Kelly v. Kelly

335 S.E.2d 780 (1985)

Victoria Ann Kuhlman KELLY (now Davis) v. Randell Lee KELLY.

No. 8521DC435.

Court of Appeals of North Carolina.

November 5, 1985.

*782 House, Blanco & Osborn, P.A. by Reginald F. Combs and Gene B. Tarr, for plaintiff, appellant.

Liner & Bynum by David V. Liner, for defendant, appellee.

HEDRICK, Chief Judge.

Appellant, Mrs. Kelly, admits that the trial court had jurisdiction in this case pursuant to G.S. 50A-3(a), but she contends that the trial court erred by failing to decline jurisdiction pursuant to G.S. 50A-7(a).

G.S. 50A-7 in pertinent part 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. . . . . . . (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 that the best interest of the child supported North Carolina jurisdiction, the court had before it evidence that Elizabeth lived most of her life in North Carolina, she only recently left North Carolina, both parents spent time caring for Elizabeth in North Carolina, both sets of grandparents reside in North Carolina, and the character of both parents is known in North Carolina. The only other state which might logically take jurisdiction over this matter is Wisconsin. Only the fact that Elizabeth and her mother resided in Wisconsin for the nine months immediately preceding the custody modification order at *783 issue supports deferring jurisdiction to Wisconsin.

Deferring jurisdiction on inconvenient forum grounds rests in the sound discretion of the trial judge. Without a showing that the best interest of the child would be served if another state assumed jurisdiction, North Carolina courts should not defer jurisdiction pursuant to G.S. 50A-7. We hold that the trial court did not err in exercising jurisdiction.

Mrs. Kelly also contends that the trial court made no findings of fact which support the court's conclusion that there has been a substantial and material change of circumstances as regards Elizabeth's welfare. It is well established that a modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change in circumstances affecting the welfare of the child, and the party moving for such a modification has the burden of showing such change of circumstances. See, e.g., Tucker v. Tucker, 288 N.C. 81, 216 S.E.2d 1 (1975).

The trial court found the following changes in circumstances occuring between the date of the original custody order and the date of the order at issue: 1) Mrs. Kelly had a child out of wedlock; 2) She and both her children moved to Wisconsin; 3) She married the father of her illegitimate child; and 4) Mr. Kelly remarried.

Remarriage without a finding of fact indicating the effect of remarriage on a child is not a sufficient change of circumstance to justify modification of a child custody order. Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123, disc. rev. denied, 298 N.C. 568, 261 S.E.2d 122 (1979). Without a showing that the move to an unfamiliar place proved disruptive or detrimental to Elizabeth's welfare, the change of residence also fails to constitute a substantial change of circumstances. Gordon v. Gordon, 46 N.C.App. 495, 265 S.E.2d 425 (1980).

The difficult question we face is whether the birth of a child out of wedlock constitutes a substantial change of circumstances affecting the welfare of the child when this birth is seen in the light of the facts of this case. In Dean v. Dean, 32 N.C.App. 482, 232 S.E.2d 470 (1977), we stated that the birth of two illegitimate children constituted sufficient change in circumstances to support an order switching child custody. Contrary to the facts in this case, the trial court in Dean found the custodial parent unfit. The custodial parent in Dean did not legitimate her illegitimate children by marrying their father. We believe that the present case is distinguishable from Dean. In the present case the trial court found that both parents are devoted to the child and are fit and proper persons to have primary custody. Mr. Kelly himself admitted that Mrs. Kelly "has done a pretty good job bringing [Elizabeth Gail Kelly] up the past few years." Mrs. Kelly has legitimated her new baby by marrying the baby's father.

Under the facts of this case as presented in the record, we hold that the trial court found insufficient changes in circumstances to justify a change in custody. The order of the trial court is therefore vacated.

WHICHARD and JOHNSON, JJ., concur.