Gasser v. Sperry, 8828DC513

• Decision Date: 21 February 1989
• Docket Number: No. 8828DC513,8828DC513
• Citation: 376 S.E.2d 478,93 N.C.App. 72
• Court: North Carolina Court of Appeals
• Parties: Karen Renee GASSER v. Erik James SPERRY.

Page 478

376 S.E.2d 478

93 N.C.App. 72

Karen Renee GASSER v. Erik James SPERRY.

No. 8828DC513.

Court of Appeals of North Carolina.

Feb. 21, 1989.

Scott E. Jarvis, Asheville, for plaintiff-appellant.

John E. Shackelford, Asheville, for defendant-appellee.

GREENE, Judge.

This appeal arises from plaintiff's attempt to enforce a Florida order granting her custody of three minor children born during her marriage to defendant. Upon the parties' Florida divorce in November 1984, a Florida court granted plaintiff custody of all four children born during the marriage. However, it appears the Florida court modified the original custody order in March 1987 to transfer custody of the daughter Erin Rebekah Sperry to defendant while leaving custody of the three other children with plaintiff. After this order (the "First Modification Order") was entered, plaintiff and the three remaining minor children moved to North Carolina. However, in June 1987, the Florida court entered another order (the "Second Modification Order") which transferred custody of the remaining three minor children to defendant.

In September 1987, plaintiff filed suit in North Carolina to enforce her right to custody of the minor children. Plaintiff alleged the Florida court did not have jurisdiction to enter the Second Modification Order. Conversely, defendant asserted the Second Modification Order was a valid judgment entitled to full faith and credit in the courts of North Carolina and requested the North Carolina court order plaintiff to deliver the remaining minor children in accord with the Second Modification Order. Pending plaintiff's Florida appeal of the Second Modification Order, the North Carolina trial court determined the Second Modification Order was entitled to full faith and credit and ordered custody of the minor children transferred to defendant.

However, the North Carolina trial court's order stated that, "this Order [is] being entered subject to being modified if the Florida Court shall hereafter sustain the appeal of [plaintiff], and if said Order is sustained, the courts of North Carolina and Florida shall have further proceedings to determine jurisdiction." After the North Carolina court's order was appealed to this court and the case argued, the Florida District Court of Appeals held, among other things, that the Florida trial court had no jurisdiction to enter the Second Modification Order and vacated that order. The Florida Supreme Court has declined to review that decision of the Florida District Court of Appeals. As the North Carolina trial court's order was entered subject to the Florida determination which has now occurred, we dismiss this appeal and remand the case for further proceedings.

If either party on remand desires our own courts to enforce or modify any remaining Florida orders concerning custody of these children, such efforts shall be governed by the federal Parental Kidnapping Prevention Act of 1980 ¹ ("PKPA") and our own Uniform Child Custody Jurisdiction Act ("UCCJA"). 28 U.S.C.A. Sec. 1738A (West Supp.1988); N.C.G.S. Ch. 50A (1984). The PKPA establishes national policy in the area of custody jurisdiction. To the extent any state custody statutes conflict with its provisions, the PKPA controls. See Thompson v. Thompson, 484 U.S. 174, ----, 108 S.Ct. 513, 517, 98 L.Ed.2d 512, 521 (1988) (PKPA imposes uniform national standards for allocating and enforcing custody determinations).

APPEAL DISMISSED.

BECTON, J., concurs.

EAGLES, J., concurs in the result.

1 28 U.S.C.A. § 1738A:

Full faith and credit given to child custody determinations

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

(b) As used in this section, the term--

(1) "child" means a person under the age of eighteen;

(2) "contestant" means a person, including a parent, who claims a right to custody or visitation of a child;

(3) "custody determination" means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications;

(4) "home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;

(5) "modification" and "modify" refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not;

(6) ...