Opinion
No. COA09-224.
Filed February 16, 2010.
New Hanover County No. 08CVD5151.
Appeal by Plaintiff from order entered 15 December 2008 by Judge Melinda H. Crouch in District Court, New Hanover County. Heard in the Court of Appeals 15 September 2009.
Rice Law, PLLC, by Mark Spencer Williams, for Plaintiff-Appellant. Angela M. Bullard, for Defendant-Appellee.
When discretionary communication takes place between a court of North Carolina and a court of a foreign state concerning an initial determination of jurisdiction in a child custody case, a record of the communication must be made and the parties afforded the opportunity to examine the record. See N.C. Gen. Stat. § 50A-110(d) (2009). Plaintiff Anthony J. Harris appeals an order issued by the District Court in New Hanover County which dismissed an action for child custody based on an ex parte communication with a court in Indiana of which no record was provided to the parties. Plaintiff argues that the communication between the courts was discretionary, rather than required, and that as such (1) a record thereof must be made and (2) the parties must be afforded the opportunity to review the record and present further arguments prior to a jurisdictional determination. We agree and reverse the trial court's order and remand for further proceedings consistent with this opinion.
I.
In April 1996 a child, A.L.H., was born to the marriage of Anthony J. Harris ("Plaintiff") and Teasha J. Harris ("Defendant"). On 12 September 2008 Defendant filed an action in Marion County, Indiana seeking a dissolution of their marriage and, inter alia, an order granting her primary custody of A.L.H. On 1 December 2008, Plaintiff filed an action for custody of A.L.H. in New Hanover County, North Carolina. The North Carolina court scheduled a hearing to address proper jurisdiction for 6 January 2009.
On 8 December 2008, the North Carolina court conferred with the Indiana court where Defendant's custody action was pending. The parties were neither notified of nor able to participate in the communication and no record was made thereof. Prior to the previously scheduled jurisdictional hearing, the North Carolina court, by its own motion, executed an order on 10 December 2008 stating that "after communicating with the Court in the State of Indiana" it was dismissing Plaintiff's custody action for lack of subject-matter jurisdiction. In response to this order of dismissal, Plaintiff filed a Notice of Exception with the court on 18 December 2008 and a Notice of Appeal on 6 January 2009.
II.
On appeal, Plaintiff contends that the North Carolina court erred by dismissing the action for lack of subject-matter jurisdiction on the basis of an ex parte communication with the Indiana court without providing the parties a record of the communication.
In reviewing a question of subject-matter jurisdiction, our standard of review is de novo. Raleigh Rescue Mission, Inc. v. Board of Adjust. of City of Raleigh, 153 N.C. App. 737, 740, 571 S.E.2d 588, 590 (2002). Subject-matter jurisdiction "is conferred upon the courts by either the North Carolina Constitution or by statute." In re M.B., 179 N.C. App. 572, 574, 635 S.E.2d 8, 10 (2006) (internal quotation marks and citations omitted). "North Carolina's jurisdiction over child custody matters is governed by both the federal Parental Kidnapping Prevention Act ("PKPA") and the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") as enacted in North Carolina." Williams v. Walker, 185 N.C. App. 393, 399, 648 S.E.2d 536, 540-41 (2007); see also In re Brode, 151 N.C. App. 690, 694, 566 S.E.2d 858, 861 (2002) (establishing that whenever the UCCJEA conflicts with the PKPA the latter, as a federal statute, controls).
The State of Indiana has also adopted the UCCJEA. See Ind. Code § 31-21 et seq (2008).
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). 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.A. § 1738A(g) (2006). Thus, when there is an action already pending in another state, the trial court in North Carolina must answer the threshold question of whether the foreign court was 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).
Under the UCCJEA, 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). When engaging in discretionary communication with foreign courts, other than conversations concerning schedules, calendars, court records, and similar matters, a record must be made of the communication. N.C. Gen. Stat. § 50A-110(d)(2009). In addition to discretionary communication, a North Carolina court is sometimes statutorily required to communicate with a foreign court concerning child custody proceedings. N.C. Gen. Stat. § 50A-110 (Official Comment) (2009) ("Communication between courts is required under Sections 204, 206, and 306 and strongly suggested in applying Section 207.") Relevant to this case is the statute stating in part:
Here, record means "information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form." N.C. Gen. Stat. 50A-110(e)(2009).
If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [the UCCJEA], the court of this State shall stay its proceeding and communicate with the court of the other state. 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.
N.C. Gen. Stat. § 50A-206(b) (2009).
Notably, communication is only required under G.S. § 50A-206(b) after the North Carolina court has made a determination of substantial compliance with the UCCJEA. Id. Thus, either (1) the North Carolina court was communicating with the Indiana court after making a determination that the Indiana court had proper subject-matter jurisdiction via substantial compliance with the UCCJEA, or (2) the communication was discretionary, in which case a record of the communication was plainly statutorily required.
Bolstering this reading is the subsequent language under which dismissal is required upon the determination of the foreign court that the North Carolina court is not "a more appropriate forum." N.C. Gen. Stat. § 50A-206(b) (2009). A court in North Carolina can exercise jurisdiction over an initial child custody determination despite a superior claim to jurisdiction by a foreign court only if the foreign court declines to exercise jurisdiction on the ground that North Carolina is the "more appropriate forum" under the UCCJEA. N.C. Gen. Stat. § 50A-201(a)(3) (2009); see also N.C. Gen. Stat. § 501A-201(b) (2009) ("Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this State.").
In this case, nothing in the record on appeal indicates that the North Carolina court made a determination of substantial compliance with the jurisdictional requirements of the UCCJEA. Indeed, there is no indication that the trial court considered anything other than its ex parte conversation prior to issuing the order. The order states simply that "after communicating with the Court in the State of Indiana, where there is presently pending a custody action involving the same parties to this action," the court determined that "[t]he State of North Carolina is not the proper State to hear the matter involving custody of the minor child. . . ." The court offered no further explanation, findings of fact, or reference to findings made by the Indiana court. It would undermine the express purpose of the UCCJEA, which seeks to ensure that "a custody decree is rendered in that State which can best decide the case in the interest of the child," if the court in this matter were permitted to decline jurisdiction without any explanation of its actions. See N.C. Gen. Stat. § 50A-101 (Official Comment) (2009). We recognize that specific findings of fact are no longer required when a court assumes jurisdiction over a child custody matter, provided that the evidence in the record supports the court's conclusions of law regarding jurisdiction. See In re T.J.D.W., J.J.W., 182 N.C. App. 394, 397-98, 642 S.E.2d 471, 473-74 (2007). However, in this case the court both "declines to assume jurisdiction" and dismisses for lack of subject-matter jurisdiction. Without factual findings, it cannot be determined whether our court a) yielded to the court of Indiana after finding the foreign state had jurisdiction or b) had jurisdiction but waived it on the grounds that Indiana was a more appropriate forum.
Cf. Chick v. Chick, 164 N.C. App. 444, 455, 596 S.E.2d 303, 311 (2004) (finding that despite ex parte communications, a North Carolina court's decision to decline jurisdiction was proper in part because it based its order "not necessarily . . . on any conversation with the Vermont judge, but on a review of the Vermont order and findings of fact contained therein.") (internal quotations omitted).
Since there is no indication that the trial court made the factual determination necessary to trigger required communication, we view the communication between the courts as discretionary. As such, G.S. 50A-110(c) (2009) controls. Consequently, a record of the communication was required to be made and provided to the parties so that they may be "given an opportunity to fairly and fully present facts and arguments on the jurisdictional issue before a determination is made." N.C. Gen. Stat. § 50A-110 (Official Comment) (2009). We find this a particularly appropriate remedy given that it is unclear from the language of the order whether the trial court considered any evidence other than its ex parte communication prior to making its jurisdictional determination.
Accordingly, we reverse the order of dismissal and remand to the trial court with instructions that a record of the communication be provided to the parties and that a hearing be held in which the parties might present facts and arguments on the issue of subject-matter jurisdiction.
If the North Carolina court did not make a record of the communication, case law dictates that a record thereof made by the State of Indiana will satisfy this requirement. See Chick v. Chick, 164 N.C. App. 444, 454-55, 596 S.E.2d 303, 311 (2004) ("[I]t is sufficient if either court makes a record and that record is made available.").
Reversed and Remanded.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).