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.