Ashburn v. Ashburn

OPINION

CHEZEM, Judge.

Case Summary

Respondent-Appellant, Dina Ashburn (“Mother”), challenges the jurisdiction of the trial court with regard to an order of child custody. We affirm.

Issue

Mother presents one issue for our review, which we restate as: whether the trial court had jurisdiction to rule on the Petition for Custody filed by Petitioner-Appellee, Bryan Ashburn (“Father”).

Facts and Procedural History

The trial court’s Statement of Evidence indicates that Mother and Father were married and resided together with their child in California. Father, originally from Indiana, moved to Indiana in January, 1993. In March, 1993, Mother, without notifying father, took the child and moved to Oregon. Father did not learn of their whereabouts until October, 1993, at which time Mother allowed Father to take the child for a one-month visit to Indiana. Father filed his petition for divorce and child custody nearly two weeks later. The trial court granted Father custody of the child and granted Mother reasonable visitation privileges. Although Mother did not file her own action for custody in Oregon, she challenges the Indiana court’s jurisdiction over the matter.

Discussion and Decision

The issue before us today is whether one parent can gain home state jurisdictional advantage under the UCCJA by taking a child and hiding for six-months in a state unknown to the other parent. Mother appeals the trial court’s grant of custody to Father on jurisdictional grounds. She argues that the trial court did not have jurisdiction under the Uniform Child Custody Jurisdiction Act. I.C. 31-1-11.6-1, et seq. (“UCCJA”). It is Mother’s position that Oregon was the home state of the child when Father requested custody in Indiana. Although the trial court did not expressly state such, it appears from the Statement of Facts and Order of Dissolution that the trial court used the “significant connections” and “best interest of the child” tests in reaching its decision.

The threshold issue, then, is whether the trial court correctly applied the “significant connections” and “best interest of the child” tests or whether the child’s home state was Oregon. While it is true that the child resided in Oregon for six months prior to Father taking the child to Indiana, the particular facts of this case call into question whether that six month residency can be counted toward time in a home state under the UCCJA.

We noted in Ruppen v. Ruppen, 614 N.E.2d 577, 580 (Ind.Ct.App.1993):

The National Conference of Commissioners on Uniform State Laws adopted the Uniform Child • Custody Jurisdiction Act (UCCJA) in 1968 to remedy the “intolerable state of affairs [in child custody disputes] where self-help and the rule of ‘seize-and-run’ prevailed] rather than the orderly processes of the law.” 9 U.L.A. 117 (1988) (prefatory note).
Registering similar concerns, the Indiana General Assembly adopted its version of the UCCJA ... in 1977. 1977 Ind.Acts Pub.L. No. 305, § 1 et seq.; IND. CODE 31-1-11.6-1 et seq. The UCCJL’s stated purposes include, in part, the avoidance of competition among jurisdictions and conflict with courts of other states in matters of child custody, the promotion of interstate cooperation so that custody decrees will be rendered in the state best able to decide the case in the interest of the child, and the deterrence of abductions and other unilateral removals of children undertaken to obtain custody awards. IND.CODE 31 — 1—11.6—1(a)(1), (2), and (5).

Thus, there are two stated purposes behind the UCCJA: first, to discourage child abductions in the name of child custody disputes, and, second, to improve comity between states with regard to matters of child custody. Mindful of the UCCJA’s general *41purposes, we now address the merits of Mother’s appeal.

The UCCJA sets out the method to determine jurisdiction. Williams v. Williams, 555 N.E.2d 142, 145 (Ind.1990). Rather the statute merely operates to restrict the existing power of courts to hear custody cases. Id. 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. Id. at 581. 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 UCCJA states, in relevant part:

(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 the commencement of the proceeding and the child is absent firom the 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.
(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this state of the child, or of the child and one [1] of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not prerequisite for jurisdiction to determine his custody.

I.C. 31-1-11.6-3.1

Additionally, I.C. 31-1-11.6-2(5) defines “home state” as “the state in which the child, immediately proceeding the time involved, lived with his parents, a parent, or a person acting as a parent, for at least six (6) consecutive months or periods of temporary absence of any of the named persons are counted as part of the six (6) months or other period.” “By definition, if the child has a ‘home state’ other than Indiana, jurisdiction may not be had in Indiana under [section] 3(a)(4) unless the home state has declined its jurisdiction.” Horlander v. Horlander, 579 N.E.2d 91, 95 (Ind.Ct.App.1991), reh. denied, trans. denied. Moreover, it is only when the “home state” test does not apply to the facts that the “significant connection” test found in I.C. 31-l-11.6-3(a)(2) may be used to provide an alternative basis for subject matter jurisdiction. Id. at 97.

The trial court properly exercised jurisdiction for several reasons. First, Mother did not challenge the trial court’s jurisdic*42tion with regard to the decree of dissolution. In general, the court which grants a marriage dissolution has continuing jurisdiction during the children’s minority to modify custody. Stambolija v. Stambolija, 643 N.E.2d 5 (Ind.Ct.App.1994); Smith v. Smith, 594 N.E.2d 825, 826 (Ind.1992). Under this ruling, because the trial court’s jurisdiction with regard to the dissolution remains unchallenged, its jurisdiction over the child custody matter cannot be bifurcated and challenged independently. Second, in his original pleading, Father apprised the trial court that there was an interstate matter before the court. Absent evidence that the trial court did not meet its duty of inquiry with regard to jurisdiction, there is a presumption in favor of the trial court that it conducted a jurisdictional inquiry. Third, the trial court was not called to weigh competing state interests because no other custody action has been initiated in either Oregon or California.

Finally, and most important, Mother bases her argument on the fact that Father misrepresented his intention to return the child to Oregon. At the time Father took the child, Mother and Father were still married and both parents were presumptively equally entitled to the physical custody of the child. Mother had previously taken the child to Oregon without apprising Father of the child’s whereabouts. Mother cannot gain “home state” jurisdictional advantage by the hand of her own deception.

Father committed no wrongdoing in terms of this custody dispute when he left Mother and child in California. Albeit, Father did lead Mother to believe he would return the child to Oregon after a short visit to Indiana, he never hid the child from Mother. That Father did not reveal his intention to file for custody in Indiana does not somehow negate his jurisdictional claim. Unlike Mother, he in no way gained the jurisdictional home state advantage through his acts of dishonesty. Instead, he asserted jurisdiction on the grounds of what is in the best interest of the child. Because Mother does not challenge the trial court’s findings with regard to the best interests of the child and significant connections, we leave those findings undisturbed. When the home state of a child may be determined only after one parent has hidden the child from the other parent in another state for six months, there is no “home state” for purposes of determining jurisdiction under the UCCJA. Accordingly, the trial court did not abuse its discretion in exercising jurisdiction in this matter.

Affirmed.

RILEY, J., concurs. SULLIVAN, J., dissents with separate opinion.

. During the pendency of this action, IC 31 — 1— 11.6-3 was amended by P.L. 79-1994, § 4, effective July 1, 1994.