Melissa (Buckley) Hatchell v. Jerry Buckley

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON JANUARY 1999 SESSION

FILED

February 4, 1999

MELISSA (BUCKLEY) ) Shelby Chancery No. 109146-3

HATCHELL, ) Cecil Crowson, Jr.

) Appe llate Court C lerk

Petitioner/Appellant ) Appeal No. 02A01-9801-CV-

00008

)

v. )

)

JERRY BUCKLEY, )

)

Respondent/Appellee )

APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE

THE HONORABLE D. J. ALISSANDRATOS, JUDGE

For the Appellant:

Beth Cocke

W. Chris Harrison

1080 Brookfield, Suite 100

Memphis, TN 38119

For the Appellee:

Dorothy J. Pounders

1770 Kirby Parkway, Suite 100

Memphis, TN 38138

AFFIRMED

WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

W. FRANK CRAWFORD, JUDGE

DAVID R. FARMER, JUDGE

OPINION

These parties were divorced in Arkansas on April 17, 1996. A Property

Settlement Agreement was incorporated in the judgment which awarded

custody of two children to Mother.

In August, 1996, Mother moved to Tennessee with the children. In the

interim, the Arkansas judgment was modified, on October 30, 1996, by

awarding standard visitation to Father, who remains a resident of Arkansas.

The modification was not pleasing to Mother, whose failure to obey the

Arkansas judgment resulted in a Petition for Contempt being filed against her in

the Chancery Court of Crittendon County. She appeared and filed a motion to

dismiss, alleging that Arkansas was without jurisdiction, since she and the

children had resided in Tennessee more than six months. The Arkansas court

disagreed, holding that it had continuing jurisdiction.

On March 13, 1997, Mother filed a Petition to Enroll Foreign Judgment

in the Chancery Court of Shelby County, Tennessee, which included a motion

to modify it by termination of visitation. This petition was amended the

following day to allege that the children had suffered physical abuse, and

sought injunctive relief, not otherwise specified.

Father moved to dismiss, alleging that Tennessee lacked jurisdiction. He

denied the allegations of abuse. The Chancellor agreed, finding that jurisdiction

continued in Arkansas. The Petition to Enroll and Modify was thereupon

dismissed.

Mother appeals, and presents for review the propriety of the dismissal of

her petition.

Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness

2

of the finding, unless the preponderance of the evidence is otherwise. TENN. R.

APP. P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.

1996).

Young v. Smith, 939 S.W.2d 576 (Tenn. App. 1996) is dispositive of this

case. The parties were divorced in Arkansas. Mother and child moved to

Shelby County, Tennessee, where Mother sought to enroll the Arkansas

judgment and to have it modified. She had resided, with the child, for longer

than six months in Tennessee. As here, the thrust of her action in Tennessee

was directed to the termination of visitation. As here, a contempt citation was

issued by Arkansas because of her defiance of the Arkansas judgment. We

held,

. . . present jurisdictional issues which require this Court to refer to

the Uniform Child Custody Jurisdiction Act (UCCJA) of the

appropriate states; see, e.g. T.C.A. § 36-6-201 et seq. (Michie 1991);

Ark. Code Ann. § 9-13-201 et seq. (Michie 1987 & Supp.1995), and

the Parental Kidnaping Prevention Act (PKPA), 28 U.S.C.A. § 1738A

(West 1994). Where provisions of a state’s UCCJA are in conflict

with the PKPA, the PKPA preempts the law of the individual state.

Brown v. Brown, 847 S.W.2d 496 (Tenn. 1993); Atkins v. Atkins, 308

Ark. 1, 823 S.W.2d 816 (Ark. 1992).

.....

Although Tennessee is now the ‘home state’1 of the minor child, the

PKPA provides that a state which makes an initial custody

determination retains jurisdiction to modify that decision if ‘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.’ 28 U.S.C.A. § 1738(A)(d). Subsection (c) provides:

A child custody determination made by a court of a

State is consistent with the provisions of this section

only if -

(1) such court has jurisdiction under the

law of such State . . .

1

Under the PKPA, a home state is “the 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 . . .” 28 U.S.C.A. § 1738A(b)(4).

3

28 U.S.C.A. § 1738(A)(c). Thus, under subsection (c), this Court is

required to refer to Arkansas’s jurisdictional requirements to

determine whether or not Arkansas continues to have jurisdiction

under its own law.

Arkansas’s jurisdictional statute provides that Arkansas courts have

jurisdiction to modify a child custody determination if, inter alia:

It is in the best interest of the child that a court of this

state assume jurisdiction because (i) the child and his

parents, or the child and at least one (1) contestant, have

a significant connection with this state and (ii) there is

available in this state substantial evidence concerning

the child’s present or future care, protection, training

and personal relationships.

Ark. Code Ann. § 9-13-203(a)(2). Although Tennessee’s version of

the UCCJA would require this Court to determine whether Arkansas

or Tennessee is [child’s] “home state” before considering the

“significant connection” test, Arkansas’s laws allow the courts of that

state to assert jurisdiction based on either home state status or on the

basis of a significant connection of the child and one contestant to the

state.

Under the PKPA, this court is required to defer to the jurisdictional

standards established by the Arkansas courts. We find that under

Arkansas law, that state has continuing jurisdiction because [Jerry

Buckley] a contestant, is a resident of Arkansas and by virtue of that

fact has significant connections with that state and . . . the children

were born there and continue to visit Arkansas on a regular basis.

Under Arkansas law, [such] visits constitute a significant connection

with that state. See, e.g. Brown v. Brown, 20 Ark. App. 251, 663

S.W.2d 190, 191 (1984) (finding that children had ‘significant

connection’ under § 9-13-203(a)(2) [former Ark. Code Ann. § 34-

2703(a)(2)] with Arkansas based on the fact that children visited their

father in Arkansas for ‘reasonable weekend visitations . . . and two

weeks . . . during the summer’); O’Daniel v. Walker, 14 Ark. App.

210, 686 S.W.2d 805-07 (1985) (finding that Arkansas had

continuing jurisdiction to modify a custody decree because the

children, who resided with their mother in Tennessee but visited their

father in Arkansas, where he was a resident, had a ‘significant

connection’ with Arkansas as required by § 9-13-203(a)(2) [former

Ark. Code Ann. § 34-2703(a)(2)] ). Furthermore, there is evidence

in the instant case that the Arkansas courts have had numerous

dealings with the parties and thus have ‘substantial evidence

concerning the child’s present or future care, protection, training, and

personal relationships,’ as required by the statute. Ark. Code Ann. §

9-13-203(a)(2).

Although Arkansas law controls in the case at bar, the example cited

by the Tennessee Supreme Court in State ex rel. Cooper v. Hamilton

4

is instructive in explaining the concept of continuing jurisdiction

under the PKPA:

A typical example is the case of the couple who are

divorced in State A, their matrimonial home state, and

whose children are awarded to the wife, subject to

visitation rights of the husband. Wife and children

move to State B, with or without permission of the court

to remove the children. State A has continuing

jurisdiction and the courts in State B may not hear the

wife’s petition to make her the sole custodian, eliminate

visitation rights, or make any other modification of the

decree, even though State B has in the meantime become

the ‘home state’ under section 3 [of the UCCJA]. The

jurisdiction of State A continues and is exclusive as long

as the husband lives in State A unless he loses contact

with the children, for example, by not using his

visitation privileges for three years.

688 S.W.2d 821, 826 (Tenn. 1985).

Because Arkansas has continuing jurisdiction under the PKPA, the

courts of this state may not assert jurisdiction to affect the Arkansas

custody determination. The PKPA provides:

(f) A court of a State may modify a determination of the

custody of the same child made by a court of another

State, if -

(1) it has jurisdiction to make such a child

custody determination; and

(2) the court of the other State no longer

has jurisdiction, or it has declined to

exercise such jurisdiction to modify such

determination.

(g) A court of the State shall not exercise jurisdiction in

any proceeding for a custody 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 determination.

28 U.S.C.A. § 1738A.

Young v. Smith, 939 S.W.2d 576 (Tenn. App. 1996).

Arkansas has not declined to exercise jurisdiction in this case, and the

Courts of Tennessee are therefore without subject matter jurisdiction.

The judgment is affirmed at the costs of the appellant.

5

_______________________________

William H. Inman, Senior Judge

CONCUR:

_______________________________

W. Frank Crawford, Judge

_______________________________

David R. Farmer, Judge

6

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON JANUARY 1999 SESSION

-------------------------------------------------------------------------

MELISSA (BUCKLEY), )

HATCHELL, ) Shelby Chancery No. 109146-3

)

Respondent/Appellant )

) Appeal No. 02A01-9801-CV-00008

v. )

)

JERRY BUCKLEY, )

)

Petitioner/Appellee )

______________________________________________________________

JUDGMENT

______________________________________________________________

This cause came on to be regularly heard and considered by this Court, and

for the reasons stated in the Opinion of this Court filed this date, it is ORDERED

that:

1. The judgment of the trial court is affirmed.

2. Costs of this appeal are taxed against the appellant, Melissa (Buckley)

Hatchell, for which execution may issue if necessary.

____________________________

INMAN, S.J.

__________________________

CRAWFORD, J.

____________________________

FARMER, J.