Bryan v. Bryan , 66 N.C. App. 461 ( 1984 )

311 S.E.2d 313 (1984)

John Hugh BRYAN
v.
Candace Kendall BRYAN.

No. 8312DC102.

Court of Appeals of North Carolina.

February 7, 1984.

Blackwell, Thompson, Swaringen, Johnson & Thompson, P.A., by John V. Blackwell, Jr., Fayetteville, for plaintiff, appellee.

Skvarla, Wyrick & From, P.A. by Samuel T. Wyrick, III, Raleigh and Harris, Sweeny & Mitchell by Ronnie M. Mitchell, Fayetteville, for defendant, appellant.

HEDRICK, Judge.

The order appealed from is essentially an order denying defendant's motion to dismiss the proceeding based on defendant's challenge of the subject matter jurisdiction of the Cumberland County District Court to modify the custody order of the Court of Common Pleas of Montgomery County, Pennsylvania. Such an order is interlocutory and ordinarily not immediately appealable. Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982); Shaver v. Construction Co., 54 N.C.App. 486, 283 S.E.2d 526 (1981). We treat the appeal as a petition for writ of certiorari, however, and allow the same so that we may treat one aspect of the case on its merits.

Assuming arguendo that the District Court in this proceeding has jurisdiction pursuant to N.C.Gen.Stat.Sec. 50A-3 to modify the custody order of the Pennsylvania court, we must determine whether the District Court had authority to exercise its jurisdiction.

N.C.Gen.Stat.Sec. 50A-8(b) in pertinent part provides:

Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody.

(Emphasis added). When the record shows that the parent seeking modification of a custody order of another state has improperly retained the child after a visit, the law does not allow a district court in this state to exercise its jurisdiction to modify the order absent findings of fact in support of the conclusion that the interest of the child requires it to do so.

In the present case the record affirmatively discloses that defendant is entitled to custody of Kendle pursuant to the Pennsylvania decree. The child was visiting plaintiff pursuant to the same decree. One day before Kendle was to be returned to his mother, plaintiff filed a motion in the cause for a change of custody. In neither the ex parte order entered 27 August 1982 nor the decision continuing the effect of the ex parte order, entered 14 September 1982, did the trial judge find that plaintiff's retention of the child in this state was with the defendant's consent or that the interest of the child required the District Court to exercise its jurisdiction.

We hold that the trial court erred in concluding that it had authority to exercise its jurisdiction to modify the Pennsylvania custody order, and the order appealed from must thus be vacated. It therefore follows that the District Court was without authority to exercise its jurisdiction regarding custody of Kendle subsequent to the order appealed from.

Vacated.

BRASWELL and EAGLES, JJ., concur.