In Re Kluttz

172 S.E.2d 95 (1970) 7 N.C. App. 383

In re Devin R. KLUTTZ, Loree Kluttz and Michelle T. Kluttz.

No. 7019SC95.

Court of Appeals of North Carolina.

February 25, 1970.

Woodson, Hudson & Busby, by Max Busby, Salisbury, for petitioner appellee.

Johnson, Davis & Horton, by James C. Davis and Clarence E. Horton, Jr., Concord, for respondent appellants.

VAUGHN, Judge.

The record on appeal contains petitioner's application, the writ of habeas corpus, the order of the California court, a transcript of the colloquy between the court and counsel, and Judge Seay's order. It appears from the transcript of the colloquy between the court and counsel for respondents that the trial judge took the position that the only issue before him was the legality of the California order and declined to hear testimony in the case. Respondents' attorney requested the court to consider certain affidavits and the testimony of the children. The court declined and stated to respondents' counsel:

"The thing to do was for him to appeal from this order. I don't see anything other than to say that the full faith and credit clause of the United States Constitution prevents me from doing anything other than issuing whatever order is necessary to give full faith and credit to the California order, and that it be complied with. It's not a matter for me to decide who gets custody, somebody else already decided."

The order from which respondents appeal recites in part:

"[T]he court finding as a fact that the Superior Court of the State of California for the County of San Bernardino had jurisdiction over the parties and the subject matter and that said order is entitled to full faith and credit and that under said order Sharron R. Kluttz is entitled to custody of the aforementioned minor children."

The learned trial judge erred in declining to hear respondents' evidence on the ground that the Full Faith and Credit Clause of the Constitution prevented him from issuing any order other than one which would require compliance with the order previously entered by the California court.

The Full Faith and Credit Clause of the United States Constitution, Article 4, § 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. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140. The courts of this state have jurisdiction to enter orders providing for the custody of minor children when the children are physically present in this state. G.S. § 50-13.5(c) (2) a. When an order for custody has been entered by a court in another state, a court of this state may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order. G.S. § 50-13.7(b); In re Marlowe, 268 N.C. 197, 150 S.E.2d 204.

This is not to say that jurisdiction must be exercised in every custody proceeding where jurisdiction exists. Upon a finding of 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 may, in its discretion, refuse to exercise jurisdiction. G.S. § 50-13.5 (c) (5). This statute, however, has no application to this appeal because there was no finding of fact that the best interests of the children and the parties would be served by having the matter disposed of in the California court, and it does not appear that the trial judge was acting in the exercise of the discretion granted him.

The judgment entered below is set aside and the cause is remanded for hearing in compliance with this opinion and applicable rules of law.

Reversed.

MALLARD, C. J., and MORRIS, J., concur.