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2007-UP-276 - Green v. Morris

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Henry Green, Appellant,

v.

Tracy Godfrey Morris, Respondent.


Appeal From Sumter County
 George M. McFaddin, Jr., Family Court Judge


Unpublished Opinion No. 2007-UP-276
Submitted April 2, 2007 – Filed June 6, 2007


AFFIRMED AS MODIFIED


James H. Babb, of Sumter, for Appellant.

Warren Stephen Curtis, of Sumter, for Respondent.

PER CURIAM: Henry Green (Father) appeals the family court’s determination that it lacked jurisdiction to modify a South Carolina custody order.  Father further appeals the family court’s decision that even if it had jurisdiction, it would decline to exercise it.  We affirm as modified.

FACTS

On September 15, 1998, Tracy Morris (Mother) and Father had a son, Mark Austin Green, as a result of their nonmarital union.  In 1999, the parties separated.  On August 7, 2000, the Sumter County family court issued the original custody, support, and visitation order.  The parties received joint custody with Mother as the primary custodial parent.  In 2002, the child moved with Mother to Georgia.  Mother and Father appeared before the family court several times on matters regarding the child.  In 2004, Mother married an active member of the United States Marine Corps who was stationed in Arizona, and the family court entered a consent order allowing Mother to take the child with her to Arizona.

On June 5, 2005, the child arrived in South Carolina for his summer visitation with Father.  The child was scheduled to return to Arizona on August 6, 2005.  Upon arriving in South Carolina for summer visitation with Father, the child began relaying incidents of violence including corporal punishment perpetrated by Mother’s husband.  Based on those allegations, on July 29, 2005, Father filed an action in the family court seeking modification of the custody order.  On August 3, 2005, Mother called to speak to the child, and Father informed her he would not be returning the child on August 6 as scheduled.  On August 11, 2005, Mother filed a response to Father’s complaint asserting in part that the South Carolina family court lacked jurisdiction over the matter.  

On March 16, 2006, the family court issued an order dismissing Father’s action finding it did not have jurisdiction because Arizona was now the child’s home state, and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (2000), mandates that a court can decide child custody matters only if it is the child’s home state or has been the child’s home state in the last six months.  Further, the family court determined even if it did have jurisdiction, it would decline to exercise it because South Carolina is an inconvenient forum to make a custody decision in the case.  This appeal followed.

STANDARD OF REVIEW

On appeal from a family court order, this Court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence.  E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992).  However, this broad scope of review does not require this Court to disregard the family court’s findings.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  “The family court in its discretion may enter an order declining to exercise jurisdiction based on a finding that it is an inconvenient forum, which this Court will uphold absent an abuse of that discretion.”  Charest v. Charest, 329 S.C. 511, 516, 495 S.E.2d 784, 786 (Ct. App. 1997).

LAW/ANALYSIS

Father argues the family court erred in finding it lacked jurisdiction to modify the custody order.  We agree.

The PKPA and the Uniform Child Custody Jurisdiction Act (UCCJA), sections 20-7-782 to -830 of the South Carolina Code (1976), “govern the subject matter jurisdiction of state courts to rule in interstate custody disputes.  Because the PKPA is federal legislation, its provisions will govern any conflict between it and the UCCJA . . . .”  Widdicombe v. Tucker-Cales, 366 S.C. 75, 86, 620 S.E.2d 333, 339 (Ct. App. 2005) (petition for cert. filed) (citations omitted).  One of the UCCJA’s purposes is to avoid conflicting custody decrees between states.  Id. at 87, 620 S.E.2d at 339; see also S.C. Code Ann. § 20-7-784 (1976) (Other purposes of the UCCJA include avoiding relitigation of custody decisions of other states if feasible and facilitating the enforcement of custody decrees of other states.).

The family court found it did not have jurisdiction because the PKPA provides that a child custody or visitation determination is consistent with the PKPA only if the court has jurisdiction under the law of the state and one of the provided conditions is met.  The condition the family court relied on was:

such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State . . . .

28 U.S.C. § 1738A(c)(2)(A) (1988).  However, the family court interpreted the statute as providing that only the home state has jurisdiction.  This is contrary to a reading of the plain language of the statute, which provides that a state being the child’s home state is only one of the reasons a court can exercise jurisdiction.  Another reason a state may maintain jurisdiction under the PKPA is if “the court has continuing jurisdiction pursuant to subsection (d) of this section.” 28 U.S.C. § 1738A(c)(2)(E) (1988).  Subsection (d) provides,

The jurisdiction of a court of a State which has made a child custody or visitation 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.

28 U.S.C. § 1738A(d) (1988).  Accordingly, if South Carolina issues the original custody decree in accordance with the PKPA and one parent still resides in South Carolina, then South Carolina has jurisdiction if it retains it under the UCCJA.  

The PKPA mandates three criteria for a court to retain continuing jurisdiction: (1) that the original custody determination was entered consistently with the provisions of the PKPA; (2) that the court maintain jurisdiction under its own state law, in South Carolina, the UCCJA; and (3) that the state remains the residence of the child or of any contestant.  Widdicombe, 366 S.C. at 86, 620 S.E.2d at 339.  At the time of the original custody decree, Mother, Father, and the child were all residents of South Carolina, where the court issued the original decree.  Accordingly, South Carolina meets the first requirement for retaining jurisdiction because the original decree was entered consistently with the provisions of the PKPA.

The second requirement under the PKPA is that South Carolina retain jurisdiction under its laws.  We give great deference to the jurisdiction of the state that originally ruled on a custody matter.  Widdicombe, 366 S.C. at 87, 620 S.E.2d at 339-40.  “Courts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law.”  Knoth v. Knoth, 297 S.C. 460, 463, 377 S.E.2d 340, 342 (1989). 

Although more than one state may meet the jurisdictional requirements under the UCCJA, once a custody decree has been entered, the continuing jurisdiction of the decree state is exclusive.  This jurisdiction continues if one parent continues to reside in the decree state and substantial evidence remains there, even though another state has become the child’s home state. 

Charest v. Charest, 329 S.C. 511, 518, 495 S.E.2d 784, 788 (Ct. App. 1997) (citations omitted).  This jurisdiction is not necessarily affected by a child’s residence in another state.  Knoth, 297 S.C. at 464, 377 S.E.2d at 342-43.  If the prior state still has sufficient contact with the case to satisfy the jurisdictional requirements, all petitions for modification must be addressed to that state.  Id. at 463, 377 S.E.2d at 342.  The court’s previous consideration of the case is one factor in favor of its continued jurisdiction.  Id.  When a state attempts to exercise continuing jurisdiction over a custody decree on which it has previously ruled, we broadly interpret the jurisdictional requirements in the UCCJA.  Widdicombe, 366 S.C. at 87, 620 S.E.2d at 340.

In Knoth, an Illinois family court modified custody in a matter a South Carolina family court had previously decided on numerous occasions.  297 S.C. at 461, 377 S.E.2d at 341.  The South Carolina Supreme Court found because the mother remained in South Carolina and the child still had considerable contacts with the state, South Carolina continued to have exclusive jurisdiction over the matter, and the Illinois family court improperly assumed jurisdiction.  Id. at 464, 377 S.E.2d at 342. 

In Charest, a case analogous to the instant case, this Court found “[a]s the decree state, South Carolina clearly had continuing jurisdiction . . . based on the fact that at least one parent, the father, continued to reside here and the children visited him and remained in contact with him in South Carolina.”  329 S.C. at 518-19, 495 S.E.2d at 788.  In the present case, because Father still resided in South Carolina and the child visited Father in South Carolina, South Carolina meets the second requirement of the PKPA because it continued to have jurisdiction under this state’s laws. 

The third prong of the PKPA analysis provides that one party must continue to reside in the state.  Because Father continued to reside in South Carolina, the third criterion of the PKPA is satisfied. Accordingly, South Carolina meets all three requirements mandated by the PKPA for it to have continuing jurisdiction over the matter, and the family court erred in finding it lacked jurisdiction.

Father contends the family court erred in declining to exercise jurisdiction.  We disagree.

The family court may decline to exercise jurisdiction if South Carolina is an inconvenient forum to make a custody determination under the circumstances of the case and a court of another state is a more appropriate forum.  S.C. Code Ann. § 20-7-796(a) (1976).  When determining if South Carolina is an inconvenient forum, the family court should consider if another state’s assumption of jurisdiction is in the child’s interest.  § 20-7-796(c).  The family court should take into account the following factors in making its decision:

(1) if another state is or recently was the child’s home state;

(2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants;

(3) if substantial evidence concerning the child’s present or future care, protection, training and personal relationships are more readily available in another state;

(4) if the parties have agreed on another forum which is no less appropriate;

(5) if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in § 20-7-784.

Id.  The family court may also consider other factors it deems relevant.  Id.

In McGee v. McGee, 287 S.C. 644, 647, 340 S.E.2d 571, 573 (Ct. App. 1986), we found the family court did not abuse its discretion in determining Georgia, rather than South Carolina, was the more appropriate forum for a custody action.  Although the parents were divorced in South Carolina and the father continued to live here, the mother and the couple’s child had lived in Georgia for five years.  Id. at 646, 340 S.E.2d at 573.  The child had attended school in Georgia for three years, all of his recent medical records were in Georgia, and all of his extracurricular activities were centered in Georgia.  Id. at 647, 340 S.E.2d at 573.  Therefore, those people most familiar with the child’s current condition, such as teachers, friends, and neighbors, were in Georgia.  Id.

Similarly, in Charest, we found the family court did not abuse its discretion in declining to exercise its jurisdiction in order for a change of custody action to be instituted in New York.  329 S.C. at 520, 495 S.E.2d at 789.  Although the father still resided in South Carolina, the children had resided in New York with their mother for five years before the action was instituted.  Id.  Accordingly, New York had the most significant connection to the children, and the witnesses who could testify about the children’s daily activities and current condition were located there.  Id.  The children were enrolled in school, attended church, and spent most of their time in New York.  Id.  Further, any evidence of the children’s alleged mistreatment would necessarily come from New York.  Id.

          In the present case, the child had lived in Arizona for over a year before Father filed this action.  Father alleges abuse at the hands of Mother’s husband who lived in Arizona with the child.  Accordingly, any witnesses to testify about the interaction between the child and Mother’s husband would be in Arizona.  Because the child has resided in Arizona for over a year, it is his home state, it has more substantial evidence concerning the child’s care, and it has a closer connection to the child than South Carolina as the child has not lived here since 2002.  Therefore, we find the family court did not abuse its discretion in declining to exercise jurisdiction over the matter.[1]

CONCLUSION

Accordingly, because South Carolina meets the three criteria for retaining jurisdiction under the PKPA, the family court erred in finding it did not have jurisdiction to modify the custody decree.  However, the family court did not abuse its discretion in finding that even if it had jurisdiction, it would decline to exercise it because South Carolina was an inconvenient forum.  Therefore, the family court’s order is

AFFIRMED AS MODIFIED.[2]

HUFF, BEATTY, and WILLIAMS, JJ., concur.


[1] Additionally, Father maintains the family court deprived him of his procedural and substantive due process rights by executing an order granting the “de facto permanent relief” of a dismissal for lack of jurisdiction.  The South Carolina Supreme Court has established a firm policy of declining to rule on constitutional issues unless such a ruling is required.  Fairway Ford, Inc. v. County of Greenville, 324 S.C. 84, 86, 476 S.E.2d 490, 491 (1996).  Father’s due process claims seemingly center around the fact that the family court erred in finding it lacked jurisdiction.  Because we determine the family court erred in finding it lacked jurisdiction, we find it unnecessary to address whether Father was deprived of his due process rights. 

[2] We decide this case without oral argument pursuant to Rule 215, SCACR.