{ "id": 8526843, "name": "SHERRY DANIELS PHEASANT, Plaintiff v. MATTHEW McKIBBEN, Defendant", "name_abbreviation": "Pheasant v. McKibben", "decision_date": "1990-10-02", "docket_number": "No. 9030DC1", "first_page": "379", "last_page": "385", "citations": [ { "type": "official", "cite": "100 N.C. App. 379" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "96 ALR3d 968", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "264 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575818 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0715-01" ] }, { "cite": "258 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550217 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0134-01" ] }, { "cite": "Ga. Code Ann. \u00a7 19-9-43", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "year": 1982, "opinion_index": 0 }, { "cite": "327 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522470 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0001-01" ] }, { "cite": "369 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525356 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0541-01" ] }, { "cite": "377 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528025 ], "year": 1989, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0315-01" ] }, { "cite": "336 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "447" }, { "page": "446" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525171 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "730" }, { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0726-01" ] } ], "analysis": { "cardinality": 521, "char_count": 14632, "ocr_confidence": 0.744, "pagerank": { "raw": 2.895410906420983e-07, "percentile": 0.8446558081185428 }, "sha256": "06fbd42f13d02bf4afc1a03a42bc516b52501b0d24812a82cbfd8ec71e27bb98", "simhash": "1:8fe9d3ae17ef1f71", "word_count": 2347 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and DUNCAN concur." ], "parties": [ "SHERRY DANIELS PHEASANT, Plaintiff v. MATTHEW McKIBBEN, Defendant" ], "opinions": [ { "text": "ORR, Judge.\nThe issue on appeal is whether the trial court erred in exercising subject matter jurisdiction to modify the Georgia custody decree granting custody to plaintiff pursuant to North Carolina\u2019s version of the Uniform Child Custody Jurisdiction Act (UCCJA), N.C. Gen. Stat. \u00a7\u00a7 50A-1 to -25 (1989). For the reasons set forth below, we affirm the order of the trial court modifying the Georgia decree.\nIn her first assignment of error, plaintiff argues that the defendant did not comply with the requirements of N.C. Gen. Stat. \u00a7 50A-9 and that plaintiff only partially complied, such that the trial court erred in exercising jurisdiction. N.C. Gen. Stat. \u00a7 50A-9 provides in relevant part:\n(a) Every party in a custody proceeding in such party\u2019s first pleading or in an affidavit attached to that pleading shall give information under oath as to the child\u2019s present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:\n(1) Such party has participated as a party, witness, or in any other capacity in any other litigation concerning the custody of the same child in this or any other state;\n(2) Such party has information of any custody proceeding concerning the child pending in a court of this or any other state; and\n(3) Such party knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.\nThe purpose of requiring that this information be filed under oath is to assist the court in deciding if it can assume jurisdiction. Brewington v. Serrato, 77 N.C. App. 726, 730, 336 S.E.2d 444, 447 (1985). In Watson v. Watson, 93 N.C. App. 315, 319, 377 S.E.2d 809, 811 (1989), the Court noted that \u201cwe recommend that it would be better practice for District Court judges to require conformity with the provisions of G.S. \u00a7 50A-9 by the parties seeking custody before undertaking a custody determination . . . .\u201d However, the Court nevertheless affirmed the trial court\u2019s exercise of jurisdiction without first meeting the requirement of filing certain information under oath since \u201cthe question of subject matter jurisdiction ha[d] been tried and correctly determined below . . . .\u201d Id. Similarly, here the trial court, as we determine below, correctly exercised jurisdiction; thus, we decline to accept plaintiff\u2019s argument that the failure to comply fully with the \u00a7 50A-9 requirements defeats the court\u2019s subject matter jurisdiction.\nIn her second and third assignments of error, plaintiff argues that the jurisdictional requirements of N.C. Gen. Stat. \u00a7 50A-3 were not met, and thus the trial court erred in exercising jurisdiction. The relevant sections of \u00a7 50A-3 provide:\n(a) A court of this State authorized to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:\n(1) This State (i) is the home state of the child at the time of commencement of the proceeding . . .; or\n(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child\u2019s 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\u2019s present or future care, protection, training, and personal relationships;\n\u201cHome state\u201d is defined as:\nthe state in which the child immediately preceding the time involved lived with the child\u2019s parents, a parent, or a person acting as parent, for at least six consecutive months . . . . Periods of temporary absence of any of the named persons are counted as part of the six-month or other period; . . . .\nN.C. Gen. Stat. \u00a7 50A-2(5) (1989).\nThe trial court states as a finding of fact and concludes as a matter of law that North Carolina is the \u201chome state\u201d of the children and plaintiff. Plaintiff in her verified complaint alleges that \u201cthe said minor children have lived with the Plaintiff in the state of North Carolina for a period of more than six (6) consecutive months immediately preceding the commencement of this action and the state of North Carolina is the home state of said minor children at the time of the commencement of this action.\u201d Now plaintiff contends that her allegation that North Carolina is the \u201chome state,\u201d which defendant admitted in his answer, and that the children lived here for six consecutive months, which the defendant denied, was erroneous. She notes that defendant alleged and the trial court found that the children resided with defendant in Georgia from April 1988 until 25 January 1989 pursuant to the Georgia temporary custody decree.\nPlaintiff now argues that North Carolina is therefore not the \u201chome state\u201d of the children. However, the trial court found that plaintiff\u2019s allegations were supported by evidence at trial. Generally, on appeal a trial court\u2019s findings of fact are binding as long as the findings are supported by competent evidence. Matthews v. Prince, 90 N.C. App. 541, 369 S.E.2d 116 (1988); Hart v. Hart, 74 N.C. App. 1, 327 S.E.2d 631 (1985). The children had lived in North Carolina continuously from March 1987 until March 1989 when this action was filed except for the ten-month period during which the children resided with defendant in Georgia pursuant to the Georgia temporary custody decree. Under N.C. Gen. Stat. \u00a7 50A-2(5), \u201cperiods of temporary absence of any of the named persons are counted as part of the six-month . . . period.\u201d The period during which the children resided in Georgia pursuant to the temporary custody decree was a period of \u201ctemporary absence,\u201d and thus the six-month requirement was met.\nFurther, the plaintiff in her complaint states that she resided in North Carolina for the entire period. Therefore, the trial court correctly determined that North Carolina was the home state, thereby meeting one of the bases of jurisdiction over this child custody action under \u00a7 50A-3.\nAlternatively, the trial court concluded as a matter of law that there were \u201csubstantial and significant connections between the children and North Carolina.\u201d There was sufficient evidence to enable the trial court to conclude that the children and one of the parents have a \u201csignificant connection with this State\u201d and that there is \u201csubstantial evidence relevant to the child[ren]\u2019s present or future care, protection, training, and personal relationships\u201d under N.C. Gen. Stat. \u00a7 50A-3(a)(2)(i)-(ii). The trial court found that the children had resided in North Carolina for all but ten months of the two-year period prior to this action and that plaintiff resided in North Carolina for the entire period. Thus, the children and plaintiff had a \u201csignificant connection\u201d with North Carolina, and there was substantial evidence regarding the children\u2019s \u201cpresent or future care, protection, training, and personal relationships\u201d in North Carolina.\nIn her fourth assignment of error, plaintiff contends that Georgia had continuing jurisdiction, and thus the trial court erred in exercising jurisdiction. The requirements for the modification of a custody decree issued by another state are:\n(a) 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 with this Chapter or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.\nN.C. Gen. Stat. \u00a7 50A-14 (1989).\nThe threshold issue under N.C. Gen. Stat. \u00a7 50A-14 is whether Georgia declined to exercise jurisdiction or \u201cdoes not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Chapter.\u201d See Brewington, 77 N.C. App. at 729, 336 S.E.2d at 446. There is no evidence in the record indicating that Georgia has declined to exercise jurisdiction. As to whether Georgia has jurisdiction \u201cunder jurisdictional prerequisites substantially in accordance with\u201d North Carolina\u2019s version of the UCCJA, we note that Georgia\u2019s version of the UCCJA conforms to North Carolina\u2019s version. See Ga. Code Ann. \u00a7 19-9-43 (1982). We conclude above that the trial court correctly determined that North Carolina and not Georgia is the \u201chome state.\u201d Alternatively, we conclude that the trial court correctly determined that the children and plaintiff have a \u201csignificant connection\u201d to North Carolina and there is \u201csubstantial evidence relevant . . .\u201d in North Carolina. Thus, the trial court did not err in assuming jurisdiction and modifying the Georgia decree.\nIn her final assignments of error, plaintiff contends that the trial court erred in its ruling on plaintiff\u2019s motion filed 6 October 1989 pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (1983), alleging the trial court\u2019s lack of subject matter jurisdiction. A trial court may consider a Rule 60(b) motion which is filed though an appeal is pending in order to indicate how it would rule on the motion were the appeal not pending. Bell v. Martin, 43 N.C. App. 134, 258 S.E.2d 403 (1979), rev\u2019d on other grounds, 299 N.C. 715, 264 S.E.2d 101 (1980). We have previously concluded that the trial court correctly exercised subject matter jurisdiction; thus, there was no error regarding the Rule 60(b) determination.\nIn summary, we conclude that the trial court correctly exercised subject matter jurisdiction in modifying the child custody decree. Therefore, the order of the trial court is affirmed.\nAffirmed.\nJudges COZORT and DUNCAN concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "A. Marshall Basinger, II, for plaintiff-appellant.", "Matthew McKihben, defendant-appellee, pro se." ], "corrections": "", "head_matter": "SHERRY DANIELS PHEASANT, Plaintiff v. MATTHEW McKIBBEN, Defendant\nNo. 9030DC1\n(Filed 2 October 1990)\n1. Divorce and Alimony \u00a7 23 (NCI3d)\u2014 child custody \u2014 information as to child\u2019s address and residence \u2014not provided \u2014 subject matter jurisdiction\nThe trial court\u2019s failure to require full compliance with N.C.G.S. \u00a7 50A-9, which requires parties in a custody proceeding to file information including the child\u2019s past and present addresses and residences, did not defeat the court\u2019s subject matter jurisdiction. The purpose of requiring this information is to assist the court in deciding if it can assume jurisdiction; while the better practice is to require conformity with the provisions of the statute by the party seeking custody before undertaking a custody determination, the trial court here correctly exercised jurisdiction.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 963, 964.\n2. Divorce and Alimony \u00a7 26 (NCI3d)\u2014 child custody \u2014Georgia decree \u2014 jurisdiction in North Carolina\nThe trial court in a child custody action correctly determined that North Carolina was the home state, thereby meeting one of the bases of jurisdiction under N.C.G.S. \u00a7 50A-3, where the children had resided in North Carolina for all but ten months of the two-year period prior to this action; the ten-month period when the children resided with defendant in Georgia was a temporary absence under the statutes; plaintiff states in her complaint that she resided in North Carolina for the entire period; there was sufficient evidence to enable the trial court to conclude that the children and one of the parents have a significant connection with the state; and there is \u201csubstantial evidence relevant to the children\u2019s present or future care, protection, training, and personal relationships\u201d in North Carolina.\nAm Jur 2d, Divorce and Separation \u00a7 1145.\nValidity, construction, and application of Uniform Child Custody Jurisdiction Act. 96 ALR3d 968.\n3. Divorce and Alimony \u00a7 26 (NCI3d)\u2014 child custody \u2014Georgia decree \u2014North Carolina jurisdiction\nThe North Carolina court did not err by assuming jurisdiction in a child custody action and modifying a Georgia decree even though there was no evidence that Georgia had declined to exercise jurisdiction where Georgia\u2019s version of the UCCJA conforms to North Carolina\u2019s version, the trial court correctly determined that North Carolina is the home state, the children and plaintiff had a significant connection to North Carolina, and there is substantial relevant evidence in North Carolina.\nAm Jur 2d, Divorce and Separation \u00a7 1145.\nValidity, construction, and application of Uniform Child Custody Jurisdiction Act. 96 ALR3d 968.\n4. Rules of Civil Procedure \u00a7 60.1 (NCI3d) \u2014 child custody\u2014 motion alleging lack of subject matter jurisdiction \u2014Rule 60 motion considered while appeal pending\nThe trial court did not err by denying plaintiff\u2019s motion under N.C.G.S. \u00a7 1A-1, Rule 60(b) alleging lack of subject matter jurisdiction where the trial court correctly exercised jurisdiction. A trial court may correctly consider a Rule 60(b) motion which is filed while an appeal is pending in order to indicate how it would rule were the appeal not pending.\nAm Jur 2d, Appeal and Error \u00a7 352; Divorce and Separation \u00a7 968.\nAPPEAL by plaintiff from order entered 2 August 1989 by Judge John J. Snow, Jr., in SWAIN County District Court. Heard in the Court of Appeals 24 August 1990.\nPursuant to an agreement incorporated into a divorce decree entered in Superior Court of Gwinnett County, Georgia, on 12 February 1987, plaintiff was granted permanent custody of the two minor children, and her husband was granted visitation. At the time of the decree, both plaintiff and defendant were residing in Georgia. In March 1987, plaintiff moved with the children to Cherokee, North Carolina, where she remarried.\nIn April 1988, defendant, while in North Carolina to pick up the children for a scheduled visitation, became aware of incidents of domestic violence between plaintiff and her husband. Defendant sought and was granted temporary custody by the Juvenile Court of Gwinnett County, Georgia, and the children moved to Georgia with the defendant. The order granting temporary custody was rescinded on 25 January 1989, and the children were returned to plaintiff in North Carolina.\nPlaintiff filed this civil action on 16 March 1989 seeking modification of the order of the Georgia court to terminate or limit defendant\u2019s visitation privileges. Defendant counterclaimed seeking custody of the children. The case was heard on 27 July 1989 with the court granting the change of custody and directing modification of the 1987 Georgia decree by returning the children to Georgia.\nFrom this order, plaintiff appeals.\nA. Marshall Basinger, II, for plaintiff-appellant.\nMatthew McKihben, defendant-appellee, pro se." }, "file_name": "0379-01", "first_page_order": 411, "last_page_order": 417 }