State Ex Rel. Marcrum v. Marion County Superior Court

DeBRULER, Justice,

dissenting.

As pointed out by the majority Judge Frank granted permanent custody to James Marcrum on September 25,1979. This original action was commenced thereafter, and the writ requested should be denied because petitioner has failed to demonstrate in what manner her remedy by way of appeal from that final order is unavailable or inadequate. State ex rel. Conrad v. Hendricks *812Circuit Court, (1967) 249 Ind. 141, 231 N.E.2d 145; State ex rel. Barner v. White Circuit Court, (1958) 237 Ind. 443, 147 N.E.2d 10.

Petitioner’s jurisdictional claim before this Court on its merits is predicated upon Ind.Code § 31-1-11.6-6, which provides:

“(a) A court of this state shall not exercise its jurisdiction under this chapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.” (Emphasis added.)

It was the father, James Marcrum, who instituted the earlier modification of child custody proceeding in the Texas court. He also instituted the later such proceeding in the Indiana court. When he instituted the later Indiana proceeding he was not seeking to avoid an assertion of jurisdiction over him in the Texas proceedings, but was seeking to invoke jurisdiction of yet another court in service of his claim. When then he chose to dismiss the Texas proceedings as he had a right to do as the movant Ind.Code § 31-1-11.6-6 ceased to have any applicability at all as an obstacle to the assertion of jurisdiction in an Indiana court.

In my view the dismissal of the entire Texas proceedings served the same purpose underlying this provision of the statute as a stay of those proceedings would have had.