Jacobs Pope v. Jacobs

276 S.E.2d 487 (1981)

Frances J. Jacobs POPE
v.
William S. JACOBS.

No. 8020DC837.

Court of Appeals of North Carolina.

April 7, 1981.

Hopkins, Hopkins & Tucker by William C. Tucker, Albemarle, for plaintiff-appellant.

Delores K. VanHorn in pro. per. for the Isabella County Friend of the Court.

No brief for defendant.

WEBB, Judge.

The appellant's first assignment of error deals with the court's allowing Thomas J. Plachta, an attorney licensed in the State of Michigan to appear for the Isabella County Friend of the Court. The court did not require Mr. Plachta to comply with G.S. 84-4.1 which governs the appearance by out-of-state attorneys in the courts of this state. The appellant, while conceding that it is in the court's discretion as to allowing an out-of-state attorney to participate in a trial in this state, argues that the court has no discretion if there is not a compliance with G.S. 84-4.1. Although there was not a compliance with the statutory requirements in allowing Mr. Plachta to represent the Isabella County Friend of the Court the appellant has not demonstrated any prejudice to her by this error. This assignment of error is overruled.

The appellant's second assignment of error deals with the court's declining to exercise jurisdiction. The case sub judice is governed by the Uniform Child Custody Jurisdiction Act, Chapter 50A of the North Carolina General Statutes. Among the act's stated purposes according to G.S. 50A-1 are to "[a]void jurisdictional competition" and to "[p]romote cooperation with the courts of other states." G.S. 50A-3 provides:

(a) A court of this State 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 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

....

Under the allegations of the complaint and the proof offered at the hearing, the court was authorized to take jurisdiction and award custody under the above-quoted provisions of the statute.

The question posed by this appeal is whether the court committed error by declining to exercise its authority to assume jurisdiction. G.S. 50A-7 provides:

(a) A court which has jurisdiction under this Chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

(b) A finding of inconvenient forum may be made upon the court's own motion or upon motion of a party or a guardian ad litem or other representative of the child.

(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

(1) If another state is or recently was the child's home state;

(2) If another state has a closer connection with the child and the child's family or with the child and one or more of the contestants;

(3) If substantial evidence relevant to the child's present or future care, protection, training, and personal relationships is more readily available in another state;

(4) If the parties have agreed on another forum which is no less appropriate; and

(5) If the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in G.S. 50A-1.

In determining whether it was in the best interest of the children that the District Court of Stanly County decline to exercise jurisdiction, the court had before it evidence that Michigan is the home state of the children; Michigan has had a closer connection with the family of the children than North Carolina; and the evidence as to the treatment of the children by the children's father who had custody of the children is more readily available in Michigan than in North Carolina. We hold the court did not err in declining to exercise jurisdiction.

Affirmed.

HEDRICK and HILL, JJ., concur.