Williams v. Richardson

281 S.E.2d 777 (1981)

Doris WILLIAMS v. Ronald RICHARDSON.

No. 816DC50.

Court of Appeals of North Carolina.

September 15, 1981.

*779 William W. Aycock Jr., Tarboro, for plaintiff-appellee.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith, Greensboro, for defendant-appellant.

HILL, Judge.

Appellant brings forth eight assignments of error which can be grouped into three categories.

I Was it proper for the North Carolina trial court to exercise jurisdiction in this case?

Mr. Richardson contends that it was not proper for the North Carolina court to exercise jurisdiction. In support of this position, he argues that the district court could not take jurisdiction because the Virginia court retained jurisdiction of the dispute.

Virginia has adopted the Uniform Child Custody Jurisdiction Act, and it is clear that the Virginia court had jurisdiction to modify its original custody order. See Va.Code § 20-126 (Cum.Supp.1981). At the time Richardson filed his action, Virginia was the home state of the children and Mrs. Williams was living in the State of Virginia. The Virginia order granting custody of the children to Richardson, unless punitive, was binding on the parties and the courts of this State so long as it was not properly modified. See G.S. 50A-12, -13; 9 Uniform Laws Annotated 152 (1979).

The question thus becomes whether it was proper for the North Carolina court to modify the Virginia order.

If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance *780 with this Chapter ... and (2) the court of this State has jurisdiction.

G. S. 50A-14.

Although the Virginia court had jurisdiction to modify its original custody order, its jurisdiction ended at the time of the modification. None of the requirements of § 20-126 of the Virginia Code could be met after that time. Still, it would not have been proper for the North Carolina court to modify the Virginia order unless it had jurisdiction under G. S. 50A-3.

A court of this State, authorized to decide child custody matters, has jurisdiction to make a child custody determination by... modification decree if: It is in the best interest of the child that a court of this State assume jurisdiction because... (i) 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.

G. S. 50A-3(a)(2).

Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody. G. S. 50A-3(c).

The district court concluded as a matter of law in its order of 13 March 1980 that the children have a significant connection with this State and there is available in this State substantial evidence relevant to the children's care, protection, training, and personal relationships. The conclusion is supported by the facts as found. The district court found that on 6 August 1979, Mrs. Williams and the children moved to North Carolina in order to be near Mrs. Williams' new husband's job. The move was unrelated to the custody proceeding pending in Virginia. The court further found that the Department of Social Services in Northampton County had investigated the parties and the children. We find that the North Carolina court could properly exercise jurisdiction to modify the Virginia order.

In his second argument relating to jurisdiction, Richardson argues that the North Carolina court erred in exercising jurisdiction, because, at the time the case was filed, an identical action was pending in Virginia.

G. S. 50A-6(a) requires that North Carolina decline jurisdiction of a custody action if a similar action is pending in another state. Judgment was entered by the Virginia court on 7 February 1980. The action before this Court began on 25 February 1980. Virginia permits a losing party 30 days to file a motion for a new trial; that is, until 9 March 1980 in this case. However, the right to appeal alone is insufficient to continue jurisdiction when the party demonstrates abandonment of such right. By filing her action in North Carolina, Mrs. Williams demonstrated that she had no interest in appealing the Virginia judgment. Richardson's second argument is without merit.

In his third argument relating to jurisdiction, Richardson contends the North Carolina court was required by G. S. 50A-8(b) to decline jurisdiction.

The statute provides that:

Unless required in the best interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody .... (Emphasis added.)

Certainly, this Court does not condone Mrs. Williams' abduction of her child. In the vast majority of cases, such action will result in the refusal by the courts of this State to exercise jurisdiction to modify a custody decree. Nevertheless, the district court concluded as a matter of law that, despite the abduction, it should not decline to exercise jurisdiction. The court reasoned that "the interests of the children require a full, complete and impartial hearing on the question of custody ... and the action of [Mrs. Williams] was represented to be on advice of counsel."

Whether Mrs. Williams abducted her child from Georgia upon the advice of counsel is irrelevant. The only proper inquiry for the district court was whether it was required, in the best interest of the children, *781 to exercise its jurisdiction at a time when it ordinarily would be mandated not to do so. We find that, although the record could support a conclusion that it was in the best interest of the children that the State exercise jurisdiction to modify the custody order, there are no findings of fact which would support such a conclusion. The case must be remanded for such findings.

In his fourth argument relating to jurisdiction, Mr. Richardson argues that the present case is in effect an appeal of the decision rendered in the Virginia court. Mr. Richardson bases his argument on the fact that of the twenty findings of fact made by the North Carolina court only three represent events occurring after the Virginia order granting Richardson custody was issued.

The repetitiveness of the findings is irrelevant. The important inquiries are, first, whether North Carolina had jurisdiction to modify the Virginia order. That question must be answered on remand. The second important inquiry is whether the North Carolina court made a finding of a substantial change of circumstances that would support a modification. That inquiry is addressed infra.

In his fifth argument relating to jurisdiction, Richardson argues the district court erred by accepting jurisdiction of the action because there was no existing cause of action in North Carolina between the parties.

The initial pleading filed by Mrs. Williams was entitled "Motion." Nevertheless, the substance of the pleading is that of a complaint and was treated as such by both parties. The responsive pleading filed was an answer. The court referred to the original pleading as a complaint. It was assigned a file number. The action throughout was treated by both parties as a complaint and a new action. The substance controls over the form. This assignment of error is without merit.

Appellant contends in his sixth argument relating to jurisdiction that the district court was divested of jurisdiction to enter a final order in this cause when both parties had filed notice of appeal in prior actions. The trial court had previously dismissed a habeas corpus proceeding brought by Mrs. Williams, and she had appealed. Mr. Richardson had moved to dismiss the present action before the court for lack of jurisdiction. The motion was denied, and Mr. Richardson gave notice of appeal. Neither appeal was perfected.

Ordinarily, an appeal lies immediately from refusal to dismiss a cause for want of jurisdiction. Kilby v. Dowdle, 4 N.C.App. 450, 166 S.E.2d 875 (1969). However, such an appeal may be abandoned by action of the parties. Appellant abandoned his right to an immediate appeal and considered the order to be interlocutory in nature and involving matters which could be presented after the case was heard on its merits, as evidenced by the following:

(1) After the court ordered evidentiary hearings the appellant requested a continuance in order to have a Virginia social service report available. (2) Later, appellant consented that the hearing on the merits be transferred from Northampton County to Halifax County. (3) Then the appellant moved that the matter be referred back to the Virginia court for it to take further evidence and make findings with respect to whether Virginia or the North Carolina courts should decide the question of which parent should have custody. The appellant's appeal from the 13 March 1980 order was for failure of the court to grant an absolute dismissal of the proceedings in North Carolina. (4) The appellant appeared at the evidentiary hearings held on 8 July 1980 and 19 August 1980, cross-examined witnesses, presented evidence and arguments to the court and in every respect fully participated in the trial on the merits. He did not at either hearing contend the court was without jurisdiction to hear the case on the merits because of the earlier notice of appeal. (5) Finally, the appellant consented to an order which stated that in addition to the 19 August 1980 order "all prior interim *782 orders entered herein, defendant has given due and timely notice of appeal to the North Carolina Court of Appeals." Thus, the appellant acknowledged that the 13 March 1980 order was an interim or interlocutory order.

This assignment of error is without merit and overruled.

In summation, we hold that the North Carolina court could properly exercise jurisdiction to modify the Virginia decree despite Mrs. Williams' abduction of her daughter if it was in the best interest of the children that this State exercise its jurisdiction. The case must be remanded for such findings.

II Should the district court's modification of the prior Virginia custody decree be reversed because there is no finding of a substantial change of circumstances?

A court of this State may modify a previous custody order only upon a showing of changed circumstances affecting the welfare of the child. G. S. 50-13.7; Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978). Mr. Richardson correctly points out that none of the district court's findings addressed the issue of changed circumstances.

A possible reason for this failure can be found in finding of fact # 11 of the district court's order assuming jurisdiction of the action. In the finding, which is incorporated into the final order, the district court states that the Virginia court "found in its Order that there had been a substantial change in the circumstances of the parties and that a change in custody would be in the best interests of the parties; however, the Court failed to find any facts to support these conclusions." Given that finding, we can only conclude that the district court did not feel a need to detail a change of circumstances when the order revoking Mrs. Williams' custody did not show a change of circumstances. While such an analysis by the district court would be logical, it would also be erroneous.

The courts of this State shall recognize and enforce a modification decree of a court of another state. See G. S. 50A-13. "Recognition and enforcement is mandatory if the state in which the prior decree was rendered 1) has adopted [the Child Custody Jurisdiction] Act." (Emphasis added.) 9 Uniform Laws Annotated 151 (1979). Only by making recognition and enforcement mandatory can the purposes of the Act detailed in G. S. 50A-1(a) be realized.

Nevertheless, the mandate of G. S. 50A-13 will cause problems if the prior decree (here the Virginia modification) is a disciplinary or punitive measure. Id. at p. 152. "Although the Uniform Act requires recognition and enforcement of out-of-state custody decisions in general, punitive decrees do not command the respect that is due other out-of-state custody decrees and should not be recognized under the Act." Bodenheimer, Child Custody Problems, 65 Calif.L.Rev. 978, 1003-4 (1977). It could be implied from the district court's findings that it believed the Virginia modification order to be punitive and unworthy of recognition. However, upon our examination of the Virginia modification order, we find it equally possible that the Virginia court's finding that Mrs. Williams failed to appear and bring the children to court as ordered supports that court's conclusion that there had been a substantial change in circumstances, thus destroying any contention that the order is punitive.

The case must be remanded to the district court for findings in this area. Assuming that the trial court decides to exercise jurisdiction, in order to modify the Virginia decree, the court must find the decree to be punitive or detail a substantial change in circumstances.

III Did the district court commit reversible error by not allowing the parties' daughter to testify to her preference regarding custody?

At the close of hearing, Mr. Richardson's counsel offered Tammy to be privately questioned by the trial judge in his chambers. Mrs. Williams' counsel objected. A trial judge may not question a child privately in a custody proceeding except by *783 consent of the parties. Smith v. Rhodes, 16 N.C.App. 618, 192 S.E.2d 607 (1972). The assignment of error is overruled.

The case must be remanded to the trial court for findings of fact consistent with this opinion. If it is found that it is not in the best interest of the children that the State exercise its jurisdiction, the Virginia order will stand. If it is found to be in the best interest of the children that this State exercise jurisdiction, the Virginia order will continue to be effective unless it is found to be punitive, or the trial court finds a substantial change of circumstances since the Virginia order was issued.

Remanded.

ROBERT M. MARTIN and CLARK, JJ., concur.