ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
SEAN C. LEMIEUX MICHAEL H. HAGEDORN
Indiana Civil Liberties Union Tell City, Indiana
IN RE THE MARRIAGE OF: ) ) DEBRA L. PRYOR, ) ) Appellant-Respondent, ) ) vs. ) No. 62A01-9806-CV-226 ) JOHN H. PRYOR, ) ) Appellee-Petitioner. )
an action in Indiana and that she had received the temporary restraining order and summons
to appear in the Perry Circuit Court.
On February 18, 1998, the Indiana court held its provisional hearing. Both John and Debra appeared, but Debra appeared without counsel. Debra failed to notify the court that she had filed a petition in Kentucky for dissolution of marriage and custody of A. The Indiana court rendered a provisional order granting John temporary custody of A. and ordered Debra to deliver physical custody to John on February 21, 1998, at Debra's residence in Kentucky. However, on February 19, 1998, the Kentucky court entered an ex parte order granting temporary custody to Debra and scheduled a full hearing for March 4, 1998.
On February 21, 1998, John went to Debra's residence to get A., but Debra claimed she had custody of A. pursuant to the Kentucky court order. Therefore, on February 23, 1998, John filed a "Petition for Citation of Contempt" because Debra refused to deliver physical custody of A. On February 27, 1998, the court entered an order for Debra to appear in the Perry Circuit Court on March 3, 1998 for a hearing on the petition for citation of contempt. On March 3, 1998, Debra failed to appear at the hearing and the court entered a contempt judgment, again ordering Debra to deliver custody and ordering the clerk to issue a warrant for Debra's arrest.
On March 10, 1998, Debra filed a "Motion for Relief from Orders and to Stay Proceedings" in the Indiana court. In her motion, Debra, for the first time, notified the Indiana court that she had filed a petition for custody of A. and a Kentucky court had granted her temporary custody of A. Debra claimed that John's petition for dissolution of marriage
was incorrect because she had not resided in Perry County for three months and in Indiana
for more than six months before John filed the petition on February 4, 1998. Debra
contended that she and A. moved to Kentucky on February 28, 1997 and A. had been
enrolled in school in Kentucky since that date. Therefore, she claimed that Kentucky was
A.'s "home state" for jurisdictional purposes. Debra's motion was denied.
On May 14, 1998, a final hearing was held in the Perry Circuit Court and a "Decree for Dissolution of Marriage" was entered on May 29, 1998. The decree stated that the court had jurisdiction over the subject matter and the parties to the action and granted custody to John. Debra now brings this appeal.
The UCCJA sets out the method to determine jurisdiction. Williams v. Williams, 555 N.E.2d 142, 145 (Ind.1990). Under the UCCJA, an Indiana court has an affirmative duty to question its jurisdiction when it becomes aware of an interstate dimension in a child custody
dispute. Ashburn v. Ashburn, 661 N.E.2d 39, 41 (Ind. Ct. App. 1996). The trial court must
first determine whether it has jurisdiction, and, if it does, whether to exercise that
jurisdiction. Id. In determining whether a trial court has improperly exercised jurisdiction
under the UCCJA, we apply an abuse of discretion standard. Moody v. Moody, 488 N.E.2d
378, 381 (Ind. Ct. App.1986). An abuse of discretion will occur when the trial court's
decision is clearly against the logic and effect of the facts and circumstances before the court,
or if the court has misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d
175, 180 (Ind.1993). The jurisdictional portion of the UCCJA states:
Sec. 3. Jurisdiction. (a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(3) the child is physically present in this state and the child has been abandoned; or
(4) (A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) it is in the best interest of the child that this court assume jurisdiction.
an alternative basis for subject matter jurisdiction. Horlander, 579 N.E.2d at 97. Thus, the
"significant connections" standard referred to in Matter of E.H. is the jurisdictional standard
which has been applied as a basis for continuing jurisdiction over all custody matters only
after that court obtains a jurisdictional basis to exercise jurisdiction over the case.
In the case at hand, because we find that the Perry Circuit Court was aware at the outset of the proceedings that Debra was living in Kentucky with A., the court was on notice of the interstate dimension of this case and was therefore required to make a determination of its subject matter jurisdiction pursuant to the UCCJA. According to the "Agreed Statement of Evidence and Proceedings," John testified at the February 18, 1998 Provisional Hearing that Debra and A. had lived in Kentucky for approximately one year since John and Debra separated in February, 1997. Therefore, Indiana was not A.'s home state at the time of the commencement of the custody proceeding and so the Perry Circuit Court did not have jurisdiction to make a child custody determination pursuant to the "home state" standard enumerated in Ind. Code § 31-17-3-3(a)(1). Furthermore, because Indiana was not A.'s home state and because there is no evidence in the record to indicate whether Kentucky declined its jurisdiction,See footnote 1 the Perry Circuit Court improperly exercised its jurisdiction by making a custody determination before it performed its affirmative duty to question its jurisdiction in this interstate custody dispute. Thus, we must remand this case for the trial court to conduct
a further hearing in order to make a determination whether Indiana or Kentucky has
jurisdiction or whether Kentucky declined its jurisdiction as John's counsel alleges.
accordance with the best interests of the child, and in determining the best interests of the
child, there is no presumption favoring either parent. Ind. Code § 31-17-2-8.
Converted from WP6.1 by the Access Indiana Information Network