Young v. Smith

939 S.W.2d 576, 1996 Tenn. App. LEXIS 467
CourtCourt of Appeals of Tennessee
DecidedAugust 14, 1996
StatusPublished
Cited by2 cases

This text of 939 S.W.2d 576 (Young v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Young v. Smith, 939 S.W.2d 576, 1996 Tenn. App. LEXIS 467 (Tenn. Ct. App. 1996).

Opinion

CRAWFORD, Presiding Judge, Western Section.

This case involves an interstate custody dispute. Plaintiff-Appellant, Michelle Young Smith (Appellant), appeals the decision of the Shelby County Chancery Court dismissing her petition for lack of subject matter jurisdiction and lack of personal jurisdiction over Rodney Smith, Defendant-Appellee (Appel-lee).

The parties hereto were married in October, 1991, in Arkansas and divorced by decree of the chancery court of Randolph County, Arkansas, entered December 23, 1992. Prior to the parties’ marriage, appellant had a child, Dustin Andrew Smith, and in the divorce proceedings, blood test results proved that the appellee was not the biological father of the child. Notwithstanding the lack of paternity, appellee sought and was granted certain visitation privileges, which produced the present controversy.

[577]*577In June, 1993, the Arkansas court modified appellee’s visitation rights and in January, 1994, in connection with a contempt citation against appellant, entered an agreed order concerning the details of the visitation arrangements.

Appellant’s petition filed January 3, 1995, seeks to enroll and enforce the Arkansas decrees dealing with visitation rights granted to the appellee. Filing and enforcement of foreign judgments is provided for by T.C.A. § 26-6-101 et seq. (1980). Enforcement of such judgments concerning child visitation is appropriate pursuant to 28 U.S.C. § 1738 A(a) (1994). However, it appears that the parties and the trial court treated the petition as seeking a modification of the prior Arkansas decrees to eliminate appellee’s visitation with appellant’s minor child. In the interest of judicial economy, we will consider the case in the same light.

Although the petition does not state when appellant became a resident of Tennessee with her child, the parties concede in their briefs that petitioner and the child were residents of Tennessee at least six months before the petition was filed. In response to appellant’s petition, appellee filed a motion to dismiss attacking the court’s subject matter jurisdiction and also asserted that the court had no personal jurisdiction over him. The trial court dismissed appellant’s petition, and appellant has appealed presenting a single issue for review, as stated in her brief:

Whether the trial court erred in dismissing Plaintiffs Petition for Registration, Enrollment, and Enforcement of Final Decree where Plaintiff and minor child have been residents of Memphis, Shelby County, Tennessee, for six months preceding the filing of the Petition, and at the time of the filing of the Petition there was no action pending in a foreign forum.

As previously noted, the parties have treated the petition in the instant case as a petition to modify the previous Arkansas decrees concerning visitation with the minor child. Thus, the real question for the Court, as presented by the briefs of the parties, is whether the Tennessee court or the Arkansas court under the conceded facts has jurisdiction to consider the visitation issue.

Child custody cases present jurisdictional issues which require this Court to refer to the Uniform Child Custody Jurisdictional 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 Kidnapping 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 (1992).

The parties do not dispute that Arkansas had jurisdiction to render the initial child custody order at the time of divorce.1 This Court must determine whether Arkansas retains jurisdiction to consider a request to modify that decree.

Although Tennessee is now the “home state”2 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 ...

28 U.S.C.A. § 1738 A(c). Thus, under subsection (c), this Court is required to refer to Arkansas’s jurisdictional requirements to de[578]*578termine 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 Dustin’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, one, Rodney Smith, a contestant, is a resident of Arkansas and by virtue of that fact has significant connections with that state and two, Dustin Smith, the child, was born there and continues to visit Arkansas on a regular basis. Under Arkansas law, Dustin’s visits constitute a significant connection with that state. See, e.g. Brown v. Brown, 10 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, 806-07 (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) ]).

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Bluebook (online)
939 S.W.2d 576, 1996 Tenn. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-smith-tennctapp-1996.