, and shall set forth
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the relief or order sought. The requirement of writing
is fulfilled if the motion is stated in a written notice of
the hearing of the motion.
(2) The rules applicable to captions, signing, and other
matters of form of pleadings apply to all motions and
other papers provided for by these rules.
N.C. Gen. Stat. § 1A-1, Rule 7(b) (2019). At the hearing, the trial court indicated that
Mother’s letter was “filed January 18th” and “it appears that she mailed it,” explaining
“[s]he has her tracking number there and that apparently came to the clerk and it
was placed in the file.” The letter was not filed stamped or served on Father’s counsel
prior to the hearing, nor did it identify any legal basis for the trial court to stay its
proceedings. Thus, Mother’s purported motion did not comply with the Rules of Civil
Procedure.
¶ 34 As the trial court did not enter an order ruling upon Mother’s purported
motion, we have no jurisdiction to consider Mother’s argument. However, we
appreciate the trial court’s efforts to address Mother’s contentions, even in the
absence of a motion. The trial court engaged in an extensive discussion regarding its
jurisdiction and did not rule out the prospect that jurisdiction could be transferred to
New Jersey in the future stating, “I’m not saying it won’t subsequently be released to
New Jersey. I’d have to talk to a judge up there and see exactly what they’ve done.”
The trial court explained its concern that Mother, in her divorce action in New Jersey,
certified
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there have been no previous proceedings between plaintiff
and defendant respecting the marriage dissolution or
respecting the division of property of the parties in any
court except as was entered in the restraining order, which
is not exactly accurate because this case has been pending
for quite a while. So they should know about this. And
they requested relief for alimony, support, custody,
equitable distribution. And as I look at my docket, I have
custody, support, ED all here.
¶ 35 The trial court’s statements reflect its consideration of certain factors
enumerated in North Carolina General Statute § 50A-207(b), including: “[t]he nature
and location of the evidence required to resolve the pending litigation, including
testimony of the child;” “[t]he ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the evidence;” and “[t]he
familiarity of the court of each state with the facts and issues in the pending
litigation.” N.C. Gen. Stat. § 50A-207(b)(6)-(8). The trial court also discussed and
allowed Mother to present evidence as to “[w]hether domestic violence has occurred
and is likely to continue in the future and which state could best protect the parties
and the child” and “[t]he relative financial circumstances of the parties[.]” N.C. Gen.
Stat. § 50A-207(b)(1), (4). Indeed, Mother was given specific directions on what
actions to take for the trial court to consider making a determination that North
Carolina was an inconvenient forum and transferring jurisdiction to New Jersey.
IV. Compliance with Visitation Order
¶ 36 Mother argues that the trial court “erred in finding that [she] had not complied
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with visitation orders and had frustrated internet and phone visitation.” (Original in
all caps.) She contends that the trial court’s order “fails to provide a factual basis for
a finding that the mother did not comply with visitation orders, or that she failed to
foster a relationship between the child and father; and these findings are contrary to
the evidence regarding visitation.”
In a child custody case, the trial court’s findings of fact are
conclusive on appeal if supported by substantial evidence,
even if there is sufficient evidence to support contrary
findings. Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion. Unchallenged findings of fact are binding on
appeal. The trial court’s conclusions of law must be
supported by adequate findings of fact. . . . Absent an abuse
of discretion, the trial court’s decision in matters of child
custody should not be upset on appeal.
Peters v. Pennington, 210 N.C. App. 1, 12-13, 707 S.E.2d 724, 733 (2011) (citations
and quotation marks omitted).
¶ 37 Mother challenges the following findings of fact:
42. Since the date of separation she has not fostered a
relationship and has willfully withheld visitation.
43. She has not made any genuine efforts to foster that
relationship and there is a substantial likelihood that this
may continue into the foreseeable future.
....
45. [Mother] has made numerous efforts to circumvent and
violate this court’s orders as to visitation with [Father] and
to otherwise delay the matter.
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46. She has resisted allowing the father to visit and to
otherwise have contact with the minor child.
47. She has used the New Jersey DVPO as a means of
avoiding the father having any contact with her and
relegating his efforts to exercise his visitation contingent
upon his contact with relatives of the mother.
....
50. It is clear to this court she does not intend to foster a
relationship with [Father] and to award her primary
custody would likely result in constant and continuous
violations and further alienating the Plaintiff father from
the minor child.
....
59. She was ordered by the Court in December 6, 2016, to
allow Christmas visitation in December, 2017 beginning
December 21, 2017, and she willfully failed to do so.
60. The Father was authorized to have facetime, skype and
other telephonic communication with the minor child and
the mother willfully refused to comply.
....
62. She offered excuses which were not valid and continued
to not comply resulting in numerous contempt motions
being filed and more requests at preliminary hearings.
....
64. [Father] has had to come to court each time to enforce
compliance and to get additional visitation. She has
repeatedly refused to comply with the orders.
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Mother contends the challenged findings of fact are “repetitive, conclusory, and
generalized” and without “specific factual context[.]” Mother asserts that “[l]ooking
at the actual evidence regarding visitation, the record shows that the [Father] had
full physical visitation with the child in conformity with the temporary custody
orders, with two exceptions.”
¶ 38 The record evidence supports the trial court’s findings of fact regarding
Father’s visitation. At the 11 March 2019 hearing, Father testified that from June of
2016 to March of 2017, Mother “wo[uldn’t] let [him] speak to [his] daughter.” After
he “unsuccessfully tried several times to speak to [his] daughter, [he] hired an
attorney in North Carolina and [he] attempted to get a court order to go see [his]
daughter.” After detailing the specific instances when Mother refused to allow him
the visitation ordered by the trial court, Father explained that “25 percent of the time
[he] was successful to see [his] daughter” and “[t]he other 75 percent [Mother]
refused.” According to Father, the trial court’s directive that he communicate with
Sandy via Skype three days a week at 6:00 p.m. “has been fulfilled 50 percent of the
time” and during those times, Sandy was located at the mall or park and “doesn’t
want to pay attention to talk to [him,]” which Father believed Mother was doing
intentionally “so to limit [his] interaction with [his daughter] on purpose.” He
testified about the difficulties arising from Mother’s sister’s facilitation of Skype
visitation and noted that “the bottom line is every single visitation there is
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harassment of some sort” and “[e]very single visitation” he “had to get a court order,
because otherwise [he didn’t think [he] would be able to.” Moreover, in a finding of
fact not challenged by Mother, the trial court found that “[t]he New Jersey Appellate
Court noted that the trial court chastised the mother for not complying with this
Court’s custody order. He admonished her that it was wrong to interfere with the
father’s visitation time.” See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991) (“Where no exception is taken to a finding of fact by the trial court, the
finding is presumed to be supported by competent evidence and is binding on appeal.”
(citations omitted)).
¶ 39 Mother’s assertion that she had fully complied with the visitation orders with
the exception of two occasions goes to the trial court’s assessment of the weight and
credibility of the evidence, which is in the purview of the trial court:
A trial judge passes upon the credibility of the witnesses
and the weight to be given their testimony and the
reasonable inferences to be drawn therefrom. . . . It is clear
beyond the need for multiple citation that the trial judge,
sitting without a jury, has discretion as finder of fact with
respect to the weight and credibility that attaches to the
evidence. The trial court must itself determine what
pertinent facts are actually established by the evidence
before it, and it is not for an appellate court to determine
de novo the weight and credibility to be given to evidence
disclosed by the record on appeal.
Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (citations and quotation
marks omitted). Here, the trial court did not have to believe Mother’s version of the
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facts. The findings of fact made by the trial court are supported by competent
evidence.
V. Sister’s Facilitation of Visits
¶ 40 Mother asserts the trial court “erred in finding that [her] sister did not want
to facilitate visitation.” (Original in all caps.) The trial court made the following
pertinent finding of fact regarding Mother’s sister’s facilitation of Father’s visitation:
73. The evidence clearly shows that the sister recently
changed the times for the skype or phone contact
unilaterally leaving the father with no choice but to accept
the change or wait until he could get back into court.
....
77. This Court has no jurisdiction over the sister, a
nonparty to this action. Consequently, the coordination
with her for visitation is not appropriate.
78. Moreover, she (the sister) has already unilaterally
changed the time leaving the father without recourse. He
can’t contact the mother otherwise and this court lacks the
power to order the sister to act accordingly.
79. Moreover, at the court session on May 14, 2019, the
court received information from [Father] through counsel
that the sister was no longer willing to supervise the visits.
¶ 41 Mother challenges Finding of Fact 79 and argues “[t]here was no testimony
that [her] sister was not willing to help with the visits” and the trial court “appears
to have not only relied on arguments of [Father’s] counsel to support its order, but it
seems to have ignored [Mother’s] counsel’s response to this.” She asserts that “[i]n
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view of the importance of this issue of [Mother’s] sister facilitating visitation, this
finding was error and requires reversal.”
¶ 42 However, Finding of Fact 79 was supported by evidence. At the 14 May 2019
hearing, the following exchanges occurred between Ms. Hatley and Mother’s counsel,
Ms. White:
MS. HATLEY: What I can say to the Court is my client has
indicated that to his knowledge nothing has changed with
regard to the restraining order in New Jersey, and that the
sister who had been coordinating is no longer willing to be
involved in that. So that puts us kind of where I know the
Court was afraid that we would --
....
MS. WHITE: . . . . The other issue is in regards to
communication between the parties. It was indicated by
Attorney Hatley earlier that her client hasn’t been able to
talk to the child. Your Honor, my client did bring in a copy
of the logs and it does show that he’s had numerous phone
calls.
MS. HATLEY: Your Honor, that was not my
representation. My representation was that the sister who
was facilitating does not wish to be involved any further.
MS. WHITE: Okay. And that is – that is not what is
indicated from me. It’s just the sister is a dentist, as we
described before, and she does have specific times that
she’s available. And calls have still been made since that
time.
¶ 43 Finding of Fact 79 finding reflects Father’s counsel’s statement to the court
that Father “indicated that to his knowledge” “the sister who had been coordinating
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is no longer willing to be involved in that.” The trial court did not find as fact that
Mother’s sister was unwilling to supervise visits. Finding of Fact 79 is supported by
evidence.
¶ 44 Moreover, it was not necessary for Mother’s sister personally to come to a
hearing in North Carolina and testify that she no longer wanted to facilitate
visitation, as she was not a party subject to the district court’s jurisdiction. The trial
court had no authority to direct Mother’s sister to do anything. Father presented
evidence regarding his difficult experiences with attempting to facilitate visitation
through Mother’s sister. The sister’s actions and Father’s inability to exercise
visitation as ordered tend to indicate that the sister was either unwilling or
unavailable to facilitate visitation as needed. Even if Mother’s sister had been
amenable to facilitating visitation, there was no abuse of discretion in the court
finding she was not appropriate for the role in light of the unchallenged findings of
fact based upon Father’s actual experience in attempting to coordinate visitation
through Mother’s sister. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
VI. DVPO
¶ 45 Mother contends that the trial court “erroneously used the New Jersey DVPO
against” her and “failed to give full faith and credit to the DVPO.” (Original in all
caps.) In its order entered 27 June 2019, the trial court made the following findings
of fact regarding the DVPO:
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25. The Defendant Mother filed for and obtained a DVPO
in the State of New Jersey. A hearing was held and a
permanent order was entered April 11, 2017. This order
was granted and remains in effect. The New Jersey court
has now directed that the visitation be as indicated by the
North Carolina Court.
26. The New Jersey Court found that she moved to New
Jersey around November, 2016 and did not disclose to
[Father] her location.
27. This Court notes that while it is very clear that North
Carolina was the Home State at the time of filing, the
testimony offered here today does conflict with some of the
facts found as indicated in the NJ case.
28. It is also clear that the alleged acts of physical domestic
violence allegedly occurred in North Carolina. The case in
fact went to the New Jersey Appellate Court and was
remanded to the trial court for further orders.
29. One of the major issues on the appeal was to clarify that
the act of domestic violence found was not a physical
assault or physical domestic violence, but what was
described as a threat. While the Defendant Mother
testified as to alleged physical assault, that was not the
finding of the trial court as to the reason for the DVPO.
30. The corrections were made to correct the order and the
order was filed. That order has now been entered and the
DVPO is a permanent one in full force and effect.
31. The DVPO order has a specific no contact provision as
it relates to the father and the mother. The order was
entered based upon a Facebook post on the father’s
Facebook page, not as a result of any actual physical
violence nor any direct threat sent by the father to the
mother. The Court found that even though he didn’t send
the item to her and she was not his friend on Facebook, the
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information could find its way to her.
32. The item posted stated: “Nothing is ever forgotten,
nothing is ever forgiven. Everything will be remembered,
everything will be avenged.”
33. The New Jersey order further indicated a section
awarding temporary custody to the mother, presumably
consistent with this Court’s order.
....
44. The New Jersey Appellate Court noted that the trial
court chastised the mother for not complying with this
Court’s custody order. He admonished her that it was
wrong to interfere with the father’s visitation time.
....
47. She has used the New Jersey DVPO as a means of
avoiding the father having any contact with her and
relegating his efforts to exercise his visitation contingent
upon his contact with relatives of the mother.
....
72. The mother now has a Domestic Violence Protective
Order that prohibits the father from having contact with
her. The Father is required to contact a non-party sister of
[Mother] to facilitate the contact and the visitation.
73. The evidence clearly shows that the sister recently
changed the times for the skype or phone contact
unilaterally leaving the father with no choice but to accept
the change or wait until he could get back into court.
74. The Mother’s failure to abide by the Court’s Orders
coupled with the DVPO no contact order and the
requirement therein that he contact a nonparty relative to
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coordinate his visitation are all problematic in this case.
75. This further complicates matters in that the father
cannot contact the mother to express his unhappiness and
the violation of the order as he is prohibited from having
contact with her.
76. This allows the ·mother to withhold and deflect reasons
as to why the visitation did not occur.
77. This Court has no jurisdiction over the sister, a
nonparty to this action. Consequently, the coordination
with her for visitation is not appropriate.
78. Moreover, she (the sister) has already unilaterally
changed the time leaving the father without recourse. He
can’t contact the mother otherwise and this court lacks the
power to order the sister to act accordingly.
79. Moreover, at the court session on May 14, 2019, the
court received information from the Plaintiff through
counsel that the sister was no longer willing to supervise
the visits.
80. The New Jersey court rightly determined that these
parties will have to interact as a result of the minor child
for the next “many, many years.” The trial court further
indicated the parties would have to see each other
“continuously or at least come into contact” as it relates to
dealing with the minor child through the years.
81. Unfortunately, the no contact provision is problematic
for the Plaintiff father. It places him in a significant
dilemma.
82. A fair reading could expose him to contempt and/or
criminal prosecution for contacting the mother in reference
to the visitation or the status of the minor child while in
his care.
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83. Moreover, it could be used as a spear or a shield by the
defendant mother, and she has clearly demonstrated a
propensity to thwart his visitation and further alienate
him from the minor child.
84. Consequently, this court directed the parties,
specifically the Defendant Mother, to return to the New
Jersey Court to have the provision removed and/or clarified
to specifically allow contact for the purposes of complying
with this Court’s Custody Order.
85. The Court has now determined that the no contact
order remains in effect and this is a barrier to the Plaintiff
Father’s ability to visit with and co-parent his minor child.
86. The restraining order may provide the mother with a
legal basis to thwart the father’s efforts to visit with,
contact, locate or otherwise have a relationship with his
child.
87. The sister has now changed the time for telephone calls.
The father cannot contact the mother to complain. This
Court lacks jurisdiction over the sister and this is
fundamentally unfair to the Plaintiff father in this matter.
....
102. To be clear, the order being entered today posed a very
difficult decision for the Court. It is not one the court
enters lightly. Had the Defendant Mother complied with
this court’s orders and made the effort to accommodate the
visitation with the father, the Court well likely would have
placed primary custody with her. However, the use of the
DVPO to essentially hide behind, the failure to foster the
relationship and follow the court orders as to visitation and
her repeated attempts to shift the focus to the DVPO, all
led to the inescapable conclusion that she has little if any
intention to foster a relationship with the father.
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....
104. In fact, during the entrance of the order in Court
today, the Court directed the parties to disclose their
addresses and contact information for purposes of
facilitating contact and arrange for visitation and
effectuation of the order and the Defendant Mother was
reluctant to provide her email due to the New Jersey order.
This clearly demonstrates the dilemma and her continued
resistance.
105. The New Jersey DVPO order does provide that the
visitation be as indicated by the North Carolina Court. The
Court enters this order and specifically finds it is in the
best interest of the minor child for the parties to have
contact for the purpose of facilitating visitation and to
discuss the welfare of the minor child.
....
109. It is in the best interest of the minor child that the
parties communicate through the Our Family Wizard mode
and the cost will be borne by the Plaintiff Father.
A. Use of DVPO Against Mother
¶ 46 Mother contends that the trial court “erroneously used the New Jersey DVPO
against” her. (Original in all caps.) She argues “[t]he rationale of the District Court
raises very serious public policy concerns pertaining to domestic violence” and “[i]n
yet another odd twist, the District Court actually directed [her] to go back to the New
Jersey proceeding to have it modified to provide for communication between the
parties to accommodate visitation.”
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¶ 47 The order is replete with findings about the effects of the DVPO on Father’s
visitation. Mother asserts that Findings of Fact 47, 76, 86, and 102 are “inexplicable”
because “[i]t is entirely unclear the manner in which [she] is using or abusing the
DVPO to avoid visitation.” However, the trial court’s unchallenged findings of fact
establish the harmful way that Mother utilized the DVPO to her advantage in terms
of Father’s visitation. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Additionally,
record evidence supports these findings. For example, at the 12 March 2019 hearing,
Father stated that Mother filed an action on 14 November 2018 in New Jersey for
divorce, support, equitable distribution, and “to have New Jersey assume jurisdiction,
even after [the trial court] told her that was not appropriate.” In the complaint,
Mother certified that the only action she and Father were parties to was the domestic
violence proceeding and did not direct the New Jersey court to the ongoing North
Carolina proceedings. According to Father, by not alerting the New Jersey court of
the trial court’s visitation orders, Mother “makes every effort to keep this restraining
order so that my client can’t have any contact with her in place.”
¶ 48 Additionally, the trial court took affirmative steps to not use the DVPO against
Mother. At the March 12, 2019 hearing on custody, termination of post separation
support, alimony, and equitable distribution, the trial court explained it “c[ould not]
deal with” the no contact provision because it as was “a New Jersey issue.”
Accordingly, the trial court stated from the bench:
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I also indicated to them, as I’ve indicated in the record, that
the restraining order issued in New Jersey, because of the
way it is written and prohibiting contact, specifically
prohibiting the plaintiff father from having contact with
the defendant mother, is problematic for this Court. It
potentially puts him at risk for criminal charges by simply
following this order. I do not believe that was the intent of
the New Jersey court, but I cannot glean that, or how they
would interpret it, from a reading of the order.
Consequently, it will be incumbent upon the parties to file
an appropriate matter in the New Jersey court to get the
no-contact order lifted or to be advised that it is this Court’s
intention to allow contact between the parties for the
purposes of visitation and the best interest of the minor
child as this Court does in the usual domestic orders. So
they can either remove that provision or place some
clarifying language so that it will be clear that to the extent
the parties have contact with regard to following this order
that the Court will enter they will not be in violation or he
will not be in violation of the restraining order.
¶ 49 The court continued the hearing for the limited purpose of allowing the parties
to seek clarification of the order, specifically finding that it “will enter judgment as to
the issue of child custody on May 14, 2019 and hopes to have clarification with regard
to the provisions of the New Jersey order which prohibit any contact between these
parties by that date.” Mother apparently failed to take any action as anticipated as
the basis for the continuance. At the 14 May 2019 hearing, Mother’s counsel stated,
“I don’t have a status on whether a court date has been scheduled.” Thus, despite the
court’s directives, Mother took no action.
¶ 50 Moreover, the North Carolina custody order is not inconsistent with the DVPO
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and does not lessen Mother’s protection. The DVPO provided that Father was to text
Mother’s sister “regarding parenting time only” and also provided that “[p]arenting
will be the same as scheduled in North Carolina order. Pick up/drop off at Old Bridge,
P.D.” (Original in all caps.) The North Carolina order would necessarily allow the
parents to communicate as needed for the visits to happen, particularly where the
parties do not live in the same state. The only method of communication identified
by the New Jersey DVPO was mother’s sister, and the evidence before the trial court
indicated that Mother’s sister was no longer willing or available to facilitate
visitation. Thus, since Mother’s sister could no longer be the intermediary for
communications, the trial court ordered for the parties to communicate through Our
Family Wizard at Father’s expense.
¶ 51 Use of Our Family Wizard to facilitate and document communications between
Mother and Father is entirely consistent with the Amended DVPO. Our Family
Wizard is an online application which provides tools to facilitate communications
between parents, including a message board and calendar. Our Family Wizard does
not require the parents to communicate directly with one another but provides a
secure platform to share messages, and the messages cannot be edited or deleted after
they are sent, thus providing a record for the court, if needed. Use of Our Family
Wizard for coordination with Father provides Mother a far more secure method of
communication with Father than using her sister as a go-between. This argument is
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without merit.
B. Failure to give Full Faith and Credit to DVPO
¶ 52 Mother argues that “[i]n addition to using the New Jersey DVPO against [her],
the lower court also failed to honor that order. The court, in effect, modified the terms
of the DVPO, and further distorted the facts that led to the DVPO. In doing so the
lower court failed to give full faith and credit to the DVPO as required by federal law.”
¶ 53 The Full Faith and Credit Clause “requires that the judgment of the court of
one state must be given the same effect in a sister state that it has in the state where
it was rendered.” State of New York v. Paugh, 135 N.C. App. 434, 439, 521 S.E.2d
475, 478 (1999) (citation omitted). “We review de novo the issue of whether a trial
court has properly extended full faith and credit to a foreign judgment.” Marlin
Leasing Corp. v. Essa, 263 N.C. App. 498, 502, 823 S.E.2d 659, 662-63 (2019).
¶ 54 Here, the trial court did not modify the DVPO, and the custody order does not
alter the effect of the DVPO. The DVPO specifically deferred to the trial court’s
custody order by explicitly stating, “parenting will be the same as scheduled in North
Carolina order.” (Original in all caps.) There is no evidence that the trial court failed
to honor the DVPO; indeed, as discussed above, the trial court accommodated the
restrictions of the DVPO by ordering communications through Our Family Wizard
after Mother’s sister was no longer available to facilitate communications. The trial
court was not required to give the parties opportunities to seek modification of the no
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contact provisions of the New Jersey DVPO, but the trial court did give them this
opportunity. As the parties failed to take advantage of this opportunity, the trial
court ordered communications through Our Family Wizard. Father is still not
allowed to contact Mother directly, as required by the DVPO.
VII. Exclusion of Mother’s Exhibit
¶ 55 Finally, Mother contends the trial court erred by not admitting screenshots of
Skype calls allegedly between her sister and Father because the “[s]creenshots are
admissible, and it is not necessary that the account holder authenticate the screen.”
¶ 56 Mother is correct that screenshots can be admissible evidence, but this
evidence still must be authenticated. At the 11 March hearing, Mother sought to
introduce what she described as “a scribe between [Father] and my sister” into
evidence. Father objected and the trial court allowed his motion to strike the
evidence. In the record before this Court, Mother has included the screenshots of
Skype calls she sought to present as evidence. However, the only information
provided to the trial court as to the authentication of the exhibit was Mother’s
statement that it was “a scribe between [Father] and my sister.”
¶ 57 “The requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2019).
North Carolina Rule of Evidence 901 provides various methods to authenticate
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evidence, including “[t]estimony that a matter is what it is claimed to be.” N.C. Gen.
Stat. § 8C-1, Rule 901(b)(1).
¶ 58 On appeal, Mother argues the screenshots “should have been admitted”
because they “were crucial to show the communication between the child and her
father” and Father “had introduced similar screenshots.”5 We note that the
admission of Father’s “similar screenshots” is not relevant to whether Mother’s
evidence should be admitted. We must assume that Father’s evidence was either
properly authenticated or Mother failed to object to admission of his evidence; there
is no issue on appeal as to his evidence. However, beyond Mother’s description of the
screenshots as “a scribe between [Father] and my sister[,]” Mother presented no
“evidence sufficient to support a finding that the matter in question is what its
proponent claims.” Id. Based upon Mother’s own statement, she was not a party to
the alleged screenshots and her only knowledge of the information needed to
authenticate the screenshots would have come only from her sister, who was not
present to testify. Mother did not properly authenticate the screenshots and the trial
court did not err by sustaining Father’s objection to admission of this evidence. Cf.
5 We also note that even if the trial court had admitted Mother’s exhibit, the trial court would
still determine the weight and credibility of the evidence. See Phelps, 337 N.C. at 357, 446
S.E.2d at 25. Based upon our review of the proposed exhibit, admission of Mother’s proposed
screenshots would likely not change the trial court’s analysis of the facts. The
communications between the parties were clearly fraught with difficulty, based on the
evidence presented by both parties.
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State v. Gray, 234 N.C. App. 197, 206, 758 S.E.2d 699, 705 (2014) (“We hold the
testimony in this case by Detective Snowden, who recovered the text messages from
Mr. Diaz’s cell phone, and Ms. McKoy, with whom Mr. Diaz was communicating in
the text messages illustrated in exhibit twelve, was sufficient to authenticate
[photographs of the text messages].”). As a result, the trial court did not err in
excluding the screenshot of the skype calls.
VIII. Conclusion
¶ 59 For the reasons discussed above, we affirm the trial court’s order.
AFFIRMED.
Judges ARROWOOD and HAMPSON concur.