Stewart v. Vulliet

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Nancy L. Cross
Anderson, Indiana Monty K. Woolsey
Indianapolis, Indiana

In the
Indiana Supreme Court FILED
Jun 24 2008, 2:48 pm
_________________________________

No. 12S02-0708-CV-331 CLERK
of the supreme court,
court of appeals and
tax court

ANTHONY N. STEWART,
Appellant (Respondent below),

v.

SIGNE L. (STEWART) VULLIET,
Appellee (Petitioner below).
_________________________________

Appeal from the Clinton Superior Court, No. 12D01-0311-DR-488
The Honorable Kathy Smith, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 12A02-0610-CV-896
_________________________________

June 24, 2008

Shepard, Chief Justice.

An expectant mother filed divorce and custody proceedings in Indiana and thereafter
moved to Washington state, where she gave birth. After litigating her case in Indiana for more
than two years, she filed a motion asserting inconvenient forum. We hold that the trial court
acted within its discretion in dismissing the child custody proceeding, in favor of Washington as
a more convenient forum.
 Facts and Procedural History

Anthony N. Stewart (“Father”) and Signe L. Vulliett (“Mother”) married in Washington
during August 1992 and lived there until May 2003, when they relocated to Indiana. In
November 2003, Mother filed for dissolution of the parties’ marriage, in Indiana. She was
pregnant at the time with their only child. After filing the petition, she moved back to
Washington, and the parties’ daughter, A.S., was born in February 2004 in Washington.

Throughout 2004 and 2005, the Indiana trial court issued several orders pertaining to the
child’s custody. It granted Father’s request for visitation, issued a provisional order that Mother
have physical custody and that Father receive seven to ten days visitation every two months,
ruled on a motion to compel discovery, issued an order regarding child support, provided
guidance to the company preparing Father’s home study, and scheduled a final hearing.

In November 2005, Mother filed an action in Washington for establishment of a
parenting plan. Father’s counsel advised him that Washington did not have jurisdiction, and
Father did not attend the Washington hearing. The Washington court declined to exercise
jurisdiction over A.S. “in light of the considerable litigation in Indiana.” (Appellant’s App. at
91.) The Washington court noted that Indiana had been properly exercising jurisdiction over the
matter. In January 2006, Mother filed a motion to reconsider and moved for default. The
Washington court granted both motions and entered a temporary parenting plan, providing
custody to Mother and visitation to Father. In March 2006, the Washington court entered a
permanent parenting plan.

In April 2006, Mother asked the Indiana court to dismiss the custody and visitation
issues, arguing that Indiana was an inconvenient forum. The court granted the motion, holding
that although Mother had waived her right to claim forum inconvenience, Washington was
nonetheless better situated to resolve the dispute because

a. Washington has always been the child’s home state and the parties lived in
Washington for many years. [Mother] lived in Indiana only 6 months.

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 b. Washington has a closer connection with the child and with substantial
evidence concerning her care, education and relationships. Witnesses and
evidence concerning child are best available in Washington.

(Id. at 11-12.)

Father appealed the trial court’s dismissal, and Mother cross-appealed the waiver
determination. The Court of Appeals upheld the trial court’s determination that Mother waived
any claim that Washington was A.S.’s home state. Stewart v. Vulliet, 867 N.E.2d 226 (Ind. Ct.
App. 2007), vacated. It reversed the dismissal of the Indiana action, ruling that Indiana is a more
convenient forum for determining custody and visitation. We granted transfer.

I. Did Our Trial Court Ever Have Jurisdiction as Respects A.S.?

Like all other states, Indiana has dealt with the phenomenon of interstate child custody
disputes by adopting statutes based on the models created by the National Conference of
Commissioners on Uniform State Laws. We thus turn first to the Uniform Child Custody
Jurisdiction Law (UCCJL), Ind. Code § 31-17-3-3 (2006), which provides four factors for
conferring jurisdiction:

(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

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 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.

Ind. Code Ann. § 31-17-3-3(a) (West 2006). 1 “Home state” is defined as:

the state in which the child, immediately preceding the time involved, lived with
the child’s parents, a parent, or a person acting as parent, for at least six (6)
consecutive months, and in the case of a child less than six (6) months old the
state in which the child lived from birth with any of the persons mentioned.

Id. § 31-17-3-2(5). 2

These provisions leave a bit of legal lacuna as to custody cases filed before the birth of
the child. Some states have held that the subject matter jurisdictional requirement is not met if
the child is born in another state. For example, in In re Marriage of Tonnessen, 937 P.2d 863
(Colo. Ct. App. 1996), divorce proceedings were initiated in Colorado, but the pregnant wife
moved to Arizona before the birth of the twin children. The Colorado court held that even
though the husband amended the divorce proceedings to include custody, there was no
jurisdiction in Colorado under their UCCJL because the children never lived there after birth.

Other courts have observed that the facial terms of the UCCJL contemplate regulation of
jurisdiction in litigation that commences after a child is born. In Gullett v. Gullett, 992 S.W.2d
866 (Ky. Ct. App. 1999), the parties initiated divorce and child custody proceedings in Kentucky
while the wife was pregnant. The wife moved to Ohio before birth of the child. The court held
that Kentucky had jurisdiction because although Kentucky was not the home state of the unborn
child, there was no other home state at the time the proceedings were filed and it was in the best
interest of the child for the state to assume jurisdiction. Although Ohio later became the child’s
home state, the court held that Kentucky exercised valid initial and continuing jurisdiction.

1
For some considerable time, our UCCJL was based on the Uniform Child Custody Jurisdiction Act (UCCJA). The
Indiana General Assembly recently supplanted the UCCJL with a similar act, bearing the title UCCJA, Ind. Code
art. 31-21 (2007), in accord with the National Conference of Commissioners on Uniform State Laws’ promulgation
of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Congress has sought to buttress the
effectiveness of these statutes under the Full Faith and Credit Clause by enacting the Parental Kidnapping
Prevention Act, 28 U.S.C. § 1738A (2007), not relied upon by either party.
2
Now supplanted by Ind. Code § 31-21-2-8 (2007).

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 As the Kentucky Court of Appeals aptly noted in Gullett, “[a child’s unborn status] at the
time of the filing of the petition for dissolution creates an anomaly in the application of the
[UCCJL].” Id. at 869. The UCCJL confers subject matter jurisdiction to a state if the state “is
the home state of the child at the time of commencement of the proceeding.” Ind. Code Ann. §
31-17-3-3(a)(1) (West 2006). A proceeding is commenced when a parent files a petition for
dissolution of the marriage. See id. § 31-17-3-2(3) (West 2006) (“‘custody proceeding’ includes
proceedings in which a custody determination is one of several issues, such as an action for
dissolution of marriage . . . .”). For a child less than six months old, the child’s home state is
defined as “the state in which the child lived from birth.” Id. § 31-17-3-2(5) (West 2006)
(emphasis added). Because Mother filed her petition for dissolution prior to the birth of A.S.,
A.S. did not have a “home state” at the time of the “commencement of the proceeding.”

Accordingly, Ind. Code § 31-17-3-3(a)(4) becomes applicable for determining whether
Indiana had subject matter jurisdiction over A.S.’s custody determination. This subsection
confers jurisdiction to Indiana if the child does not have a home state and it is in the best interest
of the child for Indiana to assume jurisdiction. At the time the dissolution petition was filed, no
other state, including Washington, had custody jurisdiction over A.S. because she had not yet
been born. A.S.’s parents resided had both resided in Indiana and information about A.S.’s
parents and other family members was available in Indiana.

Upon the birth of A.S., Washington became her home state. Id.; Wash. Rev. Code Ann. §
26.27.201(1)(a) (West 2006). Thereafter, Washington had concurrent subject matter jurisdiction
to determine A.S.’s custody. Wash. Rev. Code Ann. § 26.27.201(1) (West 2006). However, a
Washington Court

may not exercise its jurisdiction . . . if, at the time of commencement of the
proceeding, a proceeding concerning the custody of the child has been
commenced in a court of another state having jurisdiction substantially in
conformity with this chapter, unless the proceeding has been terminated or is
stayed by the court of the other state because [Washington] is a more convenient
forum.

Id. § 26.27.251(1) (the equivalent to Ind. Code § 31-17-3-6 (2006) 3 ).

3
Now supplanted by Ind. Code § 31-21-5-6 (2007).

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 Even though Washington later became A.S.’s home state, Indiana did not necessarily lose
jurisdiction. Ind. Code Ann. § 31-17-3-3(a)(4) (West 2006). The mere fact that the child and her
custodial parent live in another state does not, as a matter of law, compel dismissal. See id. § 31-
17-3-3(c) (“Physical presence of the child, while desirable, is not prerequisite for jurisdiction to
determine his custody.”). Accordingly, because a custody case was already pending in Indiana
in conformity with the UCCJL, Washington could not have exercised jurisdiction over A.S.’s
custody unless Indiana terminated or stayed the proceeding. Thus, the Indiana trial court could
have continued to entertain A.S.’s custody determination, but, as discussed below, deferring to
Washington was also within the court’s discretion.

II. Mother’s Motion to Dismiss for Forum Inconvenience

Because the trial court held that Mother waived her right to claim forum inconvenience,
Father argues that dismissal should have been barred.

The UCCJL provides that a court with subject matter jurisdiction over a child custody
dispute may nonetheless “decline to exercise its jurisdiction any time before making a decree if it
finds that it is an inconvenient forum . . . under the circumstances . . . and that a court of another
state is a more appropriate forum.” Ind. Code Ann. § 31-17-3-7(a) (West 2006). 4 The issue of
inconvenient forum may be raised on motion of a party or on the court’s own motion. Id. § 31-
17-3-7(b). 5 A court’s decision as to whether to exercise jurisdiction is reviewable for an abuse
of discretion. Palm v. Palm, 690 N.E.2d 364, 368 (Ind. Ct. App. 1998). In reviewing the trial
court’s decision, we consider only the evidence most favorable to the decision and reverse only if
the result is clearly against the logic and effect of the facts and the reasonable inferences to be
drawn therefrom. Id.

4
Now supplanted by Ind. Code § 31-21-5-8 (2007).
5
Now supplanted by Ind. Code § 31-21-5-8(a) (2007).

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 As discussed above, the mere fact that the child and his custodial parent live in another
state does not, as a matter of law, divest the trial court of jurisdiction. Where the parties to a
family law dispute reside in different states, there will frequently be more than one state with
subject matter jurisdiction. Forum inconvenience rules were created to determine which of these
courts should resolve the dispute, not as a means of divesting either court of subject matter
jurisdiction. See Campbell v. Campbell, 180 Ind. App. 351, 388 N.E.2d 607 (Ind. Ct. App.
1979). 6 Accordingly, forum inconvenience claims can be waived.

In this case, the Mother had initiated the dissolution action in Indiana and asked the
Indiana court to rule on custody. The custody matter was pending in Indiana for more than two
years prior to Mother’s forum inconvenience motion. During that time, the parties filed
numerous motions, conducted parenting time plans, attended mediation, and otherwise availed
themselves of the Indiana court system. The trial court issued several orders and dedicated
substantial resources to the child custody dispute. These activities support a plausible claim of
waiver based on unjustified delay in filing a forum inconvenience motion.

Nonetheless, even if a party has waived the right to claim forum inconvenience, a trial
court has discretion to decline to exercise jurisdiction on the grounds of forum inconvenience.
The UCCJL provides that a court with subject matter jurisdiction over a child custody dispute
may “decline to exercise its jurisdiction any time before making a decree if it finds that it is an
inconvenient forum . . . under the circumstances . . . and that a court of another state is a more
appropriate forum.” Ind. Code Ann. § 31-17-3-7(a) (West 2006) (emphasis added). 7 The issue
of inconvenient forum may be raised on the court’s own motion. Id. § 31-17-3-7(b). 8 Because
the UCCJL authorizes a court on its own motion to decline exercising jurisdiction at any time
prior to issuing a decree, waiver by a party does not prevent a court, in its discretion, from
dismissing a case based on forum inconvenience.

6
This view is reinforced by the General Assembly’s recent enactment of Ind. Code § 31-21-5-1, which supplanted
Ind. Code § 31-17-3-3 (2006) and states that “[t]he jurisdictional requirements described in this section provide the
exclusive jurisdictional basis for making a child custody determination by an Indiana court.” Ind. Code Ann. § 31-
21-5-1(b) (West 2007).
7
Now supplanted by Ind. Code § 31-21-5-8 (2007).
8
Now supplanted by Ind. Code Ann. § 31-21-5-8(a) (2007).

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 Indiana Code § 31-17-3-7(c) (2006) set forth the factors for determining whether Indiana
was an inconvenient forum. 9 These factors included but were not limited to:

(1) if another state is or recently was the child’s home state;

(2) if another state has a closer connection with the child and his family or with
the child and one (1) or more of the contestants;

(3) if substantial evidence concerning the child’s present or future care,
protection, training, and personal relationships is more readily available in
another state;

(4) if the parties have agreed on another forum which is no less appropriate; and

(5) if the exercise of jurisdiction by a court of this state would contravene any of
the purposes [of the UCCJL].

Ind. Code Ann. § 31-17-3-7(c) (West 2006).

In this case, the trial court determined that Indiana is an inconvenient forum because
Washington has always been the child’s home state, the parties lived in Washington for many
years, witnesses and evidence concerning the child are best available in Washington, and
Washington has a closer connection with the child and with substantial evidence concerning her
care, education, and relationships. This analysis comports with the statutory factors for
evaluating forum inconvenience, and facts in the record support these determinations. Despite
that A.S., being unborn, did not have a home state nor close connections with the state of
Washington when the proceeding was commenced, the trial court can still properly consider
these factors when determining whether to dismiss the action for forum inconvenience because
the UCCJL authorizes a court to decline exercising jurisdiction “any time before making a
decree.” Id. § 31-17-3-7(a). 10 The court is not limited to considering the parties’ circumstances
only as they existed at the time the petition was filed, but rather can evaluate the case on a
continuing basis to ensure the child’s best interests are protected.

Accordingly, the trial court did not abuse its discretion in declining to exercise its
jurisdiction over A.S.’s custody determination.
9
Indiana Code § 31-17-3-7 (2006) was supplanted by Ind. Code § 31-21-5-8 (2007), containing similar but not
identical provisions.
10
Now supplanted by Ind. Code § 31-21-5-8 (2007).

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 III. Deferring to Washington is Consistent with the UCCJL

Father argues that dismissal contravenes the purposes of the UCCJL because it permits
forum shopping. (Appellant’s Br. at 9-17.)

The stated purposes of the UCCJL include to: (1) avoid jurisdictional competition, (2)
promote cooperation among courts of different states, (3) assure that custody litigation is
commenced in the state with the closest connection to the child and his family, (4) discourage
controversies over child custody, (5) deter abductions undertaken to obtain custody awards, (6)
avoid re-litigation of custody decisions of other states, (7) facilitate the enforcement of custody
decrees in other states, and (8) promote and expand the exchange of information and assistance
concerning the same child between courts among states. Ind. Code Ann. § 31-17-3-1 (West
2006).

To be sure, courts disfavor forum shopping for a host of reasons important to the bench,
the bar, and the public. But the stated purposes of the UCCJL make it clear that its primary aim
is to reduce court conflicts among states. Avoiding such conflicts is in the best interest of
children involved in custody disputes because the shifting of children from state to state and the
risk of unilateral abduction for the purposes of obtaining different custody orders has harmful
effects on children’s well-being. See id. Occasionally, the net result of the jurisdictional
provisions of the UCCJL will permit some forum shopping, but such a result is tolerable if it
means that the custody dispute will be litigated in the state most aligned with the child’s best
interest.

In this case, the Indiana trial court determined that the Washington court was better
situated to resolve the custody dispute and that dismissal was in the best interest of the child. As
discussed above, the court complied with the statutory forum inconvenience analysis. The
record shows that Mother had a legitimate purpose for moving to Washington apart from any ill
motive or blatant attempt to forum shop. Mother only lived in Indiana for six months before
initiating the divorce proceedings and moving back to Washington. Prior to moving to Indiana,
Mother had always lived in Washington, where her relatives reside. (Appellant’s App. at 85;

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Appellee’s App. at 83.) At the time of Mother’s move, neither party was employed in Indiana.
(Appellee’s App. at 91.) No evidence suggests that Mother moved to Washington to prevent
Father from participating in the custody suit. Thus, our holding that the trial court did not abuse
its discretion by dismissing the custody suit does not contravene the purposes of the UCCJL.

IV. This Outcome is Consistent with Trial Rule 4.4

Father also argues that dismissal was inappropriate pursuant to Ind. Trial Rule 4.4
because he did not file a written stipulation agreeing to personal jurisdiction in Washington or a
stipulation waiving statute of limitations defenses in Washington. (Appellant’s Br. at 5-9.) Trial
Rule 4.4(D) provides that

[n]o stay or dismissal shall be granted due to a finding of forum non conveniens
until all properly joined defendants file with the clerk of the court a written
stipulation that each defendant will:

(1) submit to the personal jurisdiction of the courts of the other forum; and

(2) waive any defense based on the statute of limitations applicable in the
other forum with respect to all causes of action brought by a party to
which this subsection applies.

Father argues that this rule conflicts with the UCCJL forum inconvenience provision because the
UCCJL does not require defendants to file the written stipulations submitting to personal
jurisdiction or waiving statute of limitations defenses. Father’s argument misconstrues the
purpose of Rule 4.4.

Rule 4.4(D) stipulations are designed to prevent the moving party from seeking dismissal
on forum inconvenience grounds only then to claim that the suit cannot be litigated in the new
jurisdiction because of a lack of personal jurisdiction or because the statute of limitations has
expired. In cases involving custody determinations, it is hard to image a scenario in which
personal jurisdiction or the statute of limitations will be at issue. The UCCJL does not
contravene Rule 4.4 by failing to require written stipulations waiving personal jurisdiction or

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statute of limitations defenses; rather, such a requirement was not included because it is
generally inapplicable to this type of case.

Father argues that he should have had to sign a waiver of personal jurisdiction and statute
of limitations defenses, yet neither his personal jurisdiction in Washington nor the statute of
limitations is at issue in this case. Additionally, if he did have a personal jurisdiction or statute
of limitations defense, it would work to his advantage, rather than prejudice him. Mother also
has no personal jurisdiction or statute of limitations defense in the state of Washington. Thus,
Father’s argument that dismissal was inappropriate because there were no written stipulations
fails.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment.

Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in result with separate opinion.
.

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Sullivan, Justice, concurring in result.

I concur in the result of the Court’s opinion that Washington State has jurisdiction in this
case. Assuming that the Indiana trial court had jurisdiction, I concur in Part III of the Court’s
opinion holding that the trial court properly reached and determined the question of the most
convenient forum. I express no opinion as to Parts I and II of the Court’s decision.

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