Malone-Pass v. Schultz, 280 N.C. App. 449 (2021)

  • Facts: This opinion involves an appeal of a Chapter 50 custody order. This summary focuses only on the UCCJEA issues that are raised on appeal. In 2017, the parties obtained a permanent custody order from a New York court that explicitly stated it was relinquishing jurisdiction and the parties were to register the NY order in NC. Father and children resided in NC as of March 2017. Later in 2017, mother registered the NY order in NC and filed a motion in the NC court, which father responded to and countermotioned. During the pendency of the NC custody proceeding, in June 2018, father and children moved to South Carolina. In 2019, before the final hearing, mother filed a motion to dismiss for lack for subject matter jurisdiction, which the trial court denied. The court entered a final custody order. Mother appeals, arguing the court should not have exercised subject matter jurisdiction because it was obtained by fraud by father who had asserted to the NY court that he would remain in NC until the children graduated high school.
  • Subject matter is a question of law that is reviewed de novo. A party cannot give a court subject matter jurisdiction by requesting relief in it.
  • The trial court had jurisdiction to modify the NY child custody order under G.S. 50A-203. The first part of modification jurisdiction requires that NC have initial custody jurisdiction under either home state or significant connection/substantial evidence jurisdiction. Here, NC was the home state when the NC custody proceeding was commenced as the children had been living in NC with their father for more than 6 months preceding the filing of the motion. The second part of modification jurisdiction requires that a court of the other state determines it no longer has exclusive continuing jurisdiction or a NC court would be a more convenient forum. NY determined NC would be a more convenient forum when in its ordered it relinquished jurisdiction and ordered the parents to register the NY order in NC within 7 days.
  • The jurisdictional bar under G.S. 50A-208, based on unjustifiable conduct by a party, does not apply. Under G.S. 50A-208, the court declines subject matter jurisdiction resulting from a parent’s unjustifiable conduct unless an exception applies.
    • The court did not find fraud by father after considering mother’s argument. The children resided with their father in NC for over one year. “[F]raud is a misrepresentation of a past or existing fact.” 280 N.C. App. at 461. Father did not misrepresent his actual residence. NC was the home state. “The UCCJEA does not base jurisdiction on where a parent plans or intends to reside in the future, but on the actual residence. Id.
    • Assuming there was fraud, exceptions in G.S. 50A-208 apply. Under -208(a)(1), the parents acquiesced to jurisdiction in NC by registering the NY order and filing motions in NC. Under -208(a)(2), the NY court determined NC was the more appropriate forum, so even if father had engaged in unjustifiable conduct, NC had jurisdiction.
Subject Matter Jurisdiction
Modification Jurisdiction
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