Hart v. Hart

• Decision Date: 02 April 1985
• Docket Number: No. 844DC272,844DC272
• Court: North Carolina Court of Appeals
• Parties: Allen G. HART v. Veronica M. HART.

Page 631

327 S.E.2d 631

74 N.C.App. 1

Allen G. HART v. Veronica M. HART.

No. 844DC272.

Court of Appeals of North Carolina.

April 2, 1985.

Van Camp, Gill & Crumpler, P.A. by Sally H. Scherer, Raleigh, for defendant-appellant.

Bell & Pitman by Hiram C. Bell, Jr., Jacksonville, for plaintiff-appellee.

BECTON, Judge.

This is an interstate child custody jurisdictional dispute involving a husband stationed with the military in North Carolina and a wife who is presently living in Florida with the parties' two minor children at her parents' home.

The parties were raised in Florida and married there in February 1977. Although the husband was stationed with the military, first in Tennessee and then in North Carolina, the parties maintained their Florida drivers' licenses, car and voter registration. Their two children were born in Tennessee in 1977 and 1980. While the husband was stationed in Tennessee, the parties separated for approximately one year. During the separation, the wife and the two children lived with her parents in Florida. In the summer of 1981 the wife and children joined the husband in North Carolina. The family lived together in North Carolina until August 1982, when the husband left for active duty on Okinawa. Sometime after the husband's departure the two children were sent to live with their maternal grandparents in Florida. According to the wife, the children have lived in Florida since the end of August 1982. According to the husband, the children did not move to Florida until 30 December 1982. It is uncontroverted that the wife returned to Florida after the fall school semester. In any event, the wife and children were no longer in North Carolina when the husband returned from Okinawa in March 1983.

On 17 March 1983 the husband filed a verified Complaint asking the trial court to grant him temporary and permanent custody of the parties' two children, a divorce from bed and board, ownership of the parties' mobile home and personal property and injunctive relief. The same day, 17 March 1983, the trial court issued an ex parte temporary child custody order, awarding the husband custody of both children. On 6 April 1983 the wife moved to dismiss the action for lack of personal and subject matter jurisdiction. In support of her motion the wife submitted an affidavit stating that an action for divorce, child custody, child support and alimony, filed 18 March 1983, was pending in Florida. A hearing on the wife's motion to dismiss was held in October 1983.

From the trial court's 17 March 1983 ex parte order and its 1 December 1983 order, asserting jurisdiction "for all purposes," the wife appeals.

I

On appeal the wife assigns error to several of the trial court's evidentiary rulings in addition to its rulings on personal and subject matter jurisdiction.

II

Evidentiary Rulings

A.

Due to a medical problem the wife was unable to attend the hearing on her motion to dismiss. The wife's sole witness, her father, Joseph Bobba, testified that he had driven the children to Florida from North Carolina in late August 1982. Her attorney offered the depositions of seven Florida residents, attesting that the children had lived in Florida continuously since the end of August 1982. The wife contends that the trial court erred in admitting the depositions for corroborative purposes only, rather than as substantive evidence. For the following reasons, we disagree.

Generally, depositions of witnesses who are more than 100 miles from the hearing may be used as substantive evidence as long as the opposing party was present or represented at the taking of the deposition or had reasonable notice thereof. N.C.Gen.Stat. Sec. 1A-1, Rule 32 (1983). There is no question that the wife's depositions qualified under Rule 32 as substantive evidence. However, it is clear from the record that the depositions were only offered for corroborative purposes. Therefore, the trial court did not err in admitting them for corroborative purposes only.

B.

After the wife's father had testified that he took the children to stay with him in Florida in late August 1982, the husband gave conflicting testimony about telephone calls he had made to the children in North Carolina during the fall of 1982. In an effort to corroborate his own testimony, the husband introduced the contents of two letters he had received from the wife's father while the husband was on Okinawa. The letters suggested that the children first left North Carolina on 30 December 1982. The wife asserts that the trial court erred in admitting the two letters for corroborative purposes and then finding as facts:

that the [husband] received various letters and correspondence from the [wife's] father, Mr. Joseph C. Bobba, indicating that Mr. Bobba picked up the minor children on December 30, 1982 from the [wife] and that they have resided in the State of Florida since December 30, 1982.

We agree that the letters were inadmissible for corroborative purposes and further, that they improperly formed the basis for a substantive finding of fact. We, nevertheless, find the error harmless considering the weight of the other evidence presented.

Although the letters were admissible to impeach the wife's father's testimony, they were not admissible as corroborative evidence. See State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972) (prior inconsistent statements relating to material facts may be proved by others without first laying foundation on cross-examination). "[E]xtrajudicial declarations of someone other than the witness purportedly being corroborated" are not admissible to corroborate the witness unless they come within an exception to the hearsay rule, or unless they are not hearsay, under the circumstances. 1 H. Brandis, North Carolina Evidence Sec. 52, at 196 & nn. 67-70 (2d rev. ed. 1982). The contested letters fit neither of the above categories--a hearsay exception or non-hearsay. Thus, they were inadmissible as corroborative evidence. The error is harmless though because, in addition to the husband's own testimony, the children's presence in North Carolina in the fall of 1982 was substantiated by the testimony of three other competent witnesses. See Wilson County Bd. of Educ. v. Lamm, 276 N.C. 487, 173 S.E.2d 281 (1970).

III Jurisdiction

Finally, the wife contends that the trial court erred in entering the 17 March 1983 ex parte custody order and in assuming jurisdiction in the 1 December 1983 order, to determine permanent custody, when it lacked subject matter jurisdiction and personal jurisdiction over the nonresident wife. We are not persuaded. We conclude that the trial court correctly assumed jurisdiction in this matter.

The jurisdiction of the courts of this State to make child custody determinations is controlled by N.C.Gen.Stat. Sec. 50A-3 (1984), the jurisdiction provision of the Uniform Child Custody Jurisdiction Act (UCCJA). See N.C.Gen.Stat. Sec. 50-13.5(c)(2) (1984). G.S. Sec. 50A-3(a) provides four alternative bases for jurisdiction:

(1) This State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this State because of the child's removal or retention by a person claiming the child's custody or for other reasons, and a parent or person acting as parent continues to live in this State; or

(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child's parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence relevant to the child's present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

Once the trial court has gained jurisdiction by establishing one of the above bases, it may enter an ex parte order for temporary custody prior to service of process or notice, "[i]f the circumstances of the case render it appropriate." G.S. Sec. 50-13.5(d)(2) (1984); Story v. Story, 57 N.C.App. 509, 291 S.E.2d 923 (1982).

Significantly, " 'home state' means the state in which the child immediately preceding the time involved lived with the child's parents, a parent, or a person acting as parent, for at least six consecutive months...." N.C.Gen.Stat. Sec. 50A-2(5) (1984). Personal jurisdiction over the nonresident parent is not a requirement under the UCCJA. Garfield, Due Process Rights of Absent Parents in Interstate Custody Conflicts, 16 Ind.L.Rev. 445 (1983); Comment, 34 Mercer L.Rev. 861 (1983).

In its 17 March 1983 ex parte order the trial court concluded that it had jurisdiction over "the custody matter," the children and the parties. Based on the verified Complaint and the arguments of plaintiff's counsel, the trial court found that North Carolina satisfied two of the jurisdictional bases: the home state rule, G.S. Sec. 50A-3(a)(1), and the significant connection test, G.S. Sec. 50A-3(a)(2). After hearing evidence from the parties at the hearing on the motion to dismiss for lack of jurisdiction, the trial court in its 1 December 1983 order, found the identical alternative bases for jurisdiction--the home state rule and the significant connection test. We find...