Jones v. Whimper

McCullough, Judge.

Marques Cole Jones (“plaintiff’) appeals from the trial court’s order declining to exercise jurisdiction over plaintiff’s motion for emergency custody and his complaint for custody of his minor child. We affirm.

I. Background

Plaintiff is the biological father of the minor child Z.J. Niah Drake Whimper (“defendant”) is the biological mother of Z.J. Z.J. was born in Greenville, Pitt County, North Carolina, on 23 December 2004. From the record, it appears the minor child resided with defendant in both Greenville and Havelock, North Carolina, following the child’s birth. On 29 September 2006, defendant married Guy Whimper, Jr. (“Whimper”).

On 22 December 2006, defendant filed a child custody complaint in Pitt County District Court seeking primary physical custody of Z.J. Plaintiff and defendant participated in court-ordered mediation but were unable to reach a mediated parenting agreement. Thereafter, in July 2007, defendant filed a voluntary dismissal of her pending North Carolina child custody action. Defendant then relocated to the State of New Jersey with the minor child and Whimper in August 2007.

On 4 May 2009, Whimper filed a verified complaint for adoption of Z.J. in the Superior Court of New Jersey. On 1 September 2009, defendant filed her consent to the adoption of Z.J. by Whimper. On 12 November 2009, Judge Margaret M. Foti (“Judge Foti”), presiding judge over the matter in New Jersey, entered an order preserving the custodial status quo until the matter could be heard.

On 8 December 2009, plaintiff filed a civil action complaint in the Superior Court of New Jersey seeking child custody and support and reasonable parenting time. On 13 January 2010, Judge Foti entered a civil action order in the Superior Court of New Jersey consolidating Whimper’s adoption action and plaintiff’s custody action and setting a hearing date for 20 September 2010. The record shows that defendant and Whimper moved back to North Carolina with the minor child, this time to Charlotte, in August 2010.

On 9 November 2010, plaintiff filed notice to dismiss the proceedings in the Superior Court of New Jersey on forum non conveniens grounds. On 15 November 2010, Judge Foti ordered that the Superior Court of New Jersey would retain jurisdiction over the matter and denied plaintiff’s motion to dismiss. On the same day, plaintiff filed the present child custody action in Pitt County, North Carolina. In his complaint, plaintiff alleged that defendant’s residence with the minor child in the State of New Jersey was temporary in nature and that the home state of both defendant and the minor child remained North Carolina. However, plaintiff’s complaint acknowledged that he was a party to Whimper’s adoption action, which was still pending in New Jersey at the time defendant filed the present complaint. On 23 November 2010, Judge Foti sent written notification of the pending proceedings in New Jersey Superior Court to Judge Hilbum, the presiding judge in plaintiff’s current action in Pitt County District Court. In her letter, Judge Foti indicated that she had denied plaintiff’s motion to dismiss the pending child custody matters in New Jersey, which had asserted forum non conveniens grounds. Judge Foti also indicated in her letter to Judge Hilbum that plaintiff had filed a child custody action in New Jersey on 8 December 2009 which had been consolidated for trial in New Jersey and that “[t]he subject minor lived with his mother and step-father in New Jersey at the time these actions were filed.”

On 1 December 2010, Judge Hilburn ordered that jurisdiction over all matters concerning Z.J. shall be in the State of New Jersey. However, on 10 December 2010, Judge Hilburn set aside the previous order and ordered a hearing on the jurisdiction issue. In the 10 December 2010 order, Judge Hilburn indicated that counsel for plaintiff and Judge Foti would participate by telephone regarding the jurisdiction issue. On 2 February 2011, Judge Hilburn notified Judge Foti by email of the possibility of a telephone conference between the two judges and counsel for both parties regarding the jurisdiction issue, stating that Judge Hilbum had asked “the attorneys to contact [the family court coordinator] if they feel that a telephone conference should take place between all of us regarding the jurisdiction issue. Otherwise, the issue of jurisdiction will be decided by the two [judges].” The record discloses no other communications between the two judges, nor whether any conference between the two judges and the parties took place.

On 21 February 2011, Judge Hilburn entered an order declining to exercise jurisdiction over the matters of custody and child support relating to Z.J. Plaintiff timely filed written notice of appeal from the trial court’s order on 14 March 2011.

II. Subject-matter jurisdiction: simultaneous child custody proceedings

On appeal, plaintiff argues the trial court’s order declining to exercise jurisdiction in the present child custody action must be reversed for two reasons: (1) the trial court held an ex parte communication with the New Jersey trial judge and violated the mandatory provisions of N.C. Gen. Stat. § 50A-110 (2009); and (2) the trial court failed to provide plaintiff an opportunity to present facts and legal arguments before making its custody determination. Although plaintiff presents these arguments separately in his brief, they essentially address the same issue: What is required of a North Carolina trial court in determining jurisdiction in child custody actions when simultaneous proceedings are pending in another state?

In reviewing a question of subject matter jurisdiction, our standard of review is de novo. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). To determine jurisdiction of child custody issues, the trial court must follow the mandates of the federal Parental Kidnapping Prevention Act (“PKPA”) and the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) as enacted in North Carolina. Williams v. Williams, 110 N.C. App. 406, 409, 430 S.E.2d 277, 280 (1993). When there are simultaneous proceedings in other states, the UCCJEA provides, with regard to jurisdiction:

Except as otherwise provided ... a court of this State may not exercise its jurisdiction under this Part if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this Article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this State is a more convenient forum ....

N.C. Gen. Stat. § 50A-206(a) (2009) (emphasis added). Similarly, the PKPA provides in part:

A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.

28 U.S.C. § 1738A(g) (2006) (emphasis added). Thus, when there is an action already pending in another state, the trial court in North Carolina must address first the threshold question of whether the other state is exercising jurisdiction in substantial conformity with jurisdictional statutes controlling in this state. See Davis v. Davis, 53 N.C. App. 531, 539-40, 281 S.E.2d 411, 416 (1981).

Both the PKPA and the UCCJEA “ ‘provide [] substantially the same jurisdictional prerequisites.’ ” Potter v. Potter, 131 N.C. App. 1, 4, 505 S.E.2d 147, 149 (1998) (alteration in original) (quoting Beck v. Beck, 123 N.C. App. 629, 632, 473 S.E.2d 789, 790 (1996)). Significantly, “both permit the state wherein a custody claim is filed to assume jurisdiction if that state is the home state of the affected child.” Id.; see N.C. Gen. Stat. § 50A-201(a)(l) (2009) (allowing a North Carolina court to exercise jurisdiction over an initial child custody determination when “[t]his State is the home state of the child on the date of the commencement of the proceeding”); 28 U.S.C. § 1738A(c)(2) (allowing a state to exercise jurisdiction over a child custody visitation determination when “such State ... is the home state of the child on the date of the commencement of the proceeding”). Under both statutes, a child’s “home state” is the state in which a child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding. N.C. Gen. Stat. § 50A-102(7) (2009); 28 U.S.C. § 1738A(b)(4). Notably, priority is given to the state with home state jurisdiction. See Chick v. Chick, 164 N.C. App. 444, 448, 596 S.E.2d 303, 307 (2004); N.C. Gen. Stat. § 50A-206 (Official Comment) (2009) (“The problem of simultaneous proceedings is no longer a significant issue. Most of the problems have been resolved by the prioritization of home state jurisdiction under Section 201[.]”).

In the present case, Judge Hilbum found as a fact that “[t]he child who is the subject of the New Jersey action and this North Carolina action resided in New Jersey, and specifically for six months immediately preceding the commencement of the New Jersey actions.” This finding of fact is supported by competent evidence in the record, including plaintiff’s own complaint for child custody and his sworn affidavits as to the status of the minor child. The record shows defendant relocated to New Jersey in August 2007 with the minor child, where the two resided until August 2010. While plaintiff correctly contends that the jurisdictional provisions of the UCCJEA do not apply to adoption proceedings, plaintiff filed a child custody action in the Superior Court of New Jersey on 8 December 2009. Thus, at the time the child custody proceeding was instituted by plaintiff in New Jersey, New Jersey was the child’s home state for jurisdiction purposes under both the UCCJEA and the PEPA, and therefore, Judge Hilburn properly concluded that North Carolina cannot exercise jurisdiction over the matter.

Nonetheless, plaintiff argues Judge Hilburn should have complied with the mandatory provisions of N.C. Gen. Stat. § 50A-110 before ruling on the jurisdiction issue. Under this statute, when determining the existence of subject matter jurisdiction in a child custody proceeding, a court in North Carolina “may communicate with a court in another state.” N.C. Gen. Stat. § 50A-110(a) (2009) (emphasis added). When such discretionary communication occurs between the two courts pursuant to this statute, “[t]he court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.” Id. § 50A-110(b). Furthermore, a record must be made of the communication, unless the communication concerns schedules, calendars, court records, or similar matters. Id. § 50A-110(d).

In addition to such discretionary communication under section 50A-110, a North Carolina court is sometimes statutorily required to communicate with a foreign court concerning child custody proceedings. Relevant to this case is section 50A-206 of the UCCJEA, which provides, “If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Article, the court of this State shall stay its proceeding and communicate with the court of the other state." N.C. Gen. Stat. § 50A-206(b) (emphasis added). “If 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. (emphasis added).

Here, upon filing his motion to dismiss the pending New Jersey action on 9 November 2010, plaintiff presented extensive forum non conveniens arguments to Judge Foti. On 15 November 2010, Judge Foti denied plaintiff’s motion to dismiss, stating in her order that she would contact the presiding judge in North Carolina “as to the jurisdiction issues.” That same day, plaintiff filed the present action in North Carolina, including his same forum non conveniens arguments. At the request of counsel for both plaintiff and defendant, Judge Foti informed Judge Hilbum, by way of letter dated 23 November 2010, that she had determined New Jersey was the proper state to exercise jurisdiction in the child custody matters, citing New Jersey’s UCCJEA statutory provisions. Accordingly, upon making the factual determination that New Jersey was properly exercising home state jurisdiction at the time the New Jersey actions were commenced, Judge Hilbum’s obligation to communicate with the New Jersey court under the mandatory provisions of N.C. Gen. Stat. § 50A-206(b) had already been fulfilled, as Judge Foti had already informed Judge Hilbum of her decision that North Carolina was not the more convenient forum. Accordingly, pursuant to N.C. Gen. Stat. § 50A-206(b), Judge Hilburn was required to dismiss plaintiff’s action. Judge Hilburn’s 21 February 2011 order details these events in the findings of fact, and thereafter properly concludes that North Carolina cannot exercise jurisdiction in this matter.

We emphasize that because the communication between the North Carolina and New Jersey courts at issue in the present case concerned simultaneous child custody proceedings, the provisions of N.C. Gen. Stat. § 50A-206 control. Because the record reveals no discretionary communication between the two courts actually occurred, the provisions of N.C. Gen. Stat. § 50A-110 are not implicated. Plaintiff argues that because Judge Hilburn’s 21 February 2011 order indicates that the decision to decline jurisdiction in North Carolina was made “[a]fter reviewing the file, hearing arguments of counsel and reviewing correspondence from and having telephone conferences with the Honorable Margaret M. Foti, Superior Court of New Jersey,” the record necessarily implies that Judge Hilbum held discretionary ex parte communications with Judge Foti without complying with section 50A-110. (Emphasis added.) However, even if Judge Hilburn did, in fact, have telephone conferences with Judge Foti regarding the jurisdiction issue, we fail to see how any such communication affected the outcome in the present case, as Judge Hilburn’s findings of fact both disclose and rely on the same facts that are presented in plaintiff’s present child custody complaint, Judge Foti’s order denying plaintiff’s motion to dismiss, and Judge Foti’s letter to Judge Hilbum, which was fully produced to the parties. Further, although plaintiff argues he was given no opportunity to present facts and arguments regarding the jurisdiction issue to Judge Hilbum, plaintiff submitted to Judge Hilbum a copy of his extensive forum non conveniens arguments as an exhibit to his present action for child custody.

Thus, the statutory prerequisites for determining child custody jurisdiction were substantially complied with in the present case. In the 21 February 2011 order, Judge Hilburn made the requisite findings of fact and conclusions of law that New Jersey had proper home state jurisdiction at the time the New Jersey child custody action was commenced, that the New Jersey court had communicated with the North Carolina court regarding the jurisdictional issue, that New Jersey declined to find this State the more appropriate forum for the parties’ custody dispute, and that North Carolina must therefore dismiss the action under the UCCJEA and the PKPA. Given these circumstances, and our de novo conclusion that North Carolina may not exercise jurisdiction over plaintiff’s child custody matter, the trial court’s order declining to exercise jurisdiction in the present case must be affirmed.

Affirmed.

Judge STEELMAN concurs. Judge McGEE dissents with separate opinion.