Latch v. Latch

305 S.E.2d 564 (1983)

Ada Jean LATCH v. George Dale LATCH.

No. 8212DC768.

Court of Appeals of North Carolina.

August 2, 1983.

*565 No counsel for plaintiff-appellee.

Reid, Lewis & Deese by Renny W. Deese, Fayetteville, for defendant-appellant.

PHILLIPS, Judge.

Denial of a motion to dismiss for lack of subject matter jurisdiction is an interlocutory order, not affecting a substantial right, and therefore not immediately appealable. Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982). However, in order to facilitate an early resolution of the custody issue, which the child's welfare requires, we will treat defendant's appeal as a writ of certiorari pursuant to Rule 21(a), N.C.Rules App.Proc.

*566 Defendant contends the North Carolina trial court never had subject matter jurisdiction. The Uniform Child Custody Jurisdiction Act lists four alternative grounds for subject matter jurisdiction. G.S. 50A-3. Plaintiff's claim falls under two of these grounds for jurisdiction.

G.S. 50A-3(a)(2) authorizes North Carolina court jurisdiction of a child custody matter if:

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....

Plaintiff has lived most of her life in North Carolina and therefore has a significant connection with this state. Although the child spent the first twenty-two months of her life in Pennsylvania, she has resided in North Carolina approximately one-half of the two years that elapsed between her parents' separation and her abduction. The child's mother, who was granted custody under the separation agreement, resides in North Carolina. The child would still be in North Carolina if she had not been abducted. Under these circumstances, the child has a "significant connection" with this state.

The facts that the child had settled into North Carolina residence and that her mother lives in this state support the statutory requirement that there is available in North Carolina "substantial evidence relevant to the child's present or future care, protection, training, and personal relationships...." The trial court properly concluded it had jurisdiction under G.S. 50A-3(a)(2).

Jurisdiction is also authorized under G.S. 50A-3(a)(4) if:

(i) It appears that ... another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

In a letter to defendant, the Pennsylvania court stated it was relinquishing jurisdiction to the North Carolina court. This was done to avoid a jurisdictional conflict that would have created difficulties for the child, the parties and the courts, and because the Pennsylvania court was of the opinion that this state is the more appropriate forum under the circumstances. We agree.

The orders appealed from are therefore

Affirmed.

WELLS, J., concurs.

HEDRICK, J., concurs in result.

HEDRICK, Judge, concurring in result.

I concur in the result reached by the majority; however, I believe the appeal should be dismissed since it is from an interlocutory order not affecting a substantial right. To "treat defendant's appeal as a writ of certiorari pursuant to Rule 21(a)" frustrates the expeditious administration of justice in this case, and encourages appeals from interlocutory orders which causes unnecessary and unreasonable delay and expense.