Jones v. Whimper, 366 NC 367

MARQUES COLE JONES v. NIAH DRAKE WHIMPER
No. 89A12
(Filed 25 January 2013)
1. Child Custody and Support — jurisdiction — Parental Kidnapping
Prevention Act — Uniform Child Custody Jurisdiction and
Enforcement Act
“[S]ubstantial compliance” with the federal Parental Kidnapping
Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement
Act as enacted in this state requires our courts to determine whether the
foreign state has substantially the same type of jurisdiction that we have.
2. Child Custody and Support — communications between courts —
Parental Kidnapping Prevention Act — Uniform Child Custody
Jurisdiction and Enforcement Act
N.C.G.S. § 50A-110 applies to all communications between courts
attempting to determine jurisdiction in custody cases involving the Parental
Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and
Enforcement Act.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel
of the Court of Appeals, ___ N.C. App. ___, 727 S.E.2d 700 (2012), affirming an
order declining jurisdiction entered on 21 February 2011 by Judge P. Gwynett
Hilburn in District Court, Pitt County. Heard in the Supreme Court on 5
September 2012.
Bishop & Smith, PLLC, by Keith A. Bishop, for plaintiff-appellant.
W. Gregory Duke for defendant-appellee.
PER CURIAM.
JONES V. WHIMPER
Opinion of the Court
[1] The holding of the majority opinion of the Court of Appeals is affirmed;
however, to the extent that the majority opinion has construed the federal Parental
Kidnapping Prevention Act (“PKPA”) and the Uniform Child-Custody Jurisdiction
and Enforcement Act (“UCCJEA”) as enacted in this state as requiring a threshold
of “substantial compliance” with these statutes, the majority opinion is vacated.
Instead, “substantial compliance” as set forth in our General Statutes requires our
courts to determine whether the foreign state has substantially the same type of
jurisdiction that we have. N.C.G.S. § 50A-206(b) (2011). As the Court of Appeals
properly noted, but misapprehended, “[i]f the court of the state having jurisdiction
substantially in accordance with [the UCCJEA] does not determine that the court of
this State is a more appropriate forum, the court of this State shall dismiss the
proceeding.” Id. Therefore, the subsection 50A-206(b) determination is limited to
whether the court of the state having jurisdiction has the same type of jurisdiction
that North Carolina has, not whether “the statutory prerequisites for determining
child custody jurisdiction were substantially complied with in” a given case. Jones
v. Whimper, __ N.C. App. __, __, 727 S.E.2d 700, 704 (2012).
[2] In addition, that portion of the Court of Appeals’ opinion that holds that
section 50A-110 of the General Statutes only applies to discretionary
communications is vacated. We hold that section 50A-110 applies to all
communications between courts attempting to determine jurisdiction in these
circumstances. We find support in the official commentary to the section, which
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JONES V. WHIMPER
Opinion of the Court
states that “[t]his section emphasizes the role of judicial communications. It
authorizes a court to communicate concerning any proceeding arising under this
Act.” N.C.G.S. § 50A-110 official cmt. (2011) (emphasis added); see Parsons v.
Jefferson-Pilot Corp., 333 N.C. 420, 425, 426 S.E.2d 685, 689 (1993) (noting that
“the commentary to a statutory provision can be helpful in some cases in discerning
legislative intent” and that while not binding “could be given substantial weight in
our efforts to discern legislative intent”). The commentary goes on to mention
section 206 specifically, stating that “[c]ommunications between courts is required
under Sections 204, 206, and 306, and is strongly suggested in applying Section
207.” N.C.G.S. § 50A-110 official cmt.
Ultimately, North Carolina does not have jurisdiction here. As the New
Jersey court declined to cede jurisdiction to North Carolina, the case remained in
New Jersey. We therefore affirm the Court of Appeals’ affirmation of the trial
court’s order declining to exercise jurisdiction. As such, remand would serve no
purpose.
MODIFIED AND AFFIRMED.
Justice BEASLEY did not participate in the consideration or decision of this
case.
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