IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

FOR PUBLICATION LORRAINE BURTON SPIERS ) Filed: May 24, 1999 MARCUS, ) ) Plaintiff/Appellee, ) SHELBY COU NTY ) v. ) Hon. Floyd Peete ) Chancellor TRENT WRIGHT MARCUS, ) ) Supreme Court Defendant/Appellant. ) No. 02S01-9804-CH-00036

FOR APPELLANT FOR APPELLEE Daniel Loyd Taylor Caren B. Nichol Craig B. Flood, II Memphis, TN Memphis, TN



## O P I N I O N

COURT OF APPEALS REVERSED, TRIALCOURTJUDGMENT REINSTATED. DROWOTA, J.-2- In this c as e, we consider whethe r the Chancery Court of Shelby County abused its discretion in declining jurisdiction of a suit for the modification of child custody. Apparently finding that the plaintiff was

barred from filing suit i n Tennessee due to her violation of previous child custody orders entered in North C arolina, the tr ial court dism issed the plaintif f’s comp laint. Th e Court of Appeals reve rsed

. Because we find that the trial cou rt acted within its discretion as set forth i n Tenn. Code Ann. § 36-6-209(b) (1996), we reverse the Cour t of Appeals and reinstate the trial court’s order dismissing the plaintiff’s complaint.

PROCEDURAL HISTORY Plaintiff/AppelleeLorraine Burton Spiers Marc us (“the Wife”) and Defendant/Appellant

Trent Wright Marcus (“the Husband”) were marr

ied in Memphis in 1990. Sh ortly t hereafter, the parties moved to Winston-Salem, North Carolina, where the H usband was attending medical school. The parties’ only child, Natalie Spiers Marcus, was born in November of 1991. The parties separated in the Fall of 1992.

In response to a petition filed by the Husband seeking custody of the child and
a counterpetition filedby t he Wife seeking custody, child support,and alimony, a North C arolina court entered an order on March 16,1993. In this order, the Nor th Carolina court found: That both the [Husband] and the [Wife] are fit and proper pa rents to have the joint legal care, cus tody, and control of

the minor child. That it would be in the best interests of the minor child that her pr imary physical care, custody, and contr ol be awarded to

the [Wife] subject to secondary physical custody with the [Hu sband] as set out herein.1 This relocation was ackno wledged by the North Carolina court in its March 1993 orde r: That th e [Wife] has testi fied and i ndicated t hat she is i n the process of mov ing t o Memp his, Tenne ssee along with the minor chi ld . . . , and t hat the reasonfor her relocati on to Memphis, Tennessee is so that she can secure employment, since the employment conditions are more favorable i n Memphis, Tennessee, than i n WinstonSalem , North C arolina. -3- The court set forth a visit ation schedule and awarded al imony and child support to the Wife.

Around January of 1993, shortly before this North Caroli na order was entered, the Wife and the child relocated to Memphis. 1 In July of 1993, the Husband mov ed to Arkansas, where he filed a suit for divorce, div ision ofproperty, and a finding that neither party was entitled

to alimony. An Arkansas court grant ed the Wife’s motion to dismiss all of

the Husband’s requests for relief except for divor ce. The Arkansas court scheduled a hearing on the complaint for divorce in December of 1994.

While these proceedings wer e occurringin Arkansas, the Husband also fil ed
a petition in NorthCarolina to alter the March 1993 order. Following a hearing on this motion in which both parties were represented by c ounsel, the North Caroli na court,
on September 30, 1993, entered an order setting forth a more specifi c visitation schedule. The orde r stated that al l other aspects of t he Marc h 1993 order would remain in effect and that “this cause is retained f or further orders of this Court.”

In response to a show cause motion filed by the Husband, the NorthCarolina court, on November

22, 1994, entered an order finding that the Wife was in civil and
cr iminal con tempt for failure to adhere to the v isitation schedule set forth in the September

1993 order. The North Carol ina c ourt ordere d that the Wife be-4-

incarcerated until she compliedand that she pay for the Husband’s attorney’s fees. Although the Wife was not present during thi s hearing, she was represented by counsel. Interestingly, another order was also ente red by a different North Carolina judge on the same date, November 22, 1994.T he order stated that it was in response to the Husband’s “Motion for Rev iew, re questing, among other things, modification of [the Husband’s] secon dary physicalcustody and termination of [the Wife’s] ali mony.” The order further stated that the W ife “appeared in Court represented by her attorneys.” This order made no reference to the contempt order
or any allegation that the Wife had failed to comply withthe visitation schedul e. The North Carolina court simply reaffirmed the existing j oint custody arrangement, increased the Husband’s alimony and child support obligati on, and directed that he pay the Wife’s attorney’s fees. The order noted that although both pa rties were living out-of-state, they were residents of North Carolina six months pr ior to thefiling of the action.

The record i ncludes an additional contempt or der entered by the North Carolina court on December 16, 1994. Although the Wife was not present, she was represented by counsel at the hearing. Asserting that it retained jurisdi ction over the matter, the Nor

th Caro lina co urt fo un d that the Wife had “willfully and intentionally
v iolat ed” the September 30, 1993 order rela ting to the visitati on schedule and the November

22, 1994 contempt order. The cour t again found the

Wife to be in civil and criminal contempt, ordered that she be inc arcerated , and directed that she pay th e Husband’s attorney’s fees.2 The com plaint also s ought to e njoin the H usban d from perm itting mem bers of th e oppo site sex fro m sta ying overnig ht with him when th e child wa s prese nt. -5- A few days later, on December 21, 1994, the Arkansas court held a heari ng regardingth e H usband’s petition for divorce. After finding that the Husban d was a resident of Arkansasand, thus, that the court had jurisdiction, the cour t granted the Husband a divorce “on the gr ound of general indignities ,” but refused to make a ruling “on any other matter.” Thi s order was entered Janua ry 11, 1995.

Meanwhile, on December 19, 1994, the Wife filed a complaint for divorce and injuncti ve reliefin the Chancery Court of Shelby County, Tennessee. The complaint soughta divorce, a division of property, an award of child support and alimony , and
a fi nding that the Wife was entitled to custody of Natalie. 2 The Wife’s compla in t includes the following

statement:
Plainti ff is aware of, and calls this court’s attention to, a cus tody order which was entered on March 16, 1993, by the General Court of Justice, District CourtDivision, F orsyth Cou nty, North Carolina, Docke t number 92 CVD 6246. TheOrder awardedlegal custody of the parties’ minor chi ld jo intly to the Plaintiff and Defendant.It further awarded primaryphysical care, custody and cont rol of th e minor c hild to Plainti

ff and secondary physical custody to the Defendant. No divorce action is pending in North Car olina. Plainti ff avers that the Nort h Carolina Court has conti nued to exercise j ur isdictio n over the c ustody iss ue altho ugh it doe s not have the authority to do so. Plai ntiff further avers that pursuant to Tennessee Code Annot at ed section 36-6-207(a) and the Federal Parental Kidnapping Prevention A ct, U.S.C. 1738A, the North Carolina Court is not “exercisin g jurisdiction subst antially in conformity

with this part” in that (1) neithe r of the parties is a domicil iary of the state of North Carolina, (2) neither party continues to reside in North Carolina, as the Plaintiff left the state on December

30, 1992 and the Defendant left the state on July 1, 1993, and (3) Tennessee is the “home stat e” of the parties’ child.3 The petit ion only references t he November 22, 1994 order increasi ng the Husband’s al imony and child suppor

t obli gations and not

the Nov emb er 22, 19 94 orde r finding the W ife to be in con temp t.

-6- On April 1 8, 1995, the Wifefiled in the Chancery Co urt a “Petition to Enroll and Modify Foreign Decrees and for I njunctive Relief.” Att ached as exhibits to

the petition
were th e North Carolina court o rders dated March 16, 1993, Sep tember 30, 1993, and November 22, 1994, 3 as well as the Arkans as court orders dated Nov ember 10, 1993 and January 11, 1995. The petition alleged that these five orders “are entitled to full faith and credit in the courts of the State of Tennessee.”The petition further alleged that a materia l chan ge of circumstances had occur red since the entry of these out-of-state orders so as to warrant the Wife being awarded sole custody of the child.

In response to a motion to dismiss filed by the Husband, the Chancery Court of Shelby County held a hea ring on this matter on August 31, 1 995. At the hearing, counsel for the Husband cited the contempt or ders entered b y th e North Carolina court and contended that the Shelby Co unty trial court shoul d ref use to e xercise jurisdiction due to the Wif e’s “uncle an hands.” The Wife responded that the contemptorders were void because North Carolina did not ha ve jurisdiction over the out-of-state parties. On November 14,1995, the Chancery Court of Shelby County granted the Husband’s motion to dismiss in a non-specific order. Subsequently, the Wife filed a motion to alter or amend, which w as denied by the trial c ourt.

Whil e this action was being appealed to the Tennessee Court of Appea ls , another order was entered by

the North Carolina

court on January 9, 1997 pursuant4 The Husband fileda copy of t his order as part of a motion for consideration of post-j udgment facts, wh ich we gr ant.

5 Among reasons arti culated by the court i nclude the f inding that “t he [Wife] has demonstrated a pattern of

violations of th e decrees of this Court adversely affect ing the r elati onship be tween t he minor child and her father.Specifica lly , the [Wife] has denied access of t he m inor chi ld to t he [Husband] and of the [H usb and ] to the min or ch ild on a ppro xim ately h alf of the [Husband’ s] scheduled visits.”
6 The Wife also fil ed a motion for consi deration of post-ju dgm ent facts in which she states that an August 27, 1997 No rth Carolina ord er exists requiring th e W ife to have superv ised visitation with Natalie.Although a copy of this a lleged or

der is not

attached, the Hus band do es not dis pute its existence. -7- to a change of custody motion filed by the Husband. 4 Prior to a hear ing on the matter, the court granteda motion to withdraw filed by counsel for the Wife and signed by the Wife. The W ife did not appear at the hearing on this motion and, thus, neither the Wif e nor her counsel were present. The order refers to the litigation historyas well as the Chancer y Court of

Shelby County’s action “deferring this matter to the North Caroli na C ourt which has retained jurisdiction over the parties’ minor child, Natalie.” Finding that a “substantial and material change of circums tances justifyinga modi fica tion” of the North Carolina court’s previous or

ders exists, the North Carolina court aw arded custody of the child to the Husband. 5 The court also
o r dered that the Husband’s child su pport obligations should be stayed. Despite insistingthat the North Carolina c ou rt’s actions were void, the Wife agreed to turn over physical cus

tody of the child to the Husband

. 6

On July 1, 1997, the Tennessee Court of Appeals reversed the Chancery Court of Shelby County’s dismissal of the Wif e’s complaint. Despit e lab eling the Wife’s defiance of the North Carolina order s as “clearly repr

ehensible,”the Court of Appeals found as follows: But she cannot now be repelled because of the offense she offered to th e Nort h Carolina Court, see , Haynes v. Haynes , 904 S.W.2d 118-8- (Tenn. Ct. App. 1995), since ou r primary concern is for the best interestsof the child. It is a t t his juncture that we emphas ize that the child and Wife have been residentsof Tennessee since January 1993, and Husband a residen t of Arka nsas sinc e July, 1993. North Carolina has no vested jurisdicti onal interest, and neither Wife nor Husband nor the child hasa 'significant connection' with that State. N.C. Gen. Stat. 50 A-3(2) (1989). Moreov er, the custody

of t he child is not an issue before us; rather, whether or not the Nort h Ca rolina Orders may be filed in Tennessee is the sole iss ue. State ex rel. Cooper v. Hamilton , 688 S .W.2d 821 (Tenn.1985) is the authority for the conclusion that where all person s involved h ave moved away, jurisd iction to modify custodial decrees wil l shift elsewhere. Given the record before us we are not aware of any reason why the North Carolina Orders are not entitled to full faith and credit in Tennessee, T.C.A. 36-6-214; Brown v. Bro wn , 847 S.W.2d 496 (Tenn. 1993), and thus eligible for filing in the Chancery Court of Shelby County, Tennessee pursuant to T.C .A. 36-6-216. The sole purpose of this legal exercise by the Wife appears to be an effort to salva ge the issue of permanent alimony, since the div orce judgment rendered by the Arkansas Court has become final, and t he issue ofcustody may be litigated in the child's home state in accordance with the laws of Ten nessee. As to the efficacy of this stratagem we express no opinion and offer no critique. Suffice to state that a judgm ent whi ch canno t be enfo r ced is worthless, and that the North Carolina judgments, w hen filed in Tennessee at the behest of Wife are amenable to enforcement ab initio.

DISCUSSION On appeal, the Husbandcontends that the Chancery Court of Shelby County acted within its discr

etion in dismissingthe Wife’s complaint. Adopted by the General Assembly in 1979, Tennessee’s version of the Uniform Child Custody J urisdictional Act (“ UCC JA”), Tenn. Code Ann. §§ 36-6-201 et seq. (1996 & Supp. 1998), when construe d in conjunction with the federal Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C.A. §§ 1738A et seq. (1994 & Supp. 1999), is designedto avoid7 For a thorou gh discu ssion of the objec tive of the U CCJ A and its inte rplay with the PKPA , see Brown v. Brown , 847 S.W.2d 496, 498-503 ( Tenn. 1993); Ki mber ly H. Harris, N ote, Inter state Child CustodyDispute s: A Practical Guide for Tennessee Att orneys on t he Law of Jurisdi ction , 24 Me m. St. U. L. Rev. 533 (1994).

8 "H ome state ” is de fined as “th e sta te in w hich the c hild im me diate ly prec eding the tim e involv ed lived with such chi ld's par ents, a parent

or a person acti ng as parent , for at leas t six (6) consecutive months, and in the case of a child l ess than six (6) months old the state in whic h the child livedfrom birth with any of t he persons mentioned. Periods of temporary absen ce of any of the named persons are coun ted as part of the six (6) months or other period.” Ten n. Code Ann. § 36-6-20 2(5).

-9- jurisdictionalcontroversies betw een other states when consi dering child custody disputes. See Tenn. Code Ann. § 36-6-201(a) (1996). 7

Under Ten nessee’s version of the UCCJA, a trial court may exercise jurisdiction to enforce an initial child custody decree or modify an existing child custody decree in the event th at Tennessee “is the home st ate of the chil d at the time of commencement of the proceeding.” Tenn.Code Ann. § 36-6-203(a)(1)(A) (1996). There is little dispute that at the time the order was entered by the Chancery Court of Shelby County in Nov ember of 1995, Tennessee was the chil d’s “home state,” as defined by Tenn. Code Ann. § 36-6-202(5) (1996). 8 The UCCJA, however, also providesthata trial court that w ould otherwise retain jurisdiction under Tenn. Code Ann. § 36-6-203 may, neverthel ess, declinejurisdiction under certain circumstances. Thus, Tenn. Code Ann. § 36-6-209 (1996), provides as f ollows: (a) If the petitioner for an initial decree has wrongfully taken the child from another state or has engag ed in similar reprehensible conduct, the court may decline to exercise jurisdiction if this is just and proper under the circumstances. (b) U n less required in the i nterest of the child and subject to § 36-6-215(a), the court shall not ex ercise i ts jurisdi ction to m odify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or oth er temporary relinq uishment of-10- physical custody. If the petitioner has violated any other pro visi on of a custody decree of another stat e, the court, subject to

§ 36-6-215(a), maydecline to exercise i ts jurisdicti on if this is just and proper under the circumstances.

With the exception of the analyti cal framewor k in the first sentence of subsection (b), the statutory l anguage is permissiv e. It provides that a t rial c ourt

“ may decline” to exercis

e its jurisdiction if “just and proper under the circumstances.” Id. (emphasis added). The trial court is authorized t

o determine what is the “just and proper” course in the consider a tion of the totality of the cir cumstances, and the appropriate standard of review for an appellate court of atrial court’s decli nation of jurisdiction is whether the trial court abused its discretion. See Falco Adkins v. Falco Antapara , 850 S.W.2d 148, 153 (Tenn. App. 1992). Under th is standard, “[a]n appellate court should not reverse for ‘abuse of discretion’ a discretionary judgment of a trial court unless it affirmatively appears that the trial court's decision was against logicor reasoning, and caused an injustice or injury to the party complaining.” Ballard
v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996); see also Myint v. Allstat e Ins. Co. , 970 S.W.2d 920, 927 (Tenn. 1998); Douglasv. Estate of Robertson , 876 S.W.2d 95, 97 (Tenn.1994).

The Husband contends that the Court of Appeals erred in finding an abuse of discretion and argues that the tri al court a cted within its discretion in declining jurisdiction due to the Wife’s “unclean hands.” Emphasizi ng that North Carolina has repeatedly held the Wife in contem pt for viola ting cus tody orders, the Husband arguesthat the UCCJA authorized the trial court to decline juris diction because: (1) the Wife has “engaged in similar reprehensible conduct,” Tenn. Code Ann. § 36-6--11-

209(a) ; and (2 ) the Wife “has violated any other pr ovision of a custody decr ee of another state,” Tenn. Cod e An n. § 36-6-209(b). The Wife responds that the Nor th Carolina contempt orders cited by the Husband found her in contempt of void orders and, thus, her violation of void orders does not constitute “reprehensible conduct” or a “viola t[ion] . . . of a custody decr ee of another state,” in accordanc e with Tenn

. Code Ann. § 36-6-209.

We in it ially note that the Husban d’s reliance on Tenn. Code Ann. § 36-6- 209(a) is misplaced. This provision involv es petitions for an “ initial decree” of child custody. Id. (emphasis added); see also Tenn. Code Ann. § 36-6-202(6). Because it is uncontroverted that North Carolina entered an “initial decree” in M arch of 1993, Tenn. Code Ann. § 36-6-20 9(a) is inap plicable. Since the Wife’s complaint in the presentcase seeks to modify an out-of-s tate decree, ou r analysis must proceed under Tenn. Code Ann. § 36-6-209(b)

. Clearlyon its face, the record indicates that the Wife has violat

ed an out

-ofstate custody decree. Tenn. Code Ann. § 36-6 -209(b). One of the North Car olina contemptorders dated No vember 22, 1994 finds the Wife to be in contempt of the September

1993 North Carolina order. In addition, the December 1994 North Carolina order found the Wife to be in contempt of the September 1993 ord er as well
as the November 22, 1994 contempt order. The Wife was represented by counsel at these contempt proceedings. During oral argument before this Court, however, counsel for the Wife argued tha t these orders were void because , under the te rms9 The Wife cites 2 8 U.S.C.A.§ 1738A(d) (Supp. 1999), which provides t hat “[t ]he juri sdicti on of a court of a St

ate which has made a chi ld cus tody o r visi tationdeterminati on consistent ly wi th the provisi ons of this se ction conti nues as lo ng as [such State co ntinu es to have juri sdiction under t he laws of that Stat

e] . . . and suc h State re main s the res idence o f the child or any conte stant.” No rth Caro lina’s version of the UCCJA provides tha t North Carol ina retai ns jurisdi ction over child cust

ody so long as: (1) This State (i) is the h ome state of the chi ld at t he time of commencement o f the pr oceeding, or (ii) had been the child's home state within six months before commencem ent of the proceeding and the child is absent from thi s State because of th e child' s removal or retention by a person clai ming the chil d's custody or for othe r reasons, and a par

ent or person acting as parent continues t

o live in thi s State; or (2) It i s in the best

intere st of the chi ld that a court of t his State assume jurisdi ction beca use (i) the ch ild and th e child's parents, or the chil d and at least one con testa nt, ha ve a s ignific ant c onn ectio n with this S tate, a nd (ii) there is ava ilable in this State substantial evidence relevant to the child's present or future care, protecti on, traini ng, and personal relati onships; or (3) The c hild is physica lly present i n th is State and (i) the child has been abandoned or (ii) it i s necessary i n an emergency to prot ect the chi ld because the c hild has been s ubjecte d to or threa tened w ith mistre atme nt o r abuse oris otherwise neglected or

dependent; or (4) (i) I t appears that

no other state would have ju risdiction under pre requisi tes subs tantia lly in accordance with paragraphs ( 1), (2), or (3), o r another st ate has declined to exercise

jurisdi ction on t he ground that th is State is the more approp riate forum to determine the custody of the chil d, and (ii)it i s in the best interest of the child that this court assume juri sdicti on. N.C. Gen. Stat. § 50A-3 (1989 ).

10 In the course of his rebuttal argument during or

al argument before

this Court , the Husband also asserted that

the Wife may not argue t his content ion because she di d not asse rt the vo idne ss argument in her brief. Although the Wife drafted her brief pro se, du ring oral argument she was represented by coun sel, w ho co nce ded that th e W ife did not c om plete ly and c ohe rently a rticula te this argument in her

brief. While it i s true that issues not i ncluded in a party’s brief may not be considered on appea l, Tenn. R . App. P. 13 (b); Fite v. State, Bd. of Paroles , 925 S.W

. 2d 543, 54 5 (Tenn. App. 1996), we construe the Wife’s br ief to su fficie ntly alleg e this argu me nt. W e fur ther n ote th at this argum ent has been c onsisten tly made by the W ife during th e cours e of this litigation. -12- of the PKPA, theNorth Carolina court d id not have subject matter j urisdiction at the times the orders subsequent to the March 1993 order w ere entered. 9

The Husband responds that the W ife is judicially est o pped from contending that the North Carolina order s are void because she atte mpted to “enroll” two of these orders in her April 18, 1995 “Petition to Enroll and Modify Foreign Decrees and for Injunct ive Relief” filed in the Chancery Co urt of Sh elby Count y. 10 This petition, sworn to under oath b y the Wif e, referenced the North Carol ina orders dated March 16,11 The petition only refe rred to the November 22, 1994 order increasi ng the Husband’s al imony and child support obligation and not the Novem ber 22, 1994 contem pt order. -13- 1993, September 30, 1993, and November 22,1994, 11 as well as two Ar kansas orders, and sought the “enforcement” of such orders in the Chancery Court of Shelby County. We agree that judicial est oppel applies in this case.

Under the doctrine of judicial est oppel “a party wil l not be permitted to occupy inconsistent

positions or to take a posi tion in regard to a m at ter which is directly contrary to, or incons istent with, one previously assumed by him, at least where he had, or was chargeable w ith, full know led ge of the facts, and another wil l be prejudiced by this action.” Obion County v. McKinnis , 364 S.W.2d 356, 357 (Tenn. 1962); see a lso Layhew v. Dix on , 527 S.W.2d 739, 741 (Tenn. 1975); Wern e v. Sanderson , 954 S.W.2d 742, 745 (Tenn. App. 1997). De s igned to prevent a party from “gaining an unfair advantage,” Carvell v. Bottoms , 900 S.W.2d 23, 30 (Tenn. 1995), the indoctrination of judici al estoppel by Tennessee court s has been cogently explained by th is Co urt in Sartain v. Dixie Coal & Iron Co. , 266 S.W.2d 313 (Tenn. 1924): The disti nctive f eature of the Tennessee law of judicial estoppel (or estoppel by oath) is the expr essed purpose of

t he court, on broad groundsof public policy, to uphold the sanctity of an oath. The sworn statementis not merely evidence against the lit iga nt, but (unless explained) preclud es him from denying its tr uth. It is not merely an admission, but an absolute bar. Id. at 318.
Applying the law to the facts of this c ase, we find that the Wife is estopped from now asserting that t wo of the North Carolina orders that she previously soug ht12 The sugge stion has been m ade that th e W ife’s April 18, 1995 petition only so ught to incorpo rate the orders of the North Carolina cour t dated September 30, 1993 and November 22, 1994, to the extent

that th ey addressed i ssues of ali mony and child suppo rt. However,a plain r eading of t he W ife’s April 1 8, 1995 petition, discussing at lengt h the custody arr angement and visit

ation schedul e set forth in the Sep temb er 30, 19 93 orde r, c lea rly indic ates that th e W ife wa s se ekin g to inc orpo rate a ll aspec ts of the Nort h Ca rolina cour t’s directi ves in these orders. I n fact, absol utely no language i n the petition avers that

the lat ter North Carol ina orders shou ld be incorpo rated to the extent t hat they address child suppor t and ali mony. Moreover, this argument was never espoused by the Wife in her briefs before th is Court or the Court of Appeal s, nor do her briefs al lege that the tri al court acted imp rope rly in dismissi ng her clai ms for a modificati on of the Husband’ s alimony and child supp ort obligation.

13 During oral argum ent, the W ife conc eded tha t No rth C arolin a reta ins ju risdic tion to hold parties in contempt of v

alid or der s. Because w e find th at the Wife is now j udicial ly est opped from arguing the inv alidity of the S epte mb er 30 , 199 3 ord er, it follows tha t North Caro lina se em ingly wo uld have jurisdi ction to hold theWife in contempt ofthis orde r. We express no opinion co ncerning whet her the orders at i ssue would be voi d under the PKPA and North Caroli na law, since the Wife is e stopped from presen ting this argu men t.

14 W e further no

te that the phrase “[ u]nless requ ired in theinterest of th e child” refe rs only to the first sentence in Tenn. Code Ann. § 36-6-209( b), which r equires mandatory

declinat ion, and not

the secon d sente nce of th e provision which is a pplicable in th e prese nt case

. -14- to enroll in the Chancery Court of Shelby County are void. 12 Be ca use the North Carolina court, on two o

ccasio ns, found

the Wifeto be in violation of the September 30, 1993 order, which the Wife previousl y sought to enroll, the Chanc ery Court of Shelby County did not err b y considering t hese co ntempt orders as a basis for declining to exercise jurisdi ction in accordance wi th Tenn. Code Ann. § 36-6-209(b). 13

CONCLUSION After due consideration of the law and the record in this cas e, we find that the trial court acted within its dis cretion in finding that “i t was just and proper unde r the circumstances” to decline jurisdiction due to the Wif e’s “viola t[i on] [of] any other provision of a custody decree of another stat e.” 14 Therefore, the decision of the Court of Appeals is reversed, and the order of the trial court di smissing the Wife’s complaint is reinstated.
Costs on appeal are taxed to the Appellee, Lorraine Burton Spiers Marcus.-15- _____________________________________ Frank F. Drowota, II I, Justice

Concur: Anderson, C.J. Birch, Holder, Barker, J.J.