314 S.E.2d 297 | N.C. Ct. App. | 1984
Dorothy D. COPELAND
v.
Arthur D. COPELAND.
Court of Appeals of North Carolina.
*298 Edwards & Edwards by Walter G. Edwards, Jr., Hertford, for plaintiff.
W.T. Culpepper, III, Edenton, for defendant.
*299 WELLS, Judge.
Enforcement of out-of-state child custody orders is governed by the terms of the Uniform Child Custody Jurisdiction Act (UCCJA), N.C.Gen.Stat.§§ 50A-1 through -25, adopted in North Carolina in 1979. Under the UCCJA, a court may properly enforce a child custody order only if the jurisdictional requirements of G.S. § 50A-3 and the notice requirements of G.S. § 50A-4 and § 50A-5 are met, see G.S. § 50A-13. States which have adopted the UCCJA must enforce an out-of-state custody order which substantially complies with the terms of the UCCJA, regardless of whether the state issuing the order has adopted the UCCJA, G.S. § 50A-13, Nabors v. Farrell, 53 N.C.App. 345, 280 S.E.2d 763 (1981).
We note that the trial court determined the question of enforceability of the Massachusetts order based on whether it complied with the terms of N.C.Gen.Stat. § 50-13.5(d)(2) (1976),[1] rather than the provisions of the UCCJA. This was error. The trial court apparently used G.S. § 50.13.5(d)(2) as a guideline because of the terms of G.S. § 50A-25, which states that "[n]othing in ... [the UCCJA] shall be interpreted to limit the authority of the court to issue an interlocutory order under the provisions of G.S. 50-13.5(d)(2) ..." G.S. § 50A-25 merely makes it clear that passage of the UCCJA in North Carolina did not eliminate the power of our trial courts to issue temporary custody orders under G.S. § 50-13.5(d)(2). However, nothing in the terms of G.S. § 50A-25 in any way changes the prerequisites to enforcement of an out-of-state custody order under the UCCJA. It is clear that states may set their own standards for enforcement of in-state custody orders, as in G.S. § 50-13.5(d)(2), which are different from the UCCJA standards. The fact that rules concerning enforcement of a state's own custody decrees may vary from the UCCJA does not change the requirements for enforcement of another state's custody orders under the UCCJA. See, e.g., 9 U.L.A. Mat., Fam. & H. Laws, UCCJA, Section 4, Official Comment, (1979): "As to persons in the forum state, the general law of the state applies; others are notified in accordance with section 5."
The issue before us, therefore, is whether the Massachusetts court custody order substantially complies with the terms of the UCCJA. Under G.S. § 50A-3(a)(1), a state has subject matter jurisdiction and may properly decide child custody matters if the state "... (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this State because of the child's removal or retention by a person claiming the child's custody or for other reasons, and a parent or person acting as parent continues to live in this State...." The facts clearly show that defendant's children were residents of Massachusetts until he took them to North Carolina in September of 1982, and that the plaintiff remained in Massachusetts. The Massachusetts courts, therefore, had subject matter jurisdiction under G.S. § 50A-3 to enter a valid child custody order.
We find, however, that the Massachusetts court did not comply with the notice provisions of G.S. §§ 50A-4 and -5 and therefore did not obtain personal jurisdiction over defendant. Under G.S. § 50A-4, "[b]efore making a decree under this Chapter reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child." Defendant clearly had a right to notice under the Act before the Massachusetts court entered its temporary order. The Massachusetts order also fails to meet the requirements of G.S. § 50A-5, which provides that the notice required under G.S. § 50A-4 "shall be given in a manner reasonably calculated to give actual notice and *300 shall be served in the same manner as the manner of service of process set out in G.S. 1A-1, Rule 4...." Plaintiff concedes that defendant was not served with process pursuant to Rule 4 of the Rules of Civil Procedure. It is clear that "[s]trict compliance with sections 4 and 5 is essential for ... a custody decree[`s] ... recognition and enforcement in other states under sections 12, 13 and 15." 9 U.L.A.Mat., Fam. & H.Laws, supra. While the Massachusetts court's failure to obtain personal jurisdiction over defendant requires us to reverse the trial court's order, we commend the trial court's efforts to comply with the spirit of the UCCJA, by discouraging unilateral removals of children from their custodial parent. Because we hold that the trial court's order must be reversed, we need not reach defendant's other assignments of error.
Reversed.
ARNOLD and BRASWELL, JJ., concur.
NOTES
[1] § 50-13.5(d)(2) If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided.