              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.
