{ "id": 11914686, "name": "RODNEY D. BECK, Plaintiff-Appellee v. CHRISTINE LYNN BECK, Defendant-Appellant", "name_abbreviation": "Beck v. Beck", "decision_date": "1996-08-20", "docket_number": "No. COA95-1199", "first_page": "629", "last_page": "634", "citations": [ { "type": "official", "cite": "123 N.C. App. 629" } ], "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": "83 ALR4th 742", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "6 ALR5th 1", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "5 ALR5th 550", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "weight": 2, "opinion_index": -1 }, { "cite": "78 ALR4th 1028", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "465 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "47", "parenthetical": "Judge Greene concurring" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916774 ], "year": 1996, "pin_cites": [ { "page": "298", "parenthetical": "Judge Greene concurring" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0292-01" ] }, { "cite": "376 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527826 ], "year": 1989, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0072-01" ] } ], "analysis": { "cardinality": 491, "char_count": 12903, "ocr_confidence": 0.731, "pagerank": { "raw": 9.588139212323619e-08, "percentile": 0.5261243029999046 }, "sha256": "c7c60743da7372d3bd33cf8e5e8fd388fcda89c1b854165cf055c18fc0a67da8", "simhash": "1:8fc930af522a18d0", "word_count": 2085 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and MARTIN, JOHN C. concur." ], "parties": [ "RODNEY D. BECK, Plaintiff-Appellee v. CHRISTINE LYNN BECK, Defendant-Appellant" ], "opinions": [ { "text": "WALKER, Judge.\nThe parties were married on 13 August 1990 and had two children, Kyle Andrew Beck, born 29 October 1991, and Tyler Aaron Beck, bom 6 October 1993. The parties moved to Kentucky in September 1992. On 30 September 1993, defendant moved to North Carolina with her son, Kyle. On 11 January 1994, the parties entered into a separation agreement which granted plaintiff \u201creasonable and liberal visitation\u201d with the children but did not provide a schedule for such visitation. A divorce decree was entered in Kentucky incorporating the parties\u2019 separation agreement on 31 March 1994.\nFollowing incorporation of the parties\u2019 agreement, the plaintiff was unable to schedule visitation with his children. Therefore, plaintiff made a motion to modify the custody order to include a specific schedule for visitation. On 7 February 1995, an order was entered granting plaintiff specific times for visitation, including one week in the spring. Thereafter, defendant continued to deny plaintiff visitation with their children and filed this action in Guilford County District Court to change jurisdiction and modify the Kentucky order. Pursuant to this action, defendant raised for the first time the issue of plaintiff\u2019s fitness.\nThe trial court made the following relevant conclusions:\nConclusions of Law\n(1) The Hardin County District Court for Hardin County Kentucky has jurisdiction over the parties and subject matter of this action.\n(2) It would be improper for this court, in this circumstance, to assume jurisdiction to adjudicate issues of child custody, visitation, and support when the State of Kentucky has properly done\nso. . . .\nFrom the trial court\u2019s order declining to assume jurisdiction and dismissing her motion to modify custody, defendant appeals.\nThe issue of a state\u2019s jurisdiction over child custody matters is governed by the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. \u00a7 1738A (1980), and the Uniform Child Custody Jurisdiction Act (UCCJA), N.C. Gen. Stat. \u00a7 50A (1989). See K.R.S. 403.400-.620 (1980). \u201cThe PKPA establishes national policy in the area of custody jurisdiction.\u201d Gasser v. Sperry, 93 N.C. App. 72, 74, 376 S.E.2d 478, 480 (1989). To the extent that any state custody statute conflicts with the PKPA, the federal act controls. Id.\nOn appeal defendant contends the trial court erred by finding that Kentucky properly assumed jurisdiction. Under the UCCJA, a state has jurisdiction to enter an initial or modified custody decree if:\n(1) This State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child\u2019s home state within six months before commencement of the proceeding and the child is absent from this State because of the child\u2019s removal or retention by a person claiming the child\u2019s custody or for other reasons, and a parent or person acting as parent continues to live in this State; 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; or\n(3) The child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or\n(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.\nN.C. Gen. Stat. \u00a7 50A-3 (1989); See K.R.S. 403.420 (1980).\nThe PKPA provides substantially the same jurisdictional prerequisites as the UCCJA. Similarly, the PKPA allows a state to assume jurisdiction to determine custody issues if such state is the child\u2019s \u201chome state.\u201d 28 U.S.C. \u00a7 1738A (c)(2)(A). However, unlike the UCCJA, the PKPA prohibits states from assuming jurisdiction under the \u201cbest interest\u201d or \u201csignificant connection\u201d factor unless no state is the \u201chome state.\u201d 28 U.S.C. \u00a7 1738A (c)(2)(B). The PKPA defines \u201chome state\u201d as:\nthe State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. . . .\n28 U.S.C. \u00a7 1738A (b)(4). This definition is substantially similar to \u201chome state\u201d as defined by the UCCJA. N.C. Gen. Stat. \u00a7 50A-2(5); See K.R.S. 403.410(5) (1980).\nWhen plaintiff filed his divorce petition on 3 November 1993 requesting that Kentucky enter an order incorporating the parties\u2019 separation agreement, Tyler was less than six months old. Both the UCCJA and the PKPA provide that where a child is less than six months of age, the \u201chome state\u201d is the state in which the child lived from birth with any such persons. Since Tyler was born and resided here with his mother, North Carolina is the \u201chome state.\u201d As such, Kentucky may not use the \u201cbest interest\u201d or \u201csignificant connection\u201d factor as a basis for assuming jurisdiction. Thus, Kentucky did not have jurisdiction to enter the initial custody decree with respect to Tyler and the parties are therefore not bound by it. See K.R.S. 403.510 (1980) (custody decrees bind parties only if Kentucky \u201chad jurisdiction\u201d). Accordingly, North Carolina is the \u201chome state\u201d of Tyler and the trial court erred in refusing to assume this jurisdiction.\nWe next consider whether Kentucky properly assumed jurisdiction of the parties\u2019 oldest son, Kyle. The plaintiff filed his divorce petition and requested that the parties\u2019 separation agreement be incorporated on 3 November 1993. Prior to the commencement of the proceeding, Kyle had not lived in North Carolina for at least six consecutive months. Rather, Kyle lived with his parents in Kentucky from September 1992 until 23 September 1993, thereby making Kentucky his \u201chome state.\u201d Accordingly, Kentucky properly assumed jurisdiction when it entered its initial order. As such, North Carolina must recognize and enforce Kentucky\u2019s order unless this State has the authority to modify said order. N.C. Gen. Stat. \u00a7 50A-13 (1989).\nModification of another state\u2019s custody decree is governed by N.C. Gen. Stat. \u00a7 50A-14(a) (1989) which provides:\n(a) If a court of another state had 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.\nDefendant contends that the trial court erred in concluding that Kentucky has continuing jurisdiction to adjudicate matters of child custody.\nThe PKPA provides that \u201c[t]he jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.\u201d 28 U.S.C. \u00a7 1738A (d) (1980). Subsection (c)(1) requires that \u201csuch court has jurisdiction under the law of such State.\u201d Since Kentucky would have jurisdiction of Kyle under the UCCJA, that state has continuing jurisdiction to adjudicate child custody issues with respect to Kyle, and North Carolina may not modify the Kentucky order as long as the father continues to reside in Kentucky. N.C. Gen. Stat. \u00a7 50A-14(a) (modification of custody decrees); See Wilson v. Wilson, 121 N.C. App. 292, 298, 465 S.E.2d 44, 47 (1996) (Judge Greene concurring) (continuing jurisdiction exists in the state entering initial order only if, at the time of the modification request, either parent or contestant remains in the state issuing the initial custody decree).\nWe note that should Kentucky decline to exercise its jurisdiction to adjudicate custody issues with respect to Kyle, North Carolina could subsequently assert its jurisdiction as the \u201chome state\u201d and modify the Kentucky order pursuant to N.C. Gen. Stat. \u00a7 50A-14(a). In determining whether to decline jurisdiction, Kentucky \u201cmay communicate with a court of . . . [this State] and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.\u201d N.C. Gen. Stat. \u00a7 50A-7(d) (1989); See K.R.S. 403.460(4) (1980). However, there is nothing in the record to indicate that Kentucky declined to exercise its jurisdiction.\nAccordingly, we find that the court acted properly by declining to assume jurisdiction to adjudicate custody issues regarding Kyle. However, for the reasons stated above, we reverse the court\u2019s order in part and remand to the Guilford County District Court the issue of custody with respect to the parties\u2019 youngest son, fyler.\nAffirmed in part, reversed in part and remanded.\nJudges GREENE and MARTIN, JOHN C. concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "The Law Offices of William B. Mills, by Richard J. McCain and John A. Hauser, for plaintiff-appellee.", "Karen K. Fisher and James C. Lee for defendant-appellant." ], "corrections": "", "head_matter": "RODNEY D. BECK, Plaintiff-Appellee v. CHRISTINE LYNN BECK, Defendant-Appellant\nNo. COA95-1199\n(Filed 20 August 1996)\n1. Divorce and Separation \u00a7 494 (NCI4th)\u2014 child born in North Carolina \u2014 father in Kentucky \u2014 North Carolina as home state \u2014 North Carolina court\u2019s refusal to exercise jurisdiction \u2014 error\nWhere one of the parties\u2019 children was born in North Carolina and resided here with his mother, North Carolina was the \u201chome state\u201d; Kentucky, the state in which plaintiff filed his divorce petition, did not have jurisdiction to enter the initial custody decree with respect to that child and the parties were therefore not bound by it; and the trial court erred in refusing to assume jurisdiction of defendant\u2019s action to modify the custody order with respect to that child. N.C.G.S. \u00a7 50A-3(1).\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 963, 964.\nWhat types of proceedings or determinations are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA). 78 ALR4th 1028.\nSignificant connection jurisdiction of court under sec. 3(a) (2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS sec. 1738A(c)(2)(B). 5 ALR5th 550.\nHome state jurisdiction of court under sec. 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS sec. 1738A(c)(2)(A). 6 ALR5th 1.\n2. Divorce and Separation \u00a7 513 (NCI4th)\u2014 Kentucky as child\u2019s home state \u2014 continuing jurisdiction \u2014 no jurisdiction in North Carolina\nThe trial court acted properly by declining to assume jurisdiction to adjudicate custody issues regarding the parties\u2019 older child, since the child had lived with his parents in Kentucky for at least six consecutive months and Kentucky was his \u201chome state\u201d; Kentucky properly assumed jurisdiction when it entered its initial order; Kentucky had continuing jurisdiction to adjudicate child custody issues with respect to that child, and North Carolina could not modify the Kentucky order as long as plaintiff father continued to reside there or unless Kentucky declined to exercise its jurisdiction; and there was no indication that Kentucky declined to exercise its jurisdiction. N.C.G.S. \u00a7 50A-14(a).\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 963, 964, 1004, 1143-1147.\nChild custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCS sec. 1738A. 83 ALR4th 742.\nSignificant connection jurisdiction of court under sec. 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS sec. 1738A(c)(2)(B). 5 ALR5th 550.\nPending proceeding in another state as ground for declining jurisdiction under sec. 6(a) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS sec. 1738A(g). 20 ALRSth 700.\nAppeal by defendant from order entered 26 June 1995 by Judge Wendy Enochs in Guilford County District Court. Heard in the Court of Appeals 6 June 1996.\nThe Law Offices of William B. Mills, by Richard J. McCain and John A. Hauser, for plaintiff-appellee.\nKaren K. Fisher and James C. Lee for defendant-appellant." }, "file_name": "0629-01", "first_page_order": 663, "last_page_order": 668 }