Nabors v. Farrell , 53 N.C. App. 345 ( 1981 )

280 S.E.2d 763 (1981)

Georgia Sloan NABORS
v.
Michael J. FARRELL and
Michael J. FARRELL
v.
Georgia A. FARRELL (Nabors).

Nos. 8118DC22, 8118DC23.

Court of Appeals of North Carolina.

August 4, 1981.

Eugene S. Tanner, Jr., Greensboro, for plaintiff-appellant-appellee.

Graham, Cooke, Miles & Daisy by Donald T. Bogan, Greensboro, for defendant-appellee-appellant.

HILL, Judge.

The Guilford County court should have dismissed Wife's action for lack of jurisdiction. G.S. 50A-6(a) provides that:

If at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Chapter, a court of this State shall not exercise its jurisdiction under this Chapter, unless the proceeding is stayed by the court of the other state .... (Emphasis added.)

Clearly, at the time Wife filed her action in Guilford County seeking modification of the original custody decree, Husband's modification action was pending in Massachusetts. The question we must answer is whether Massachusetts was exercising jurisdiction substantially in conformity with Chapter 50A.

Massachusetts has not enacted the Uniform Child Custody Jurisdiction Act. Nevertheless, the Act is not reciprocal and in order to determine whether Massachusetts properly exercised jurisdiction, we look to see whether the modification decree was made under factual circumstances meeting the jurisdictional standards of G.S. 50A.

G.S. 50A-3(a) provides in part that:

A court ... authorized to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

. . . . .

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

Husband, still living in Massachusetts, clearly had significant connections with Massachusetts. The children clearly had significant connections with Massachusetts with regard to the issue of visitation. Massachusetts clearly had substantial evidence concerning the children's welfare during the time they were in that state, and it was in the best interest of the children that Massachusetts exercise jurisdiction over matters relating to their stay in that state. Because Wife submitted to the jurisdiction of the Massachusetts court when her attorney made a general appearance at the hearing on Husband's complaint, that court's modification order is binding on her. See G.S. 50A-13 and 50A-12.

Judge Williams concluded and decreed that the Massachusetts order should be recognized and enforced as a decree of this State's courts. The judge went on to deny Wife's motion for temporary custody and modification of the original divorce decree. We hold that the more correct action would have been for Judge Williams simply to dismiss Wife's action for lack of jurisdiction. For the reasons stated above, Wife's assignments of error are overruled.

Husband has brought forth one assignment of error in No. 8118DC22. Husband contends that Judge Campbell erred in denying his motion of 1 August 1980 asking that Wife be held in contempt for failing to abide by the order entered in Massachusetts on 30 April 1980 and filed with the clerk of court on 1 August. We disagree.

Judge Campbell concluded that pending Wife's appeal of Judge Williams' order, the trial court was without jurisdiction to punish for contempt of its orders. We hold that it would have been more correct for the judge to conclude that he could not rule on Husband's motion for contempt when the court had no jurisdiction of the action in which the motion had been made. Husband's assignment of error is overruled.

Husband has brought forth another assignment of error in No. 8118DC23. Husband contends that Judge Williams erred by decreeing in his order of 2 October 1980 that the pendency of No. 8118DC22 abated Husband's motion for contempt in No. 8118DC23. We agree.

Contrary to Judge Williams' conclusion, Husband cannot obtain the relief sought in No. 8118DC23 by his motion for contempt in No. 8118DC22. Husband's motion for contempt in the latter action must be heard.

No. 8118DC22—Modified and Affirmed.

No. 8118DC23—Reversed.

ROBERT M. MARTIN and CLARK, JJ., concur.