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Relocations and Concurrent Divorce Proceedings in North Carolina

North Carolina residents who have lived in the state for at least six months can file for divorce. While separation and divorce are rarely easy, recent moves can make the process even more complicated.

Nlend v. Nlend

In the case of Nlend v. Nlend, a husband and wife had concurrent divorce proceedings in Washington state and in North Carolina. After a series of motions, hearings, and orders, Husband appealed the trial court’s decision to stay the North Carolina proceedings.

Divorce, custody, support, and property division proceedings first began in May 2021 in Washington state, where the parties had lived for three years. In August 2021, Wife moved with the parties’ children to North Carolina. Despite this relocation, the Washington case continued, and the court there entered orders relating to support and visitation, as well as appointing a guardian ad litem and renewing a protection order.

Then, in April 2022, Husband filed a complaint for an absolute divorce in Mecklenburg County, North Carolina. In her answer to this complaint, Wife alleged that Husband was forum shopping and asked that the North Carolina complaint be dismissed. Husband then filed a motion for summary judgment.

Three months later, the North Carolina trial court entered a judgment for an absolute divorce. Wife filed a motion for relief from judgment based on Rule 60 of the North Carolina Rules of Civil Procedure. Rule 60 allows relief from judgments and orders when clerical mistakes are made or for a select few other reasons, including the following:

  • A mistake or excusable neglect
  • New evidence was discovered
  • Fraud or misconduct by the other party

Wife claimed that she had mistakenly forgotten to attach the Washington divorce petition to her North Carolina filings. She further alleged that Husband purposefully failed to notify the North Carolina court of the Washington proceedings and that he did not notify her of the rescheduled summary judgment hearing. Wife requested sanctions, attorney fees, and a stay of the proceedings in North Carolina until the Washington divorce was resolved.

The trial court granted Wife’s Rule 60 motion based, in part, on the fact that no certificate of service appeared in the record to show Wife had been notified of the new hearing date. The court also granted Wife’s motion to stay, denied her motion for sanctions and attorney fees, and denied Husband’s motion for summary judgment. Husband appealed.

Rule 60 and Motions to Stay

The North Carolina Court of Appeals considered Husband’s appeal of the Rule 60 Order, which granted Wife relief from the judgment of absolute divorce. The Court then reviewed the trial court’s decision to grant Wife’s motion to stay proceedings.

The appellate court determined that most of the issues in question in Husband’s appeal were interlocutory, so they were dismissed. The one issue that the Court could rule on was the decision to grant Wife a stay, which was affirmed because the trial court’s findings of fact regarding this were appropriate. When contemplating a motion for a stay, a court should consider certain factors, including:

  • The nature of the case
  • Witness’ convenience
  • Ease of access to proof
  • Litigation burden
  • Convenience and access to an alternative forum
  • Plaintiff’s choice of forum
  • Applicable laws

The Court of Appeals ruled that the trial court considered all the relevant factors and made a reasoned conclusion. An experienced North Carolina family law attorney can be a powerful resource in a complex case.