MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 27 2018, 8:43 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Adam J. Sedia Cassandra Hine
Hoeppner, Wagner & Evans, LLP Law Office of Cassandra Hine, P.C.
Merrillville, Indiana San Pierre, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of July 27, 2018
J.G.L.: Court of Appeals Case No.
18A-JP-496
Kenya Roberson, Appeal from the Starke Circuit
Court
Appellant-Respondent,
The Honorable Kim Hall, Judge
v. The Honorable Jeanene Calabrese,
Magistrate
Quentin Lenig, Trial Court Cause No.
Appellee-Petitioner. 75C01-1701-JP-1
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018 Page 1 of 13
Case Summary and Issue
[1] Quentin Lenig (“Father”) and Kenya Roberson (“Mother”) have one child
together, J.L. (“Child”). In early 2017, the parties stipulated to Father’s
paternity and signed an agreement on custody, support, and parenting time in
the Starke County Circuit Court (“trial court”). Mother was granted primary
physical custody of Child and relocated to California with Child permanently.
Mother then filed a Verified Motion to Transfer Jurisdiction to California,
under the Uniform Child Custody and Jurisdiction Act (“UCCJA”), and a
Verified Motion for UCCJA contact between the trial court and the Superior
Court of San Diego County, California (“the California Court”), where Mother
now resides. The trial court denied Mother’s motions. Mother now appeals,
raising only one issue for our review which we restate as whether the trial court
erred in denying Mother’s motion to transfer jurisdiction to California.
Concluding the trial court erred, we vacate the trial court’s order and remand
with instructions.
Facts and Procedural History
[2] Child was born on March 10, 2016, and paternity was established on February
8, 2017. The trial court granted Mother temporary physical and legal custody
of Child and granted Father temporary supervised parenting time. In so doing,
the court noted that Child had been living in California, and that Mother had
requested permission for Child to return there, but the court ordered Child
remain in Indiana pending final resolution of custody, parenting time, and
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support. Shortly thereafter, Father and Mother signed an agreement on
custody, support, and parenting time, which the trial court adopted as its order
on March 20, 2017. The order granted Mother primary physical custody of
Child, and she was permitted to relocate to California permanently. The order
also specified Father’s parenting time schedule and addressed the payment of
travel expenses.
[3] In August 2017, Father moved for a rule to show cause, arguing Mother was
wrongfully interfering with his parenting time. Two months later, Mother
requested supervised parenting time for Father, alleging Father had become
violent, threatened her, and was using illegal drugs. Following a hearing, the
trial court denied both parties’ requests and entered an order providing
additional parenting time for Father and stating that “All orders not modified
by this order remain in full force and effect.” Appendix of Appellant, Volume
II at 21.
[4] Mother retained new counsel and requested the trial court transfer venue to the
California Court pursuant to the UCCJA. Mother attached an exhibit titled
“Restraining Order After Hearing (Order of Protection)” (“California
Restraining Order”). App. of Appellant, Vol. II at 25-28; 30-39. The California
Restraining Order provided that the California Court held a hearing on January
29, 2018, which Father and Mother attended, and the court ordered Father to
stay at least one hundred yards from Mother and Child and restricted Father’s
contact for three years. The California Restraining Order also incorporated two
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attachments: (1) “Child Custody and Visitation Order,” id. at 37; and (2)
“Court[’]s Findings and Orders 1/29/18,” id. at 39.
[5] The Child Custody and Visitation Order ordered “[n]o visitation to . . . Dad,”
id. at 37, while the handwritten Court’s Findings and Orders provided:
(1) Court finds that Father has not been truthful with the court.
The Court does not believe Father as Father has lied to the
Court about the abusive text messages, threats and his
behavior. Father has sought to minimize his actions and does
not understand the extent or significance of his behavior.
(2) Counsel for Mother is to file a request for Order regarding
modification of child custody / visitation. Court sets hearing
date on custody for March 12, 2018 at 11:15 a.m.
(3) Court exercised child custody [j]urisdiction pursuant to
Family Code 3424.
(4) Court finds that Mother’s allegations of abuse by Father are
substantiated and issues a 3 year restraining order, listing both
Mother and [Child] as protected parties. Court will reassess
custody and whether it retains emergency jurisdiction [sic]
March 12, 2018 FO [sic] hearing.
Id. at 39.
[6] The trial court held a hearing on Mother’s Motion Verified Motion to Transfer
Jurisdiction to California on February 19, 2018. Both Father’s and Mother’s
counsel attended in person, as did Father, and Mother attended by telephone.
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Mother rested on the verified statements in her motion. Following arguments
from counsel, the trial court made the following ruling on the motion:
[The Court]: Yeah. You know, here’s the deal. I’m not – I’m
not losing jurisdiction over this case. From day one
(1) the mother has repeatedly attempted to keep
[Father] out of this child’s life. We – I accepted the
agreement and allowed her to remove herself and
the child – at first I had to order the child to remain
in Indiana and she could go back to California or
wherever she was, by herself, but she chose to stay
here and she just keeps doing it, and doing it, and
I’m not gonna’ do it. I’m not giving up jurisdiction
on this case. So, I don’t know where that leaves
either one of you but I’m not gonna’ do it. The
[UCCJA] allows this Court to retain it because this
is where the decree of paternity was entered. And
I’m keeping it. And I’m not giving it away. So,
[Mother], if you want this Court to address any
issues regarding [Child], I suggest that you show up
in this courtroom for hearings. Do you have any
questions ma’am?
[Mother]: Um – I don’t have any questions, but –
[The Court]: Okay. So, I’m denying your request to transfer the
case out to California. That’s all for today.
Transcript, Volume II at 8-9. The trial court then entered the following order
on February 21, 2018:
[T]he Court denies the Verified Motions for the following
reasons:
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1. In open court on February 8, 2017, the Court was made
aware of [Mother] relocating to the State of California
with [Child] and being in violation of I.C. 31-17-2.2.
2. On February 8, 2017, after the submission of evidence the
Court granted temporary custody of [Child] to [Mother]
based upon [Mother]’s promise that she would remain in
Indiana with [Child] until a final hearing could be held
regarding custody, parenting time and child support.
3. Since the inception of this case, the Court has observed
that [Mother] has continuously attempted to inhibit the
relationship between [Father] and [Child] without
reasonable justification for doing so.
4. On March 20, 2017, the Court approved the parties’
agreement allowing for [Mother] to relocate to the State of
California with [Child] because [Father] was given
extended parenting time with [Child] . . . .
5. The Court would not have allowed for [Child] to relocate
to California with [Mother] if there had not been a
provision in the agreement allowing for reasonable
parenting time for [Father] because it has been found by
this Court that it is in the best of interest [sic] of the child
that [Child] has a relationship with [Father].
6. The Court reaffirms [Father]’s parenting time pursuant to
the agreement approved and ordered by this Court on
March 20, 2017, and [Father] is entitled to parenting time
with [Child] from March 26, 2018 through April 6, 2018
which is [sic] the dates for spring break for 2018 based
upon the local school year.
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App. of Appellant, Vol. II at 9-10. Mother now appeals.
Discussion and Decision
I. Standard of Review
[7] We review a court’s decision to exercise jurisdiction for an abuse of discretion.
Barwick v. Ceruti, 31 N.E.3d 1008, 1014 (Ind. Ct. App. 2015). “In reviewing the
court’s decision, we consider only the evidence most favorable to the decision
and reverse only where the result is clearly against the logic and effect of the
facts and the reasonable inferences to be drawn therefrom.” Id. We review
matters of statutory interpretation de novo because they present pure questions of
law. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).
II. Jurisdiction
[8] Mother argues the trial court abused its discretion in denying her motion to
transfer jurisdiction to California. Specifically, Mother argues the trial court
failed to consider the factors enumerated in Indiana Code section 31-21-5-8(b).
In turn, Father argues application of the statute is unnecessary because he
continues to reside in Indiana.
[9] We begin by noting that Father’s argument confuses jurisdiction with an
inconvenient forum. The question before us is not one of jurisdiction—the trial
court’s jurisdiction over this matter is undisputed. See Brief of Appellant at 11.
“The fundamental principle underlying the UCCJA is that once a court with a
jurisdictional basis exercises jurisdiction over a ‘custody’ issue, that court
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retains exclusive jurisdiction over all custody matters so long as a ‘significant
connection’ remains between the controversy and the state.” In re Custody of
A.N.W., 798 N.E.2d 556, 561 (Ind. Ct. App. 2003) (citation omitted), trans.
denied. As long as one parent continues to reside in Indiana, a “significant
connection” to Indiana remains, but a trial court has discretion to defer to
another court that is a more convenient forum to litigate the issues. Id. at 561-
62.
[10] In determining whether to relinquish its jurisdiction to a more convenient
forum, a court is required to consider whether it is in the child’s best interest
that another state assume jurisdiction. Barwick, 31 N.E.3d at 1015. Indiana
Code section 31-21-5-8 provides:
(a) An Indiana court that has jurisdiction under this article to
make a child custody determination may decline to exercise its
jurisdiction at any time if the Indiana court determines that:
(1) the Indiana court is an inconvenient forum under the
circumstances; and
(2) a court of another state is a more appropriate forum.
The issue of inconvenient forum may be raised on motion of a
party, the court’s own motion, or request of another court.
(b) Before determining whether an Indiana court is an
inconvenient forum, the Indiana court shall consider whether it is
appropriate for a court of another state to exercise jurisdiction.
For this purpose, the Indiana court shall allow the parties to
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submit information and shall consider the relevant factors,
including the following:
(1) Whether domestic violence has occurred and is likely
to continue in the future and which state is best able to
protect the parties and the child.
(2) The length of time the child has resided outside
Indiana.
(3) The distance between the Indiana court and the court
in the state that would assume jurisdiction.
(4) The relative financial circumstances of the parties.
(5) An agreement of the parties as to which state should
assume jurisdiction.
(6) The nature and location of the evidence required to
resolve the pending litigation, including the child’s
testimony.
(7) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence.
(8) The familiarity of the court of each state with the facts
and issues in the pending litigation.
[11] Mother argues she referenced the foregoing factors and gave verified supporting
facts for each, but the trial court “completely disregarded all of the eight factors,
both in its oral ruling and its written Order.” Brief of Appellant at 13.
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Considering the statute states the court “shall consider” the factors, Mother
contends the trial court abused its discretion. We agree.
[12] We have held that this “list is not exclusive, and that courts may consider all
relevant factors, including factors not listed in Indiana Code section 31-21-5-
8(b).” Tamasy v. Kovacs, 929 N.E.2d 820, 827 (Ind. Ct. App. 2010). And, in the
few cases applying the current statute,1 the trial court has considered all relevant
factors. See Barwick, 31 N.E.3d at 1015 (the trial court “thoroughly reviewed
each of” the factors and made specific findings); Tamasy, 929 N.E.2d at 834 (the
trial court made findings regarding seven of the factors, save domestic violence,
as well as additional findings that supported its determination). However,
whether a trial court must consider all relevant factors appears to be an issue of
first impression.
[13] Statutory interpretation is a function for the courts, and our goal in statutory
interpretation is to determine, give effect to, and implement the intent of the
legislature as expressed in the plain language of its statutes. State v. Prater, 922
N.E.2d 746, 749 (Ind. Ct. App. 2010), trans. denied. We look first to the
statutory language, and we presume that the words of the statute were selected
and employed to express their common and ordinary meanings. F.D. v. Indiana
Dep’t of Child Servs., 1 N.E.3d 131, 136 (Ind. 2013). “Where the statute is
1
Under the previous version of the statute, Indiana Code section 31-17-3-7 (1997), a trial court “may take
into account” the section’s five enumerated factors when determining whether it is an inconvenient forum.
Ind. Code § 31-17-3-7(c) (1997).
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unambiguous, the Court will read each word and phrase in this plain, ordinary,
and usual sense, without having to resort to rules of construction to decipher
meanings.” Id. (citation omitted). Accordingly, clear and unambiguous
statutes leave no room for judicial construction.
[14] Indiana Code section 31-21-5-8(b) states that, “[b]efore determining whether an
Indiana court is an inconvenient forum, the Indiana court shall consider
whether it is appropriate for a court of another state to exercise jurisdiction,”
and that, “[f]or this purpose, the Indiana court shall allow the parties to submit
information and shall consider the relevant factors.” (Emphases added.) The
word “shall” is presumptively treated as mandatory “unless it appears clear
from the context or the purpose of the statute that the legislature intended a
different meaning.” Indiana Civil Rights Comm’n v. Indianapolis Newspapers, Inc.,
716 N.E.2d 943, 947 (Ind. 1999). Here, we find no indication the legislature
intended a different meaning for the word “shall.” Therefore, we conclude the
plain language of Indiana Code section 31-21-5-8(b) requires a trial court to
consider the enumerated factors as well as any additional relevant factors for
which the parties submit information. This is not to say, however, that a trial
court need explicitly address each enumerated factor; as the statute’s use of
“relevant” suggests, the trial court need not consider factors not implicated by
the evidence. Ind. Code § 31-21-5-8(b).
[15] Here, the trial court neither issued findings concerning the relevant factors nor
orally explained that it had considered them. Apparently, the trial court’s only
consideration was its finding that Mother had “continuously attempted to
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inhibit the relationship” between Father and Child. App. of Appellant, Vol. II
at 9; see also Tr., Vol. II at 8-9. Although a permissible consideration, this alone
is insufficient to satisfy the statute. Moreover, the trial court clearly stated:
I’m not gonna’ do it. I’m not giving up jurisdiction on this case.
So, I don’t know where that leaves either one of you but I’m not
gonna’ do it. The [UCCJA] allows this Court to retain it because
this is where the decree of paternity was entered. And I’m
keeping it. And I’m not giving it away. So, [Mother], if you
want this Court to address any issues regarding [Child], I suggest
that you show up in this courtroom for hearings.
Tr., Vol. II at 8-9.
[16] Clearly, the trial court was determined to retain jurisdiction—regardless of
whether California was a more convenient forum. Indiana Code section 31-21-
5-8(b) requires a trial court consider all relevant factors before making such
determination. Therefore, we conclude the trial court abused its discretion.
[17] Since Mother submitted information regarding the enumerated factors, we find
it unnecessary for the trial court to conduct another hearing. On remand, we
direct the trial court to consider the relevant factors before determining whether
California is a more convenient forum.
Conclusion
[18] Concluding the trial court erred by failing to consider relevant factors pursuant
to Indiana Code section 31-21-5-8(b), we vacate the trial court’s order and
remand with instructions.
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[19] Vacated and remanded.
Baker, J., and May, J., concur.
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