In Re The Marriage Of: Valerie Ndje Nlend, V. Rodrigue Alain Ndje Nlend

• Court: Court of Appeals of Washington
• Decided: July 31, 2023
• Docket: 84442-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of No. 84442-3-I VALERIE NDJE NLEND, DIVISION ONE Respondent, UNPUBLISHED OPINION and

RODRIGUE ALAIN NDJE NLEND,

Appellant.

BIRK, J. — Rodrigue Ndje Nlend appeals a King County Superior Court

order reinstating a dissolution proceeding initiated by Valerie Ndje Nlend, after the

superior court concluded it had erroneously dismissed the matter based on

Rodrigue’s1 representation a final divorce had separately been entered in North

Carolina. We affirm.

I

Valerie filed a petition for dissolution of her marriage to Rodrigue in King

County Superior Court on May 10, 2021. Valerie asserted they had two children

together, then ages 12 and 10. Valerie asserted she and the children had resided

in Washington from June 2019 to the time of her filing, and Rodrigue had resided

in Washington from June 2019 at least through September 2020. She alleged the

existence of an action in King County for a domestic violence order for protection.

1 For clarity we use the parties’ first names. We intend no disrespect. No. 84442-3-I/2

A later filing indicates the superior court had granted an order for protection on

November 23, 2020. The order indicated Rodrigue had been personally served

and appeared at the hearing. The order imposed restraints on Rodrigue’s contact

with and conduct toward Valerie and the two children. The court set a trial date for

the dissolution of April 11, 2022.

On May 27, 2021, the court entered an order on Valerie’s motion permitting

service by mail on Rodrigue at an address in Indiana. The address was based on

a pro se notice of appearance by Rodrigue in the domestic violence order for

protection proceeding.

On September 16, 2021, Rodrigue filed a pro se response to Valerie’s

petition. The record suggests he may have had to refile certain documents the

next day perhaps due to an error in the cause number. The response indicated

Valerie did not live in Washington and had been “disingenuous” about an out-of-

state relocation. He opposed entry of a parenting plan or child support order on

the grounds no party lived in Washington. He indicated he signed the response

under penalty of perjury in Seattle, Washington, but stated he would accept legal

papers for the case at his address in Indiana. On September 17, 2021, Rodrigue

filed a declaration indicating he had at one point resided in Bellevue, Washington,

that the children had been enrolled in the Bellevue School District, that they had

attended that school district in summer 2021, and that they had been withdrawn

from the district. Also on September 17, 2021, Rodrigue filed a declaration

asserting, among other things, “the court lacks jurisdiction over the parties as

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neither the petitioner nor the respondent is a resident of, or domiciled in the State

of Washington.” Finally, on September 17, 2021, Rodrigue filed a motion to

dismiss the petition on the ground Washington lacked jurisdiction over the parties.

He attached an e-mail Valerie had sent to a visitation coordinator between

September 8, 2021, and September 11, 2021, indicating “we no longer live in

Washington State.”

On September 24, 2021, the court entered a temporary family law order. It

awarded Valerie $5,000 for attorney fees. It ordered that Rodrigue must pay

spousal support in the amount of $5,000 per month. In an October 22, 2021 order

on Rodrigue’s motion for revision of the temporary order, the court overruled

Rodrigue’s jurisdictional objections, concluding the court had authority to enter

support orders because “for a period of time the marital community resided in the

State of Washington.” The court found Rodrigue was then living in Indiana. In a

separate order entered October 22, 2021, the court ordered that Rodrigue pay

monthly child support in the amount of $1,004.36 starting August 2021.

On December 17, 2021, the court held a hearing on a motion by Rodrigue

to require the children to be returned to Washington. In a written order entered

December 17, 2021, the court concluded the children had moved without

agreement or a court order, and without proper advance notice. However, the

court found it was in the best interests of the children to remain with Valerie, now

in North Carolina. The court ordered that the children may remain in North

Carolina, ordered disclosure of their address to Rodrigue, and ordered further,

3 No. 84442-3-I/4

“your client [Rodrigue] has to follow the rules. He better not even think about going

to the state of North Carolina or I will enter substantially more severe restraints.”2

On January 7, 2022, the court entered a parenting plan. On February 17,

2022, the court appointed a guardian ad litem for the children. On March 8, 2022,

the court entered a temporary family law order indicating Rodrigue had not timely

filed financial information. On March 28, 2022, the court held a contempt hearing.

Rodrigue did not appear. A written order on the March 28, 2022 contempt hearing

was later entered on June 13, 2022. That order reflected that the court found

Rodrigue had not obeyed orders for child support and spousal maintenance. The

court noted it had denied Rodrigue’s motion to reduce his support obligations. The

court entered judgment against Rodrigue for $12,182.52 for past due support and

$3,042.49 in attorney fees, and ordered Rodrigue to come into compliance within

seven days, among other requirements.

Rodrigue represents in his brief of appellant in this court that he became a

North Carolina domiciliary on April 18, 2022. On April 20, 2022, Rodrigue filed an

action for divorce in North Carolina. Valerie was served with the papers on April

21, 2022. Valerie responded, asking that the action be dismissed because of the

action pending in Washington.

On July 12, 2022, Rodrigue filed in King County Superior Court a

“Judgement for Absolute Divorce” issued by a court in North Carolina. He again

2 A transcript of this hearing is not before the court. This statement is based on a declaration later filed by Valerie.

4 No. 84442-3-I/5

seems to have needed to file again the next day due to a case number error. In

his filing statement, Rodrigue stated, “[O]nce the divorce has been granted in a

given state, divorce related proceedings in any other state are invalid. I

consequently as[k] the court, to dismiss” the petition filed in Washington. He

indicated the April 16, 2022 trial date had passed without any agreement to change

it, and stated the parties at that point all lived in North Carolina. He attached a

certified copy of a judgment of divorce by the General Court of Justice of

Mecklenburg County, North Carolina, signed June 30, 2022, and stamped filed

July 1, 2022. The judgment identified Rodrigue as the plaintiff in that action,

Valerie as the defendant, included findings that Valerie had been properly served

and was a citizen and resident of North Carolina, and granted an “absolute

divorce.” On July 21, 2022, the King County Superior Court entered an order

dismissing the dissolution action without prejudice and without costs, based on the

court “having received notice that appropriate orders have been finalized in North

Carolina.”

On July 26, 2022, Valerie timely filed a motion for reconsideration. She

pointed to the previous hearing in December 2021 concerning the children’s

residence in North Carolina. She stated the judgment in North Carolina did not

“address other issues such as child support, parenting, maintenance, attorney

fees, entering financial restraints, or division of debts and assets.” Valerie was in

the process of filing a motion in North Carolina to vacate the “divorce order,” which

she asserted “was entered without oral presentation or argument.” She stated a

5 No. 84442-3-I/6

hearing had been scheduled in North Carolina on June 13, 2022, she went to the

court that day, but could not ascertain whether a decision was being made and

was told any orders would be mailed. She received the divorce and child support

orders in the mail from Rodrigue on July 10, 2022.

A lawyer representing Valerie in North Carolina provided declaration

testimony detailing “three” North Carolina actions that Rodrigue had filed. The

lawyer explained Rodrigue’s filings had created “three (3) separate case files,”

which was “not proper procedure.” The lawyer indicated the “divorce claim” should

have been noted for a hearing, but was not, as a result of which “the Judgment of

Divorce was entered in response to a Motion for Summary Judgment and based

solely on the pleadings.” Under North Carolina law, “claims such as spousal

support, equitable distribution (division of marital assets and debts), child custody

and child support can stand alone.”3 Further, as long as such claims remain

pending, “a divorce judgment does not dismiss these claims.” The lawyer

anticipated seeking relief under “Rule 60,” sanctions, attorney fees, and a stay.

Rodrigue’s filings in North Carolina represented the children resided with their

father and mother in Bellevue, Washington from June 2019 through September

2020, with their mother in Bellevue, Washington from then through August 2021,

and thereafter with their mother in Charlotte, North Carolina.

3 In his reply brief of appellant, Rodrigue states he agrees with this explanation of North Carolina law.

6 No. 84442-3-I/7

On August 3, 2022, the King County Superior Court granted reconsideration

and vacated its dismissal order. The court concluded, “[T]his court improperly

dismissed this action as there was no Notice of Settlement and trial has not been

conducted. [Rodrigue] obtaining orders in North Carolina while this action was

currently pending and without Washington State relinquishing jurisdiction was

inappropriate.” The court reset the matter for trial. On September 1, 2022,

Rodrigue timely filed a notice of appeal of the August 3, 2022 order.

On October 21, 2022, the superior court entered an order confirming

jurisdiction in Washington. The order reflected conferral under RCW 26.27.101 4

between King County Superior Court Judge pro tempore Leonid Ponomarchuk and

the Honorable Jena Culler of North Carolina District Court for Mecklenburg County.

The court ordered, “Washington state shall retain jurisdiction of this matter.” On

November 7, 2022, the North Carolina Court entered an order vacating the July 1,

2022 judgment of divorce. The court did not base its order on the existence of the

Washington litigation. Rather, the court concluded that Valerie had not received

proper notice of the June 30, 2022 hearing at which the divorce was granted. The

court “retain[ed] jurisdiction over the parties and the cause to enter such other and

further Orders as may be required.” In his reply brief of appellant, Rodrigue asserts

he has sought review of this order by the North Carolina Court of Appeals. On

March 17, 2023, Valerie’s North Carolina attorney filed a declaration in the King

4 “Acourt of this state may communicate with a court in another state concerning a proceeding arising under this chapter.” RCW 26.27.101(1).

7 No. 84442-3-I/8

County action stating, “The North Carolina Court has provided its oral ruling that it

is staying the divorce proceeding . . . . This will allow Washington State to finalize

the divorce matters in Washington.” She indicated an intent to file a motion to

dismiss a separate matter Rodrigue had filed in North Carolina.

II

Rodrigue first argues the trial court erred by not giving effect to the North

Carolina judgment of divorce under the full faith and credit clause consistent with

Williams v. North Carolina, 317 U.S. 287, 303, 63 S. Ct. 207, 87 L. Ed. 279 (1942).

This argument fails for two reasons. First, the North Carolina judgment has been

vacated.5 There is no current judgment in North Carolina entitled to full faith and

credit. Second, even if the judgment of divorce between Rodrigue and Valerie

remained current, Valerie and her counsel correctly observe that the judgment on

its face did not extend to “spousal support, equitable distribution (division of marital

assets and debts), child custody and child support.”

In reply, Rodrigue relies on Muter v. Muter, 203 N.C. Ct. App. 129, 689

S.E.2d 924 (2010), as evidence of the willingness of North Carolina courts to

entertain certain matters attendant to dissolution parallel with proceedings in other

states. In Muter, a wife filed for divorce in Ohio while resident there, seeking

spousal support, property distribution, child custody, and child support. Id. at 130.

After the Ohio court entered several temporary orders, the husband, resident in

5 The North Carolina court vacated its judgment of divorce on November 7,

2022, which was seven days before Rodrigue filed his Brief of Appellant in this court on November 14, 2022, arguing full faith and credit was due.

8 No. 84442-3-I/9

North Carolina, filed an action in North Carolina seeking both spousal support and

a property distribution. Id. The North Carolina appeal in Muter concerned whether

the wife had demonstrated that it would work a substantial injustice on her for the

North Carolina court to proceed. Id. at 131-32. Applying several relevant factors

under that state’s law, the North Carolina Court of Appeals upheld the trial court’s

ruling she had not made that showing. Id. at 134. Although the court considered

each of the governing factors, id. at 132-33, the decision also arose in a context

where the wife “did not present any evidence or make any argument addressing

the relevant factors,” id. at 134.

Rodrigue generally cites Muter for the proposition that North Carolina may—

at least in circumstances where an opposing party presents no evidence and no

argument—proceed with a parallel divorce proceeding. But he ignores the court’s

observation that the Ohio courts in Muter continued with the original proceeding.

Although the Ohio trial court initially dismissed after the North Carolina trial court

entered an “absolute divorce,” id. at 131, the Ohio Court of Appeals reversed

because “the North Carolina divorce decree did not address the remaining claims

between the parties,” id. The same was true of the North Carolina judgment of

divorce formerly in effect between the parties in this case. Rodrigue points to no

proceedings in North Carolina barring Washington’s determining appropriate

spousal maintenance, child support, and a property distribution, nor at this point,

given the order vacating the judgment, the parties’ marital status.

9 No. 84442-3-I/10

Rodrigue emphasizes the North Carolina courts’ jurisdiction to determine

the marital status of their domiciliaries. But he ignores that the Washington court

obtained personal jurisdiction over him as determined by the trial court in orders

he has not challenged on appeal. Rodrigue’s North Carolina court filings represent

that he lived in Washington in the marital relationship from June 2019 through

September 2020. A Washington court may exercise in personam jurisdiction even

over a nonresident spouse who has lived in Washington in a marital relationship.

Oytan v. David-Oytan, 171 Wn. App. 781, 803, 288 P.3d 57 (2012). Rodrigue fails

to show the superior court erroneously failed to give required deference to

proceedings elsewhere, and therefore fails to show the court erred by continuing

with its proceedings.

Rodrigue additionally asserts the trial court erred by setting a new trial date

based on the absence of either a notice of settlement or a completed trial. The

King County dismissal order was based on the court’s assuming that the papers

Rodrigue had filed meant that “appropriate orders [had] been finalized in North

Carolina.” Valerie later showed that the disputes between the parties had not been

finalized in North Carolina, and the North Carolina judgment that had granted a

divorce has since been vacated. The trial court has discretion to control its own

docket. Zurich Servs. Corp. v. Gene Mace Constr., LLC, 26 Wn. App. 2d 10, 30,

526 P.3d 46 (2023). When the court reinstated the case because the parties’

disputes had not in fact been finalized, the court appropriately reset the matter for

trial.

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III

Valerie asks that “fees and costs be awarded” to her. She does not provide

a basis for reasonable attorney fees compliant with RAP 18.1(b). Accordingly, to

the extent Valerie requests reasonable attorney fees the request is denied, but

Valerie is awarded statutory costs under RAP 14.2.

We affirm and remand for further proceedings.

WE CONCUR: