# FILED

February 4, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 1999 SESSION

MELISSA (BUCKLEY) ) Shelby Chancery No. 109146-3 HATCHELL, ) ) Petitioner/Appell

ant ) Appeal No. 02A01-9801 -CV00008 ) 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 Harri son 1080 Brookfield, Sui

te 100 Memphis, TN 38119 For the Appellee: Dorothy J. Pounders 1770 Kirby Parkwa

y, Suite 100 Memphis, TN 38138

AFFIRMED

WILLIAM H. INMAN, SENIOR JUDGE CONCUR:
W. FRANK CRAWFORD, JUDGE DAVID R. FARMER, JUDGE2 

### O P I N IO N These parties we

re divorced in Arka

nsas on April 17, 1996.

A Property Settlement Agreement was incorporated in the judgment which awarded custody of two children to Mother. In August, 1996, Mot

her moved to Tennes see with the childr en. In the interim, the Ark

ansas judgment was m

odified, on Octobe

r 30, 1996, by awarding standard visitation to Father, who remains a res

ident of Arkansas. The modification w

as not pleasing to Mothe

r, whose failure

to obey the Arkansas judgment r

esulted in a Petition

for Contempt being f

iled against her in the Chancery Court

of Crittendon County.She appeared and f iled a motion to dismiss, alleging tha

t Arkansas was w

ithout jurisdiction, s

ince she and the children had resided in Tennessee more than six months. The Arkansas court disagreed, holding th

at it had continuing jur

isdiction. On March 13, 1997,

Mother filed a Pet

ition to Enroll Fore

ign Judgment in the Chancery Cour

t of Shelby County, T

ennessee, which i

ncluded a motion to modify it by termina

tion of visitation. T

his petition was ame

nded the following day to alle

ge that the children had suffered physica l abuse, and sought injunct ive relief, not otherwi se specified. Father moved to dism iss, alleging that Tennessee lacked juri sdiction. He denied the allegatio

ns of abuse. The C

hancellor agreed,

finding that jurisdict

ion continued in Arkansa

s. The Petition to E

nroll and Modify was thereupon dismissed. Mother appeals, a

nd presents for revi

ew the propriety of

the dismissal of her petition. Our review of the

findings of fact ma

de by the trial Court

is de novo upon the record of the tr

ial Court, accompanied by a presumption of the correctnes s1 Under the PKPA, a h ome state is “the Sta

te in which, immedia

tely preceding th

e time involved, the child

lived with his pare

nts, a parent, or a

person acting as p

arent, for at le

ast six consecutive months . . .” 28 U.S.C.A. § 1738A(b)(4). 3 of the finding, unless the preponderance of the evidence is otherwise. T ENN
. R. A PP
. P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Te nn. 1996). Young v. Smith, 939 S.W.2d 576 (T enn. App. 1996) is d

ispositive of this case. The parti

es were divorced in Arkansas. Mothe r 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 whic h require this Court to refer to the Uniform Child Custo dy Juris diction Act (UCCJA) o f 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 Pa rental Kidnaping Pr

evention Act (PK

PA), 28 U.S. C.A. § 17 38 A ( We st1994). Where provisions of a state’s UCCJA are in conflict with the PKP A, the PKPA preempts the law of the individual state. Brown v. Brown, 847 S.W.2d 496 (Ten n. 1993); Atkinsv. Atkins, 308 Ark. 1, 823 S.W.2d 816 (Ark. 1992).

. . . . . Although Tennessee is

now the‘home state’ 1 of the minor child, the PKPAprovides that a state which makes an i

nitial custody d etermination

retains jurisdictio

n to modify that decisi

on if ‘the requ irement

of subsection (c)(1) of this section continues to be m e t and such State remains the residence o f the c hild 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 Stateis consistent with t he provisions of this sect ion only if - ( 1) such court has jurisdi ction under the law of such State . . .4 28 U.S.C.A. § 1738(A)(c). T hus, under subsection (c), this Court is required to refer to Arka nsas’s jurisdictiona

l requirements to determ ine whether or not Ar kansas continues to hav

e jurisdiction under its own law. Arkansas’s jurisdictional statut e provides that Arkansas cour ts have jurisdiction to modify a child cust ody determination if, inter alia: Itis in the best interes

t of the child that a co urt of this stat e ass ume jurisdiction bec ause (i) the child a nd his parents, or the child and at least one (1) contestant, have asignificant connect

ion wit h this state and (ii) t

here is available in this sta

te substantial evidence

concerning the child’s present or future care , protection, tra ining and personal relati

onships. 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 [chi

ld’s] “home state”

before cons ider ing the “significant

connection” test, A

rkansas’s laws al

low the courts

of that state to assert jurisdiction based on either home state status or on the basis of a significant connect ion of thechild and

one contestant to the state. Underthe PKPA, this c

ourt is required to de

fer to the jurisdic

tiona l st andards established by the Ar kansas courts. We

find tha t unde r Arkansas law, that state h as con ti nuing jurisdiction because [Jerry Buckley] a contestant, is a r esident of Arkansas and by virtue of that fact has significant connections with that state an d . . . the children were born there and continue to visit Arkansas on a regular basis. Under Arkansas law, [such] visits constitu te a significant conn

ection withthat state. S ee, e.g. Brown v. Brown, 20 Ark. App. 251, 663 S.W.2d 190, 191 (1984) (finding that children had ‘signifi ca nt connection’ under § 9-13-203(a ) (2) [former Ar k. Code Ann. § 34- 2703(a)(2)] with Arkansas based on the fact that childr

en visited their fa ther in Ar kansas for ‘reasonab le weekend visitati ons . . . and two weeks . . . during the sum mer’); O’Da niel v. Wal

ker, 14 Ark. App. 210, 686 S.W.2d 805-07 ( 1985) (fin di ng that Arkansas had continuing jurisdiction to modify a custody decree be

cause the children, who resided with their mother in Tennesse

e but visited their father in Arkansas, whe

re he was a resident, h ad a ‘significant connection’ with Arkansas as r equired by § 9-13-203(

a)(2) [form er Ark. Code An n. § 3 4-2703(a)(2)] ). Furthermore, there is evidence in the instant case tha

t the Arkansas cour

ts have had numerous dealings with the parties an d thus have ‘substantia l evid e nce concerning

the child’s present or

future care, pr

otection, training,

and personal relationships,’ as required by the st atute. Ark. Cod

e Ann. § 9-13-203(a)(2). Although Arkansas law controls in the case at bar, the example cited by the Tennessee Supr

eme Court in State ex

rel. Cooper v. H

amilton5 is instructive in explai

ning the c oncept of continuing jur isdiction under the PKPA: A typical example is t he case of the couple who are divorced in State A, their matrimonial home state , and whose children are awa rded t o the w ife, subject to visitation rights of the husband.Wife and child ren move to State B, with o

r without permission of the

court to remove the childre

n. State A has cont inuing juri sdicti on and the courts in Sta te B may not hear the wife’s petition to make

her the sole custodian, e

liminate visitation rights, or

make anyother modification o f the decree, even though State B has in the meantime become the ‘home state’ under

secti on 3 [of the UCCJA]. T he jurisdiction

of State A continues and is exclusive as lo ng as the husband lives in Sta te A unless he loses contact withthe children, for examp le, b y not using his visitation privileges for three years. 688 S.W.2d 821, 826 (Tenn. 1985). Becaus e Ark ansas has continuing jur isdiction under the PK

PA, the courts of this state may not assert jurisdiction to affect the Arkansas custody determinatio

n. The PKPA pr

ovides: (f) A court of a State

may modify a

determination of

the custody of the same chil d made by a court of another State, if - (1) it has jurisdicti

on to make such a child custody determinatio

n; and (2) the court of

the ot her State no longer has jurisdiction, or it h as declined to exercise suc h j urisdiction to modify such determination. (g) A court of the Sta

te shall not exercise jurisdi ction in any proceeding for

a custodydetermination commenced during the pendency of a pro ceeding in a c ourt of anotherState where such court of that oth

er State is exercising

jurisdiction

consistently

with the provisions of this section to make

a custody determina

tion. 28 U.S.C.A. § 1738A. Young v. Smith, 939 S.W.2d 576 (Tenn. App. 1996). Arkansas has not declined to exe rcise jurisdiction i

n this case, and the Courts of Tennesse

e are therefore

without subject matt

er jurisdiction. The judgment is aff

irmed at the costs of

the appellant.6 _______________________________ William H. Inma

n, Senior Judge CONCUR:

_______________________________ W. Frank Craw

ford, Judge

_______________________________ David R. Farme

r, JudgeIN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 1999 SESSION

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

MELISSA (BUCKLEY), ) HATCHELL, ) Shelby Chancery No. 109146-3 ) Respondent/Appella

nt )

) Appeal No. 02A

01-9801-CV-00008 v. ) ) JERRY BUCKLEY, ) ) Petitioner/Appellee )

__________________________________ ____________________________ 

### J U D G M E N T

__________________________________ ____________________________ This cause came on to be regularly heard an d considered by this Cour t, and for the reasons stated i n the Opinion of thi s Court filed this d ate, it is ORDERED that: 1. The judgment of the trial court is a ffirmed. 2. Costs of this appeal are taxed agai nst the a ppellant, Melissa ( Buckley) Hatchell, for w

hich execution may iss

ue if necessary.

____________________________ INMAN, S.J.

__________________________ CRAWFORD, J.

____________________________ FARMER, J.