Pelc v. Pham

IN THE COURT OF APPEALS OF NORTH CAROLINA 2023-NCCOA-2 No. COA22-175 Filed 17 January 2023 Mecklenburg County, No. 16 CVD 16819 JAMES HOWARD PELC, Plaintiff, v. MONICA ELIZABETH PHAM, Defendant. Appeal by defendant from judgment entered 7 June 2021 by Judge Christy T. Mann in Mecklenburg County District Court. Heard in the Court of Appeals 29 November 2022. Arnold & Smith, PLLC, by Matthew R. Arnold and Ashley A. Crowder, for the plaintiff-appellant. Miller Bowles Cushing, PLLC, by Brett Holladay, for the plaintiff-appellant. Thurman, Wilson, Boutwell & Galvin, P.A., by John D. Boutwell for the defendant-appellee. TYSON, Judge. ¶1 James Howard Pelc (“Father”) appeals from order entered on 7 June 2021, which awarded to Monica Elizabeth Pham (“Mother”): (1) monetary damages under an United States Citizenship and Immigration Services (“USCIS”) Form I-864 Affidavit of Support; (2) equitable damages for Father’s failure to repay a loan; and, (3) attorney’s fees for Mother’s Affidavit of Support claims. The order also denied PELC V. PHAM 2023-NCCOA-2 Opinion of the Court attorney’s fees for both Mother’s and Father’s child custody claims. We affirm in part, reverse in part, and remand. I. Background ¶2 Father and Mother began a romantic relationship in Perth, Australia, and began cohabitating in 2007. The relationship evolved into a “de facto relationship” per Australian law, which is analogous to a common-law marriage. Mother and Father are parents of one minor son born on 26 June 2009. The parties resided in Australia until 2014, when they moved to the United States (U.S.). ¶3 Father holds dual citizenship in the U.S. and Australia. Mother holds dual citizenship in Australia and New Zealand. Their son is a U.S. and Australian citizen because Father is a U.S. citizen. At the time of trial, Father was 62 years old, and Mother was 50 years old. ¶4 Father desired to return to the U.S. in 2014 to be closer to his aging parents. Mother was reluctant, but she agreed to move “on a trial basis” to determine whether she would enjoy living in the U.S. Mother was required to obtain a Fiancée Visa prior to immigrating and entering the U.S. Mother and Father completed and signed a USCIS Form I-134, entitled “Intent to Marry,” and confirmed their intent to marry within ninety days upon entry into the U.S. Mother and Father married on 21 July 2014 in the U.S. ¶5 For Mother to remain in the U.S., Father also signed and submitted a USCIS PELC V. PHAM 2023-NCCOA-2 Opinion of the Court Form I-864, titled an “Affidavit of Support,” on 7 August 2014. The Affidavit of Support allows the “intending immigrant [to] establish that he or she is not inadmissible to the United States as an alien likely to become a public charge” by requiring the future spouse to promise to financially support the alien. ¶6 The trial court found Father “represented that he was not working but had assets and income from his property from which to support [M]other” on the USCIS Form I-864. Father …

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