Potter v. Potter

• Citation: 131 NC App. 1,505 S.E.2d 147
• Decision Date: 06 October 1998
• Docket Number: No. COA97-398.,COA97-398.
• Parties: Jerry Leonard POTTER, Jr., Plaintiff, v. Cynthia Elizabeth POTTER, Defendant.
• Court: Court of Appeal of North Carolina (US)

505 S.E.2d 147

131 NC App. 1

Jerry Leonard POTTER, Jr., Plaintiff, v. Cynthia Elizabeth POTTER, Defendant.

No. COA97-398.

Court of Appeals of North Carolina.

October 6, 1998.

Joseph W. Seegers, Newland, for plaintiff-appellee.

Legal Services of the Blue Ridge, Inc. by Karla P. Rusch, Boone, for defendant-appellant.

JOHN, Judge.

Defendant appeals the trial court's 6 September 1996 order denying her motion to dismiss as well as the court's subsequent 17 October 1996 "Judgment" awarding primary physical custody of the parties' two minor children to plaintiff. We reverse the trial court's 6 September 1996 ruling and consequently vacate its later "Judgment."

Relevant facts and procedural information include the following: Plaintiff and defendant were married 5 January 1993 in Tennessee. Two children, Jonathan Robert (Jonathan), born 11 June 1992, and Candice Michelle (Candice), born 30 September 1989, were legitimized by the marriage. During the marriage, plaintiff and defendant separated on several occasions for brief periods of time, finally doing so permanently during the summer of 1995. Jonathan and Candice were both born in Tennessee and lived in that state until the parties' separation.

On 25 July 1996, plaintiff filed the instant action seeking divorce and custody of Jonathan and Candice. Defendant's 19 August 1996 answer included a counterclaim and motion to dismiss for lack of subject matter jurisdiction pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1)(1997) (Rule 12(b)(1)) (defendant's motion).

At the hearing on defendant's motion, the parties disagreed regarding the children's primary residence following the separation. Defendant maintained the children lived in Tennessee during the week and were registered in the Tennessee school system. According to her, the children spent weekends, from Friday evening to Sunday evening, at the home of plaintiff's parents in North Carolina. Defendant asserted the children "lived with [her] all their life" except for "weekends and maybe ... the 4th of July." She acknowledged Jonathan had received treatment in both Tennessee and North Carolina for "lazy eye," a chronic eye condition.

On the other hand, plaintiff asserted the children spent weekends in North Carolina, as well as "when we'd go pick them up and they'd stay the night" during the week and during holidays. Plaintiff approximated the children were with him in North Carolina "[s]omewhere near half" the time. Following one visit on 15 July 1996 during which Jonathan had a medical appointment in North Carolina, plaintiff's mother did not return the children to defendant in Tennessee.

At the hearing, the trial court expressed concern that it was not "in the best interest to just start all over again in Tennessee," and that "just looking at the Affidavits on their face, [it] would conclude that Tennessee would be the state that has jurisdiction." However, the court continued, "the children do have a significant connection to this state because of their repeated visitation two days per week," and that given the proximity of the state border, "it's not so unusual to have everything so jumbled up that really either state could hear this case."

Ruling from the bench and specifically citing N.C.G.S. § 50A-3(a)(2) (1989) of North Carolina's Uniform Child Custody Jurisdiction Act (UCCJA), the trial court denied defendant's motion on grounds the children and "one contesting [party]," i.e., plaintiff, had a significant connection with this State. A written order denying defendant's motion was filed 6 September 1996, a temporary custody order in favor of plaintiff being filed the same date. Plaintiff's reply to defendant's counterclaim was filed 16 September 1996. Following a full hearing 25 September 1996, the trial court awarded primary physical custody to plaintiff. Defendant timely appealed to this Court.

In her initial assignment of error, defendant challenges the court's denial of her motion to dismiss for lack of subject matter jurisdiction. The UCCJA controls the issue of jurisdiction in child custody cases. Tataragasi v. Tataragasi, 124 N.C.App. 255, 266, 477 S.E.2d 239, 245 (1996),disc. review denied, 345 N.C. 760, 485 S.E.2d 309 (1997). The section contains four bases upon which North Carolina courts are afforded jurisdiction:

(1) This State (i) is the home state of the child at the time of the 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.

N.C.G.S. § 50A-3(a). No preference is expressed in the statute between the home state alternative provided in G.S. § 50A-3(a)(1) and the significant connection basis in G.S. § 50A-3(a)(2).

Notwithstanding, jurisdiction in child custody matters is simultaneously governed by the federal Parental Kidnapping Prevention Act of 1980 (PKPA). 28 U.S.C. § 1738A (1998); In re Custody of Bhatti, 98 N.C.App. 493, 494, 391 S.E.2d 201, 202 (1990). The PKPA "establishes national policy in the area of custody jurisdiction," Gasser v. Sperry, 93 N.C.App. 72, 74, 376 S.E.2d 478, 480 (1989), and provides full faith and credit in every state for decrees entered in conformity therewith. 28 U.S.C. § 1738A.

The PKPA and the UCCJA "provide[ ] substantially the same jurisdictional prerequisites." Beck v. Beck, 123 N.C.App. 629, 632, 473 S.E.2d 789, 790 (1996). For example, both permit the state wherein a custody claim is filed to assume jurisdiction if that state is the home state of the affected child. 28 U.S.C. § 1738A(c)(2)(A); Beck, 123 N.C.App. at 632, 473 S.E.2d at 790. Moreover, in terms similar to G.S. § 50A-2(5), the PKPA defines "home state" as:

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.... Periods of temporary absence of any of such persons are counted as part of the six-month or other period.

28 U.S.C. § 1738A(b)(4).

Unlike the UCCJA, however, the PKPA limits assumption of jurisdiction on the basis of significant connection in initial custody determinations to instances in which no state qualifies as the home state. 28 U.S.C. § 1738A (c)(2)(B); Beck, 123 N.C.App. at 632, 473 S.E.2d at 790. In the words of the PKPA,

A child custody determination made by a court of a State is consistent with the provisions of this section only if—

....

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

28 U.S.C. § 1738A(c) (emphasis added).

An apparent conflict thus exists between this state's UCCJA, providing home state and significant connection bases for jurisdiction as equal alternatives, and the federally enacted PKPA, permitting the significant connection alternative only in the absence of a home state. This Court has previously held that to the extent any state custody statute conflicts with provisions of the PKPA, the federal enactment controls. Gasser, 93 N.C.App. at 74-75, 376 S.E.2d at 480; see also Thompson v. Thompson, 484 U.S. 174, 181, 108 S.Ct. 513, 517, 98 L.Ed.2d 512, 521 (1988)

(PKPA imposes uniform national standards for allocating and enforcing custody determinations). Accordingly, a trial court may assume significant connection jurisdiction under G.S. § 50A-3(a)(2) in an initial child custody matter only upon proper determination by the court that the child in question has no home state as defined in 28 U.S.C. § 1738A(b)(4) at the time the custody action pending before the trial court was commenced.

The foregoing holding is consistent with the strong home state preference expressed in our jurisprudence. For example, this Court has refused to recognize a foreign custody determination dependent upon significant connection jurisdiction when North Carolina was the home state. See, e.g., Beck, 123 N.C.App. 629,

473 S.E.2d 789 (trial court erred in...