Danna v. Danna

• Decision Date: 16 February 1988
• Docket Number: No. 8712DC509,8712DC509
• Citation: 364 S.E.2d 694,88 N.C.App. 680
• Parties: Teresa Debra DANNA v. Bruce R. DANNA. Bruce R. DANNA v. Teresa Debra DANNA.
• Court: North Carolina Court of Appeals

Page 694

364 S.E.2d 694

88 N.C.App. 680

Teresa Debra DANNA v. Bruce R. DANNA.

Bruce R. DANNA v. Teresa Debra DANNA.

No. 8712DC509.

Court of Appeals of North Carolina.

Feb. 16, 1988.

David H. Rogers, Raleigh, for plaintiff-appellant.

Nance, Collier, Herndon, Guthrie, & Jenkins by Joel S. Jenkins, Jr., Fayetteville, for defendant-appellee.

BECTON, Judge.

In this interstate child custody dispute, the dispositive issue on appeal is whether, pursuant to North Carolina's Uniform Child Custody Jurisdiction Act (UCCJA), N.C.Gen.Stat. Sec. 50A-1, et seq. (1984 and Cum.Supp.1987), the Cumberland County District Court of North Carolina properly declined to exercise jurisdiction to modify a Florida custody decree. We hold that the refusal to assume jurisdiction was not error, and therefore we affirm the decision of the District Court.

I

The marriage of Teresa Debra Danna and Bruce R. Danna was dissolved by a 16 March 1983 judgment of the Circuit Court for the 17th Judicial District in Broward County, Florida. The Florida divorce decree directed the parties to exercise "Shared Parental Responsibility" for their two minor children, pursuant to Florida Stat. Sec. 61.13 (1981) with primary physical custody awarded to the mother, subject to reasonable visitation rights of the father. The judgment also incorporated, in its entirety, a separation agreement between the parties, which, in part, prohibited Mrs. Danna from removing the children from the State of Florida without either the prior written consent of Mr. Danna or court approval.

In January 1985, Mrs. Danna, without the prior approval of the Florida court or the written consent of Mr. Danna, relocated from Florida to North Carolina with her children. Mr. Danna apparently orally agreed or acquiesced to a temporary move to extend as long as two years.

At some point a dispute arose between the parties concerning the father's exercise of visitation rights, and on 22 August 1986, Mr. Danna filed a motion in the Florida court, seeking temporary custody, or in the alternative, the return of the children to Florida. Mrs. Danna responded by filing a complaint in Cumberland County District Court on 17 September 1986, (Case No. 86CVD4577) by which she sought to have the North Carolina Court assert jurisdiction over the matter, enjoin the removal of the children from North Carolina, and affirm her primary physical custody of them.

What followed was a series of proceedings in the courts of Florida and North Carolina during which Mr. Danna besought the Florida court to award primary physical custody to him, the Florida court refused Mrs. Danna's request that it relinquish jurisdiction in favor of North Carolina, and the North Carolina court declined to assert jurisdiction. Specifically, on 29 January 1987, District Court Judge Lacy H. Hair entered an order which, although denying a motion of Mr. Danna to dismiss Mrs. Danna's action for lack of jurisdiction, ordered that any further proceedings in North Carolina were stayed "in favor of the pending proceedings in the State of Florida."

Athough Mrs. Danna had participated in the Florida proceedings initially, she participated in them no further following the Florida court's refusal to transfer the matter to North Carolina's jurisdiction. On 6 February 1987, she amended her complaint to allege acts of physical and verbal abuse by Mr. Danna against herself and the children. She further alleged that she and the children were in immediate danger of further such acts entitling her to emergency relief from domestic violence pursuant to Chapter 50B of the North Carolina General Statutes. Her prayer for relief was amended to include requests that the court lift the 29 January stay and deny Mr. Danna visitation until the Court determined that he was unlikely to further abuse her or the children.

Thereafter, on 10 February 1987, following a hearing at which Mrs. Danna chose not to appear, the Florida Court awarded primary physical custody of the children to their father. The following day, Mr. Danna came to North Carolina armed with the Florida decree, instituted an action to enforce the Florida order (Case No. 87CVD732), and obtained an ex parte order from District Court Judge Sol G. Cherry awarding him immediate custody.

Finally, on 16 February 1987, Judge Cherry held a combined hearing on both Mrs. Danna's action to modify the initial Florida decree, and Mr. Danna's motion to enforce the 10 February Florida decree; and on 27 February 1987, he entered a final order dismissing Mrs. Danna's action for lack of jurisdiction and according full faith and credit to the 10 February Florida decree which awarded primary custody to Mr. Danna. Thereafter, Mrs. Danna filed a Rule 60(b) motion to vacate the final order, which was denied by order of Judge Cherry entered 23 March 1987.

Mrs. Danna now appeals to this Court from (1) the 29 January 1987 stay entered by Judge Hair, (2) the 27 February 1987 final judgment declining jurisdiction, and (3) the 23 March 1987 denial of her Rule 60(b) motion.

II

At the outset, we decline to address the propriety of the 29 January 1987 stay ordered by Judge Hair since Mrs. Danna has no right of appeal from that interlocutory order. Moreover, we are not persuaded that Judge Hair's action in staying the North Carolina proceedings in favor of Florida adversely affected the ultimate outcome of this case; and, in view of our resolution of the jurisdictional issues discussed hereafter, we conclude the issues arising from that order have been rendered moot by the entry of Judge Cherry's final order.

III

We first consider whether Judge Cherry erred in his 11 February 1987 order by declining to assume jurisdiction over the custody dispute. In that order, the judge made findings of fact and conclusions of law. Four of the conclusions of law, to which Mrs. Danna excepts, indicate that jurisdiction was declined because (1) Florida had retained jurisdiction over the custody issue, (2) North Carolina lacked jurisdiction to modify the Florida decree under N.C.Gen.Stat. Sec. 50A-14, (3) simultaneous proceedings in Florida barred the assumption of jurisdiction pursuant to N.C.Gen.Stat. Sec. 50A-6, and (4) Mrs. Danna's conduct in violating the Florida decree justified declining jurisdiction pursuant to N.C.Gen.Stat. Sec. 50A-8. If any one of these conclusions constitutes a proper basis for the trial court's dismissal of Mrs. Danna's claims, we must uphold the court's decision.

For reasons we need not discuss here, we conclude that the first three conclusions of law are unsupported by adequate findings of fact and thus do not justify the dismissal. However, in our opinion, the court's decision to decline jurisdiction must be upheld on the basis of N.C.Gen.Stat. Sec. 50A-8. That provision operates, in certain situations, to either require or allow a North Carolina court, which otherwise has jurisdiction under some other section of the UCCJA, to decline to exercise its jurisdiction due...