Marcus v. Marcus
| Decision Date | 24 May 1999 |
| Citation | 993 S.W.2d 596 |
| Parties | Lorraine Burton Spiers MARCUS, Plaintiff/Appellee, v. Trent Wright MARCUS, Defendant/Appellant. |
| Court | Tennessee Supreme Court |
Daniel Loyd Taylor, Craig B. Flood, II, Memphis, for Appellant.
Caren B. Nichol, Memphis, for Appellee.
O P I N I O N
In this case, we consider whether the Chancery Court of Shelby County abused its discretion in declining jurisdiction of a suit for the modification of child custody. Apparently finding that the plaintiff was barred from filing suit in Tennessee due to her violation of previous child custody orders entered in North Carolina, the trial court dismissed the plaintiff's complaint. The Court of Appeals reversed. Because we find that the trial court acted within its discretion as set forth in Tenn.Code Ann. § 36-6-209(b) (1996), we reverse the Court of Appeals and reinstate the trial court's order dismissing the plaintiff's complaint.
Plaintiff/Appellee Lorraine Burton Spiers Marcus ("the Wife") and Defendant/Appellant Trent Wright Marcus ("the Husband") were married in Memphis in 1990. Shortly thereafter, the parties moved to Winston-Salem, North Carolina, where the Husband was attending medical school. The parties' only child, Natalie Spiers Marcus, was born in November of 1991. The parties separated in the Fall of 1992.
In response to a petition filed by the Husband seeking custody of the child and a counterpetition filed by the Wife seeking custody, child support, and alimony, a North Carolina court entered an order on March 16, 1993. In this order, the North Carolina court found:
That both the [Husband] and the [Wife] are fit and proper parents to have the joint legal care, custody, and control of the minor child. That it would be in the best interests of the minor child that her primary physical care, custody, and control be awarded to the [Wife] subject to secondary physical custody with the [Husband] as set out herein.
The court set forth a visitation schedule and awarded alimony and child support to the Wife.
Around January of 1993, shortly before this North Carolina order was entered, the Wife and the child relocated to Memphis. 1 In July of 1993, the Husband moved to Arkansas, where he filed a suit for divorce, division of property, and a finding that neither party was entitled to alimony. An Arkansas court granted the Wife's motion to dismiss all of the Husband's requests for relief except for divorce. The Arkansas court scheduled a hearing on the complaint for divorce in December of 1994.
While these proceedings were occurring in Arkansas, the Husband also filed a petition in North Carolina to alter the March 1993 order. Following a hearing on this motion in which both parties were represented by counsel, the North Carolina court, on September 30, 1993, entered an order setting forth a more specific visitation schedule. The order stated that all other aspects of the March 1993 order would remain in effect and that "this cause is retained for further orders of this Court."
In response to a show cause motion filed by the Husband, the North Carolina court, on November 22, 1994, entered an order finding that the Wife was in civil and criminal contempt for failure to adhere to the visitation schedule set forth in the September 1993 order. The North Carolina court ordered that the Wife be incarcerated until she complied and that she pay for the Husband's attorney's fees. Although the Wife was not present during this hearing, she was represented by counsel. Interestingly, another order was also entered by a different North Carolina judge on the same date, November 22, 1994. The order stated that it was in response to the Husband's "Motion for Review, requesting, among other things, modification of [the Husband's] secondary physical custody and termination of [the Wife's] alimony." The order further stated that the Wife "appeared in Court represented by her attorneys." This order made no reference to the contempt order or any allegation that the Wife had failed to comply with the visitation schedule. The North Carolina court simply reaffirmed the existing joint custody arrangement, increased the Husband's alimony and child support obligation, and directed that he pay the Wife's attorney's fees. The order noted that although both parties were living out-of-state, they were residents of North Carolina six months prior to the filing of the action.
The record includes an additional contempt order entered by the North Carolina court on December 16, 1994. Although the Wife was not present, she was represented by counsel at the hearing. Asserting that it retained jurisdiction over the matter, the North Carolina court found that the Wife had "willfully and intentionally violated" the September 30, 1993 order relating to the visitation schedule and the November 22, 1994 contempt order. The court again found the Wife to be in civil and criminal contempt, ordered that she be incarcerated, and directed that she pay the Husband's attorney's fees.
A few days later, on December 21, 1994, the Arkansas court held a hearing regarding the Husband's petition for divorce. After finding that the Husband was a resident of Arkansas and, thus, that the court had jurisdiction, the court granted the Husband a divorce "on the ground of general indignities," but refused to make a ruling "on any other matter." This order was entered January 11, 1995.
Meanwhile, on December 19, 1994, the Wife filed a complaint for divorce and injunctive relief in the Chancery Court of Shelby County, Tennessee. The complaint sought a divorce, a division of property, an award of child support and alimony, and a finding that the Wife was entitled to custody of Natalie. 2 The Wife's complaint includes the following statement:
Plaintiff is aware of, and calls this court's attention to, a custody order which was entered on March 16, 1993, by the General Court of Justice, District Court Division, Forsyth County, North Carolina, Docket number 92 CVD 6246. The Order awarded legal custody of the parties' minor child jointly to the Plaintiff and Defendant. It further awarded primary physical care, custody and control of the minor child to Plaintiff and secondary physical custody to the Defendant. No divorce action is pending in North Carolina.
Plaintiff avers that the North Carolina Court has continued to exercise jurisdiction over the custody issue although it does not have the authority to do so. Plaintiff further avers that pursuant to Tennessee Code Annotated section 36-6-207(a) and the Federal Parental Kidnapping Prevention Act, U.S.C. 1738A, the North Carolina Court is not "exercising jurisdiction substantially in conformity with this part" in that (1) neither of the parties is a domiciliary of the state of North Carolina, (2) neither party continues to reside in North Carolina, as the Plaintiff left the state on December 30, 1992 and the Defendant left the state on July 1, 1993, and (3) Tennessee is the "home state" of the parties' child.
On April 18, 1995, the Wife filed in the Chancery Court a "Petition to Enroll and Modify Foreign Decrees and for Injunctive Relief." Attached as exhibits to the petition were the North Carolina court orders dated March 16, 1993, September 30, 1993, and November 22, 1994, 3 as well as the Arkansas court orders dated November 10, 1993 and January 11, 1995. The petition alleged that these five orders "are entitled to full faith and credit in the courts of the State of Tennessee." The petition further alleged that a material change of circumstances had occurred since the entry of these out-of-state orders so as to warrant the Wife being awarded sole custody of the child.
In response to a motion to dismiss filed by the Husband, the Chancery Court of Shelby County held a hearing on this matter on August 31, 1995. At the hearing, counsel for the Husband cited the contempt orders entered by the North Carolina court and contended that the Shelby County trial court should refuse to exercise jurisdiction due to the Wife's "unclean hands." The Wife responded that the contempt orders were void because North Carolina did not have jurisdiction over the out-of-state parties. On November 14, 1995, the Chancery Court of Shelby County granted the Husband's motion to dismiss in a non-specific order. Subsequently, the Wife filed a motion to alter or amend, which was denied by the trial court.
While this action was being appealed to the Tennessee Court of Appeals, another order was entered by the North Carolina court on January 9, 1997 pursuant to a change of custody motion filed by the Husband. 4 Prior to a hearing on the matter, the court granted a motion to withdraw filed by counsel for the Wife and signed by the Wife. The Wife did not appear at the hearing on this motion and, thus, neither the Wife nor her counsel were present. The order refers to the litigation history as well as the Chancery Court of Shelby County's action "deferring this matter to the North Carolina Court which has retained jurisdiction over the parties' minor child, Natalie." Finding that a "substantial and material change of circumstances justifying a modification" of the North Carolina court's previous orders exists, the North Carolina court awarded custody of the child to the Husband. 5 The court also ordered that the Husband's child support obligations should be stayed. Despite insisting that the North Carolina court's actions were void, the Wife agreed to turn over physical custody of the child to the Husband. 6
On July 1, 1997, the Tennessee Court of Appeals reversed the Chancery Court of Shelby County's dismissal of the Wife's complaint. Despite labeling the Wife's defiance of the North Carolina orders as "clearly reprehensible," the Court of Appeals found as follows:
But she cannot now be repelled because of the offense she offered to the North Carolina Court, see, Haynes v. Haynes, 904...
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