Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
plaintiff-appellant.
Oliver & Delaney, P.A., by Sean Delaney and James A. Oliver,
for defendant-appellee.
CALABRIA, Judge.
Melinda B. Chick (“mother”) appeals orders entered in Wake
County District Court directing law enforcement officials to assist
Randy Chick (“father”) in obtaining custody of their minor children
and declining jurisdiction over the matter of custody of the minor
children on the grounds that the State of Vermont had continuing
and exclusive jurisdiction over this matter. We affirm in part and
vacate in part.
On 3 September 1999, mother and father (the “parties”) were
married in North Carolina and are currently the natural parents of
two minor children. Due to financial hardship, mother and the
minor children moved to Vermont in August of 2001 to live with
father's family. Father, who was serving in the United States
Marine Corps and stationed at Camp Lejeune, remained in North
Carolina. In late November of 2001, father went to Vermont onleave to visit with mother and the minor children. The parties
returned to North Carolina to obtain free marital counseling at
Camp Lejeune. The minor children remained in Vermont until the
first week in January when the parties decided to bring the minor
children back to North Carolina. Six weeks later, in February of
2002, mother and the minor children returned to Vermont and resumed
living with the minor children's paternal grandparents. On 26
February 2002, they were joined by father who went on terminal
leave from military service.
Mother was unhappy living in Vermont and wished to return
with the minor children to North Carolina where her family was
located. On 1 July 2002, mother picked up the minor children from
father's place of work and informed him that she may take the minor
children to McDonald's before going home. Mother then returned to
the parties' residence, packed her and the minor children's
belongings and left Vermont with the minor children. In a note to
father, she stated the following:
I am sorry it had to come to this, but I knew
you would never willingly let the kids go with
me. I am not trying to keep them from you.
We will work out some kind of arrangement. I
will call you when I get to NC. No one knows
I was doing this, so my work will probably
call here. Again I am very sorry. I just
hope you understand.
The following day, mother filed for custody of the minor children
in Wake County District Court (the “North Carolina court”). That
same day, father filed for divorce and sought custody of the minor
children in the Family Court of Vermont in Windsor County (the
“Vermont court”). The Vermont court declined to issue a custody order on 2 July
2002 after noting the possible jurisdictional conflict between
Vermont and North Carolina. However, the following day, father
requested reconsideration of the court's ruling, and the Vermont
court, after noting it had reserved ruling on father's motion
pending receipt of further information, issued an order granting
father's “request for temporary sole physical and legal rights and
responsibilities of the parties' two minor children.” In addition,
the Vermont court expressly asserted jurisdiction over the
children. On 30 July 2002, father filed a motion to enforce the
temporary custody order entered by the Vermont court on 3 July
2002. The Vermont court calendared a hearing for father's motion
on 18 September 2002.
On 13 August 2002, mother filed a motion in Wake County asking
the North Carolina court to determine the existence and priority of
jurisdiction. In addition, mother moved to dismiss father's
complaint in Vermont on the grounds that no summons was delivered
when she was served on 24 July 2002, and mother argued Vermont
should defer to the pending proceeding in North Carolina. On 16
September 2002, the North Carolina court issued an ex parte order
prohibiting the removal of the minor children from Wake County
until 7 October 2002, the date for the hearing on mother's motion
to determine jurisdiction.
On 18 September 2002, the Vermont court heard arguments on
father's motion for custody. The Vermont court awarded temporary
custody to father in a written order filed 24 September 2002. On
8 October 2002, after the North Carolina court refused to extendthe ex parte order prohibiting the removal of the minor children
from North Carolina, the Vermont court entered an order to enforce
custody and directed law enforcement officials to assist in the
return of the minor children. On 9 and 10 October 2002, the North
Carolina court heard arguments on mother's motion to determine the
priority and existence of jurisdiction and, the following day,
issued an order directing local law enforcement officials to assist
father in obtaining custody of the minor children from mother. In
a separate order, the North Carolina court also declined
jurisdiction and deferred to orders entered by the Vermont court.
Mother appeals, asserting the North Carolina court erred in
(I) declining jurisdiction over the custody dispute; (II)
concluding mother received proper notice of the Vermont court's 18
September 2002 hearing concerning custody and jurisdiction; (III)
failing to make a proper record of communications with the Vermont
court concerning the jurisdictional dispute; and (IV) ordering the
use of law enforcement officials to return the children to Vermont.
I. Jurisdiction
Mother asserts the North Carolina court erred in declining
jurisdiction over the custody matter because (1) the minor children
had not met the home state requirement and (2) father admitted
Vermont did not meet that requirement. Mother contends North
Carolina, which had significant connections with the minor
children, is the state which should have jurisdiction.
Nonetheless, mother candidly concedes that “the Vermont court could
. . . issue its [18 September custody] order . . . if Vermont had
home state jurisdiction under the UCCJA, since such jurisdictiontrumps all other types of jurisdiction[.]” We hold both courts
correctly concluded Vermont was the home state of the children;
therefore, the North Carolina court properly declined jurisdiction
over the matter of custody of the minor children.
Vermont, which has not adopted the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”), has adopted the
Uniform Child Custody Jurisdiction Act (“UCCJA”). See 15 V.S.A. §§
1031-1051 (2004). Under both North Carolina's UCCJEA and Vermont
law, jurisdictional primacy is given to the home state of a minor
child. See N.C. Gen. Stat. § 50A-201 (2003); Shute v. Shute, 158
Vt. 242, 607 A.2d 890 (1992). The home state is “the state in
which a child lived with a parent or a person acting as a parent
for at least six consecutive months immediately before the
commencement[
(See footnote 1)
] of a child-custody proceeding.” N.C. Gen. Stat. §
50A-102(7) (2003).
(See footnote 2)
“A period of temporary absence of any of the
mentioned persons is part of the period.” Id. Where the child's
home state is a state other than North Carolina, North Carolina may
make child-custody determinations only under limited circumstances.
N.C. Gen. Stat. § 50A-201.
Initially,
we note there is no question that the minor
children were not living in North Carolina for the required six
months prior to the commencement of mother's custody
proceedings;therefore, North Carolina is not the home state. It is
likewise
uncontested that, save for the six-week period in January and
February of 2002, the minor children lived continuously in Vermont
from August 2001 to July 2002. Accordingly, either Vermont is the
children's home state or there is no home state. Where there is no
home state, a court may look to which state has the most
significant connections to the child. See N.C. Gen. Stat. § 50A-
201(a)(2) (2003). Whether Vermont qualifies as the home state of
the children turns on whether the minor children's six-week absence
constituted a “temporary absence.”
(See footnote 3)
As previously noted, temporary absences are
considered part of
the six-month period immediately preceding the commencement of a
child-custody proceeding for purposes of determining a child's home
state. N.C. Gen. Stat. § 50A-102(7). The North Carolina court
concluded North Carolina was not the home state and Vermont was the
home state of the minor children because the “children resided in
Vermont for 11 months prior to filing of the complaints except for
a period of temporary absence.” Mother asserts the six-week periodof
time in North Carolina by the minor children could not legally
qualify as a temporary absence since the parties' return to North
Carolina was of an indefinite duration. In so doing, mother
contends the parties' intent at the time of the move should
determine whether the absence is a temporary absence for purposes
of home state determinations.
While the issue of whether an absence from a state amounted to
a temporary absence has previously come before this Court, we have
decided this issue on a case-by-case basis. See, e.g., Pheasant v.
McKibben, 100 N.C. App. 379, 384, 396 S.E.2d 333, 336 (1990). Some
courts in sister states have adopted certain tests for determining
whether an absence from a state was a temporary absence. These
tests include (1) looking at the duration of absence, (2) examining
whether the parties intended the absence to be permanent or
temporary, and (3) adopting a totality of the circumstances
approach to determine whether the absence was merely a temporary
absence. See S.M. v. A.S.,
938 S.W.2d 910 (Mo. App. 1997). We
deem the third option to be the most appropriate choice for several
reasons. First, it comports with the approach taken by North
Carolina courts in determining the issue of whether an absence was
temporary on the basis of the facts presented in each case. Second, it
incorporates considerations, such as the parties' intent
and the length of the absence, that courts of sister states have
found important in making this determination. Third, it provides
greater flexibility to the court making the determination by
allowing for consideration of additional circumstances that may
bepresented in the multiplicity of factual settings in which child
custody jurisdictional issues may arise.
We now turn to the North Carolina court's conclusion that the
six-week period of time spent by the children in North Carolina was
a temporary absence from Vermont. The North Carolina court made
detailed findings of fact regarding the series of trips between
Vermont and North Carolina. These findings include the following:
8. In anticipation of relocating to Vermont,
in early August 2001, [mother] moved with the
minor children to Vermont. They resided in
Vermont with [father's] mother and step-father
[[father's] parents].
9. Once in Vermont, [mother] found full-time
employment and the children attended daycare.
When not in daycare, the children were
attended to by [mother] and [father's]
parents.
10. At Thanksgiving of 2001, [father] went to
Vermont on leave to visit with [mother] and
the children. Near the end of his leave,
[father] asked [mother] to return to North
Carolina with him so that they could attend
marriage counseling at no cost on the military
installation.
11. [The parties] returned to North Carolina
in late November 2001. The minor children
remained in Vermont in the care of [father's]
parents.
12. Once the parties returned to North
Carolina, there were changes to their long
term plans. At one point, [father] had
decided to reenlist, and his duty station was
uncertain, but [mother] hoped it would be in
North Carolina. Later, it was decided that
[father] would not reenlist, but the parties
would stay in North Carolina. They
investigated buying a home and securing
employment.
. . .
14. Later in January the parties again began
discussing returning to Vermont. [Mother]
wanted to stay in North Carolina and [father]
wanted to return to Vermont.
15. It was subsequently decided that the
parties would return to Vermont.
These findings of fact are not contested and illustrate the
parties' intentions vacillated in a relatively short span of time
between residing in Vermont, North Carolina, or an unknown state
where father might be stationed if he reenlisted. While mother
urges this Court to decide the issue of whether the six-week period
was a temporary absence solely on the basis of the parties' intent
at the time they retrieved the children, we decline to do so
because that would ignore the fact that their intentions
fluctuated. In light of the numerous relocations and decisions,
the parties' intent at the specific time they retrieved the minor
children, standing alone, should not control the determination of
whether the absence was temporary.
Moreover, adopting mother's argument could produce absurd
results. For example, if the parties retrieved the minor children
with the intent to remain permanently in North Carolina only to
change their minds within a couple of days, mother's test would
vitiate Vermont's status as home state. That would be true even if
the parties had debated the issue and changed their minds regarding
their intentions multiple times, so long as their intent at the
precise time of leaving Vermont was to remain in North Carolina.
A trial court's determination of whether an absence was temporary
should not be solely decided on whimsy or caprice.
In addition, we note the length of absence from Vermont was a
relatively short period of time, especially when compared to the
fact that the minor children had spent almost the entire previous
year in Vermont. While mother states it would “strain logic . . .
to call the children's . . . residence in North Carolina a'temporary absence,'” we note this Court has held ten months
outside of North Carolina over a two-year period constituted a
temporary absence when it was pursuant to a temporary custody order
issued by a Georgia court. Pheasant v. McKibben, 100 N.C. App.
379, 396 S.E.2d 333 (1990). In addition, as the North Carolina
court noted, a finding of temporary absence is bolstered by this
Court's opinion in Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d
504 (1983). In Plemmons, this Court determined North Carolina was
the child's home state when “the minor child resided with the
plaintiffs for an almost continuous 15 month period immediately
preceding the commencement . . . .” Id., 65 N.C. App. at 344, 309
S.E.2d at 506. We further noted “[t]he child's brief visit to
Texas [of three and one-half weeks] during this time period was not
sufficient to prevent such a conclusion.” Id.
(See footnote 4)
We likewise
conclude that the minor children's brief period of absence from
North Carolina of six weeks during the eleven months they lived in
Vermont was not sufficient to prevent the conclusion that Vermont
was the home state. In summary, applying the UCCJEA of this State to these facts,
North Carolina in no way can qualify as the home state of the minor
children. Additionally, under the same definition Vermont did
qualify as the home state of the minor children prior to the
bringing of this action. Vermont also qualifies as the minor
children's home state under its UCCJA. Not only has Vermont not
declined to exercise jurisdiction but to the contrary has firmly
exercised jurisdiction over these children. There can be no doubt
this exercise of jurisdiction is proper under both North Carolina's
UCCJEA provisions and Vermont's UCCJA provisions. Since the
provisions of North Carolina's UCCJEA allow for North Carolina,
under these facts, to assume significant connection jurisdiction
only if there exists no home state and since we have determined
Vermont was, in fact, the home state of the minor children, this
assignment of error is overruled.
II. Notice
Mother asserts, in the alternative, that even if Vermont was
the home state and could conduct the 18 September hearing, “it had
not provided the Mother with proper notice of that hearing.”
Mother argues the only pending motion at the time of 18 September
2002 was father's motion to use law enforcement to enforce the
earlier 3 July 2002 order by the Vermont court. Accordingly,
mother contends no motion was filed or served concerning issues of
jurisdiction over the child-custody determination, and she “had no
indication the Vermont court would be issuing any rulings on
jurisdiction.” Because Vermont failed to adhere to the notice
requirements of its UCCJA provisions, mother asserts, the NorthCarolina court erred when it “found that Vermont had issued its
order in substantial conformity with the UCCJA.” This argument
fails.
Mother conceded the notice of hearing regarding the 18
September 2002 hearing states in all capital letters as follows:
“Both parties must appear. If you fail to appear, it is possible
that the court will issue parental rights and responsibilities
orders based on the evidence presented by the other party/ies.”
Moreover, mother responded to father's motion (for which arguments
were heard on 18 September 2002) and specifically raised the issue
of Vermont's jurisdiction over the custody issues in light of the
North Carolina proceeding she had filed. Mother “respectfully
request[ed] [the Vermont] court to stay any enforcement of
determination as to its jurisdiction and to consult with the
appropriate judge presiding over the October 7, 2002 civil session
of the Wake County District Court with respect to a determination
of jurisdiction in this matter.” In light of these facts, it is
difficult to entertain mother's arguments that she did not receive
notice or was unaware of the pendency of the issue of jurisdiction
before the Vermont court on 18 September 2002 at the time of the
hearing. This assignment of error is overruled.
III. Record of Communication
Mother asserts the North Carolina court erred
by failing to
make a record of the conversation which occurred between the North
Carolina court and the Vermont court as required by N.C. Gen. Stat.
§ 50A-110(d) (2003). Mother contends that this failure deprived
her of the “protections to litigants under [the UCCJA and UCCJEA]that
allow those parties to respond to issues and 'facts' shared
between judges in an effort to fully and fairly inform a tribunal
of a party's respective position in litigation and correct
misassumptions that may be communicated between the courts.”
North Carolina General Statutes § 50A-110 (2003) provides, in
pertinent part, as follows:
(a) A court of this State may communicate with
a court in another state concerning a
proceeding arising under [the UCCJEA].
(b) The 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.
(c) Communication between courts on schedules,
calendars, court records, and similar matters
may occur without informing the parties. A
record need not be made of the communication.
(d) Except as otherwise provided in subsection
(c), a record must be made of a communication
under this section. The parties must be
informed promptly of the communication and
granted access to the record.
These statutory provisions “emphasize the role of judicial
communications” and “require that a record be made of the
conversation and that the parties have access to that record in
order to be informed of the content of the conversation.” Official
Commentary, N.C. Gen. Stat. § 50A-110. Relevant to the disposition
of the issue in this case, a “record includes . . . a memorandum .
. . made by a court after the communication.” Id.
In the instant case, mother requested the Vermont court
“consult with the appropriate judge presiding over the October 7,
2002 civil session of the Wake County District Court with respect
to a determination of jurisdiction in this matter.” The Vermontcourt, in its order, noted it had contacted the North Carolina
court and the conversation disclosed that the facts alleged by the
parties in their respective cases were “substantially similar.”
The order of the Vermont court also noted the conversation covered
certain aspects of the procedural history of the proceeding in
North Carolina.
We hold the Vermont order is a sufficient record of the
communication between Vermont and North Carolina. First, the
factual issues covered in the conversation were those alleged by
and known to mother. Indeed, it appears that her version of the
events leading up to the proceedings were considered and adopted as
comporting with the facts as alleged by father. Mother does not
contest the validity of the procedural history as set out in the
Vermont order concerning the North Carolina proceeding. Second,
even if the statute required more than the summary of the
conversation as included in the Vermont order, the record before
this Court indicates that a transcript was made by the court in
Vermont, and nothing in the statute or official commentary
specifies which court taking part in the conversation has the
affirmative duty to make the record. On the contrary, it is
sufficient if either court makes a record and that record is made
available. Finally, the North Carolina court stated it was “basing
[its] order . . . not necessarily on . . . any conversation with
the [Vermont] judge, but on a review of the Vermont order and the
findings of fact contained therein.”
In light of the North
Carolina court's express declaration that the communication between
the courts was not a factor in deciding the jurisdictional issue,we
fail to see how mother was deprived of “an opportunity to fairly
and fully present facts and arguments on the jurisdictional issue
before [the] determination [was] made.” Official Commentary, N.C.
Gen. Stat. § 50A-110.
We make one final observation regarding the record of the
communication made in this case: when making a record as
contemplated by N.C. Gen. Stat. § 50A-110, the better practice is
to include in the record greater detail than the minimum level
strictly required by the statute. Generous disclosure regarding a
communication between courts better enables the parties to properly
prepare for and respond to the issues raised and discussed in the
communication.
IV. Use of Law Enforcement Officials
Mother asserts the North Carolina court erred in authorizing
the use of law enforcement officials to assist father in obtaining
custody of the minor children. Mother's first argument relates to
the fact that the Vermont 8 October 2002 order concerning use of
law enforcement officials was issued two weeks before mother was
noticed for a hearing on 24 October 2002. Nevertheless, mother was
properly noticed on 26 August 2002 concerning the 18 September 2002
hearing for plaintiff's motion to enforce the custody order.
Moreover, the North Carolina court's order of enforcement was based
upon the 24 September 2002 order and not the 8 October 2002 order
by the Vermont Court.
(See footnote 5)
Mother's second argument relates to her assertion that “the
record does not reflect any compliance by the Father with . . .
[N.C. Gen. Stat. § 50A-305] . . . requiring notice to the Mother .
. . twenty days . . . before registration is effective[.]” North
Carolina General Statutes § 50A-305 provides for the manner in
which a party registers in this State a child-custody determination
issued by a court of another state. To register such a child-
custody determination in this State, the party seeking registration
must provide the following materials to the appropriate court:
(1) A letter or other document requesting
registration;
(2) Two copies, including one certified copy,
of the determination sought to be registered,
and a statement under penalty of perjury that
to the best of the knowledge and belief of the
person seeking registration the order has not
been modified; and
(3) Except as otherwise provided in G.S. 50A-
209, the name and address of the person
seeking registration and any parent or person
acting as a parent who has been awarded
custody or visitation in the child-custody
determination sought to be registered.
N.C. Gen. Stat. § 50A-305(a). Once the registering court receives
these documents, the court (1) files the child-custody
determination as a foreign judgment with the accompanying documents
and information and (2) directs the party seeking registration toserve
notice to certain, specified individuals. N.C. Gen. Stat. §
50A-305(b) (2003). This notice must state that the registered
determination, as of its date of registration, is enforceable in
the same manner as a North Carolina child-custody determination. N.C.
Gen. Stat. § 50A-305(c)(1) (2003). Once the required notice
is served, a twenty-day period begins, during which the following,
limited challenges to the registration are available:
(1) The issuing court did not have
jurisdiction under Part 2;
(2) The child-custody determination sought to
be registered has been vacated, stayed, or
modified by a court having jurisdiction to do
so under Part 2; or
(3) The person contesting registration was
entitled to notice, but notice was not given
in accordance with the standards of G.S. 50A-
108 in the proceedings before the court that
issued the order for which registration is
sought.
N.C. Gen. Stat. § 50A-305(d) (2003). At the earlier of the passing
of the twenty-day window or a hearing in which the North Carolina
court rejects the limited grounds upon which a party may oppose
registration, the registered order is confirmed. N.C. Gen. Stat.
§ 50A-305(e) (2003). Thereafter, the party opposing the registered
order may only challenge the order by showing it has been vacated,
stayed, or modified by a court properly exercising jurisdiction.
N.C. Gen. Stat. § 50A-308(d)(2) (2003).
Thus, contrary to mother's contention, nothing in the statute
requires that the party seeking registration wait twenty days
before registration is effective. Rather, the twenty-day period
provides the time frame during which a party may oppose
registration on the grounds provided for in the statute or belimited to the sole ground provided in N.C. Gen. Stat. § 50A-
308(d)(2).
(See footnote 6)
While it appears likely that mother did not receive notice
technically complying with the provisions of N.C. Gen. Stat. § 50A-
305 prior to the hearing, it is clear that mother received actual
notice of the proceedings and was present when the North Carolina
court held a hearing on both “[mother's] motion for North Carolina
to assume jurisdiction, [and father's] motion . . . to enforce the
Vermont order.” At that hearing, mother made no objection or
argument predicated on a lack of notice with respect to father's
motion to enforce. This is true despite the fact that father
specifically stated “we waive any objection to any notice or
anything like that on the hearing. So if they do the same, so we
don't have to deal with that later.” Thereafter, mother proceeded
with the hearing both on her motion regarding priority and
existence of North Carolina's jurisdiction as well as father's
motion to enforce the child-custody determination by the Vermont
court.
Moreover, the North Carolina court received evidence of and
considered the grounds upon which mother could challenge the
registration of the Vermont child-custody determination and
rejected them. As the North Carolina court held at the hearing and
we have approved of on appeal, Vermont had jurisdiction over the
child-custody determination. Likewise, mother received the noticecomporting with both our UCCJEA provisions and Vermont's UCCJA
provisions regarding the 18 September 2002 hearing and 24 September
2002 order. Nothing in the record indicates the Vermont order has
been stayed, modified, or vacated. In short, the Vermont order was
registered, mother was afforded a chance to challenge the validity
of that order on the bases provided for under our UCCJEA, and those
challenges failed. We hold the North Carolina court appropriately
determined the 24 September 2002 order should be enforced.
Mother also contends that neither Vermont's UCCJA provisions
nor our UCCJEA provisions allow for the North Carolina court's use
of law enforcement officers to effectuate the return of the
children to father. First, even if Vermont did not have the
authority to issue enforcement orders under its UCCJA, the North
Carolina court would still be entitled to enforce a registered
child-custody determination by any means provided for under the
UCCJEA. N.C. Gen. Stat. § 50A-306 (2003). Nothing in our statutes
indicates our courts must wait for an “enabling” order from another
court that properly directs the use of law enforcement. Thus, our
review concerns whether the North Carolina court erred in
authorizing the use of law enforcement to effectuate a registered
child-custody determination made by a home state exercising
jurisdiction in substantial conformity with our UCCJEA.
In a previous ruling by this Court, we vacated a trial court's
order invoking the use of law enforcement to effectuate the custody
determination made by a home state on the grounds that it exceeded
its authority under North Carolina's UCCJA. In re Bhatti,
98 N.C.
App. 493, 391 S.E.2d 201 (1990). “The UCCJEA anticipates a
greaterenforcement role for law enforcement officers than did the
UCCJA.” 3 Suzanne Reynolds, Lee's North Carolina Family Law § 13.142(e)
(5th rev. ed. 2002). Provisions in the UCCJEA clearly approve of
the use of law enforcement officials under certain circumstances.
See, e.g., N.C. Gen. Stat. §§ 50A-311, -315, and -316. In the
absence of those circumstances, however, the trial court remains
limited, as it was under the UCCJA, to traditional contempt
proceedings. Bhatti, 98 N.C. App. at 497-98, 391 S.E.2d at 204.
Because the circumstances allowing for the use of law enforcement
officials are not present in this case
(See footnote 7)
and because we remain
“unaware of any statutory basis for invoking the participation of
law enforcement officers in producing the children[,]” we vacate
the portion of the North Carolina court's order authorizing the use
of law enforcement officials.
Affirmed in part, vacated in part.
Judges McGEE and STEELMAN concur.
*** Converted from WordPerfect ***