Johnston v. Johnston , 1976 N.C. App. LEXIS 2473 ( 1976 )

ARNOLD, Judge.

Defendant’s contention that the trial court erred in holding that it had jurisdiction of the parties and the subject matter of this action is without merit.

G.S. 50-13.5 (c) (2) provides:

“The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child when:

a. The minor child resides, has his domicile, or is physically present in this State, or

b. When the court has personal jurisdiction of the person, . . . having actual care, control, and custody of the minor child.” [Emphasis added.]

On 23 June 1975, according to the record, personal service of defendant was acquired. Pursuant to G.S. 50-13.5 (c) (2) b the court properly exercised jurisdiction in this matter.

Defendant argues that the Protective Custody Order of the Memphis Juvenile Court should be given full faith and credit because it was entered prior to any order of custody entered by a North Carolina court. This is unfounded. “The Full Faith and Credit Clause of the United States Constitution, Article IV, § 1, does not conclusively bind the North Carolina courts to give greater effect to a decree of another state than it has in that state, or to treat as final and conclusive an order of a sister state which is interlocutory in nature.” In re Kluttz, 7 N.C. App. 383, 385, 172 S.E. 2d 95 (1970). The District Court in Mecklenburg County was not required in this case to give full faith and credit to the temporary order of the Juvenile Court of Memphis, Tennessee.

Defendant’s final contention that the trial court abused its discretion by retaining jurisdiction of this action pursuant to G.S. 50-13.5 is groundless.

G.S. 50-13.5(c) (5) provides: “If at any time a court of this State having jurisdiction of an action or proceeding for the custody of a minor child finds as a fact that a court in another state has assumed jurisdiction to determine the matter, and that the best interest of the child and the parties would be served by having the matter disposed of in that jurisdiction, the court of this State may, in its discretion, refuse to exercise jurisdiction, and dismiss the action or proceeding or may retain jurisdiction and enter such orders from time to time as the interest of the child may require.”

The trial judge found that the parties and the two minor children resided in Mecklenburg County from 1973 until 10 March 1975, and that the witnesses who could testify regarding the fitness of either of the parties, and regarding what might be in the best interest of the two minor children, resided in Mecklenburg County. There was no evidence offered in contradiction to these findings, and we find no basis to show that the trial judge abused his discretion by not relinquishing jurisdiction to the Tennessee court.

Affirmed.

Judges Britt and Vaughn concur.