Skiles v. Skiles

OPINION

BAKER, Judge.

Appellant-respondent Seott A. Skiles brings this interlocutory appeal by right under Ind. Appellate Rule 4(B)(1) challenging the trial court's award of $144,000 to appel-lee-petitioner Elizabeth A. Skiles (Libby) as preliminary attorney fees. He maintains that the trial court lacked subject matter jurisdiction to enter the award because Scott and Libby were not domiciled in Indiana, but Florida where Scott had been employed as a professional basketball player and the parties resided.

FACTS

In 1988, Scott and Libby were married in Carmel, Indiana, and purchased a condominium in Indianapolis where they lived year round. At that time Seott played professional basketball for the Indiana Pacers. The Skiles first son, Scotty, was born in Indianapolis later in 1988. In 1989, the Skiles sold their Indianapolis condominium and purchased a home on Sweetwater Lake in Nineveh, Brown County, Indiana.

Scott was drafted by the Orlando Magic in the NBA expansion draft and went to Orlando for the 1989-90 basketball season. The Skiles rented a furnished condominium during that season. Afterward, they returned to their Brown County home. For the 1990-91 season, the Skiles again rented a furnished place to live in Florida and returned to their Brown County home when the basketball season was over.

In the summer of 1991, Seott received a multi-year, multi-million dollar contract with a one million dollar signing bonus from the Orlando Magic. On the advice of a financial advisor, a large portion of the signing bonus was applied to the purchase of a house in Longwood, Florida, where the Skiles family lived during the basketball seasons. A see-ond son, Sean, was born in Florida in 1992. At the end of the 1991-92 season, the Skiles vacationed at their Brown County home.

After their purchase of the Florida home, the Skiles filed for and obtained a homestead exemption, designating that home as their primary residence, something they had never done on any property they owned in Indiana. After mid-1989, they designated themselves as Florida residents on their federal income tax returns. They held themselves out as Florida residents on the nonresident income tax forms Scott, as an NBA player, was required to file in California for games played there. Because Florida has no income tax, Seott and Libby took advantage of the reduced tax burdens they received as Florida residents. Both Scott and Libby obtained Florida driver's licenses in 1991. Libby registered all of the parties' vehicles in Florida and obtained Florida license plates. Seott registered and voted in the 1992 Florida elections. Libby did not vote.

From September 1989 until their departure from Florida, Libby and the children were regularly treated by Florida physicians, and even while vacationing back home again in Indiana, Libby continued treatment in Florida with her therapist.

During the 1998-94 basketball season, marital discord escalated and Libby and the *355children left Florida on September 12, 1998. They moved to her grandparents and then to the Skiles' Brown County retreat. Five days later, Libby filed her petition for dissolution in the Brown Cireuit Court, alleging that she was an Indiana resident. Seott filed a motion to dismiss for lack of jurisdiction contending that Indiana lacked subject matter jurisdiction because both Libby and he were Florida residents.1 Upon holding an eviden-tiary hearing, the trial court ruled that the Skiles were domiciled in Indiana and that it had jurisdiction to entertain their dissolution proceedings. - Thereafter, the trial court awarded Libby $144,000 as preliminary attorney fees, in addition to the $110,000 Libby had previously paid her attorneys. Pursuant to App.R. 4(B)(1), which provides for interlocutory appeals in cases for the payment of money, Scott filed this interlocutory appeal contesting the award.

DISCUSSION AND DECISION

I. Standard of Review

On appeal of a bench decision, we will not set aside the judgment unless it is clearly erroneous. Ind. Trial Rule 52(A). The trial court's judgment is clearly erroneous if a review of the record leaves us with a firm conviction that a mistake has been made. Merrill v. Merrill (1992), Ind.App., 587 N.E.2d 188, 189. When the trial court does not enter findings, we presume the judgment is based on findings supported by the evidence and will affirm if the judgment can be sustained on any legal theory supported by the evidence most favorable to the judgment, together with all reasonable inferences to be drawn therefrom. Klebes v. Forest Lake Corp. (1993), Ind.App., 607 N.E.2d 978, 982, trans. denied. However, when reviewing a general judgment, we consider not only the evidence most favorable to the judgment, but also any uncontradicted evidence. Manor v. Statesman Ins. Co. (1993), Ind.App., 612 N.E.2d 1109, 1113, trans. denied.

II. Jurisdiction

Seott challenges the award of attorney fees by asserting that the trial court lacked subject matter jurisdiction. The trial court awarded the attorney fees under the authority of IND.CODE § 31-1-11.5-16. However, to make such an award, jurisdiction under IND.CODE § 31-1-11.5-6 must first be sat-isfled. Scott asserts that it was not.

In Indiana, a divorcee court does not obtain subject matter jurisdiction unless at least one party has been an Indiana resident for the six months immediately preceding the filing of the dissolution petition and a resident of the county where the petition was filed for the three months immediately preceding the filing of the petition. IND.CODE § 81-1-11.5-6; Person v. Person (1990), Ind.App., 563 N.E.2d 161, 163, trans. denied. For purposes of I.C. § 81-1-11.5-6, "residence" is synonymous with "domicile," which has been defined as the "place where a person has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning." Id. at 164 (quoting In re Marriage of Rinderknecht (1977), 174 Ind.App. 382, 386, 367 N.E.2d 1128, 1131). The domicile of a wife follows that of her husband unless her intent and physical presence indicate that she has chosen another. Id. The issue of domicile is a contextual determination to be made by the trial court upon a consideration of the individual facts on a case-by-case basis. State Election Board v. Bayh (1988), Ind., 521 N.E.2d 1313, 1318.

Once gequired, domicile is presumed to continue. Id. at 1317. A person who temporarily leaves his place of residence with the intention of returning has not lost his original residence. Id. A self-serving statement of intent is not sufficient to establish that a new domicile has been acquired. Id. at 1818.

When Libby filed the dissolution petition, she bore the burden of proving domicile in Indiana for the preceding six months. See Person, 563 N.E.2d at 164. Scott argues that the parties established domicile in Flori*356da when they purchased their Orlando house. The uncontroverted evidence as outlined in the FACTS section supports his argument. Libby has repeatedly declared herself to be a Florida resident. She has taken advantage of the tax consequences of such a declaration. She has declared herself eligible for the household exemption and registered the family's vehicles in that state. Our courts should not permit litigants to affirm their home to be in Florida, but thereafter permit a recantation to bypass the waiting period under the dissolution statute to acquire jurisdiction more quickly.2

Based on the evidence favorable to the judgment and the uncontradicted evidence, we have a firm conviction that a mistake has been made. The court's determination of domicile is clearly erroneous. Indiana lacks subject matter jurisdiction. Therefore, the court lacked authority to consider the dissolution petition and the request for attorney.3 Accordingly, Libby's petition is dismissed and the attorney fees award vacated.

Judgment reversed.

ROBERTSON, J., dissents with separate opinion: GARRARD, J., concurs.

. Simultaneously, Scott initiated custody proceedings in Florida. The Fifth District Court of Appeals of Florida deferred jurisdiction to Indiana in accordance with the Uniform Child Custody Jurisdiction Act since custody proceedings were first filed in Indiana.

. The dissent laments the result because with the delay of the proceedings, the passage of time renders moot our conclusion that the Skiles at the inception of the proceedings were Florida residents. Libby is now an Indiana resident and Scott has transferred to Washington. The present state of affairs does not justify overlooking that Libby was not an Indiana resident when she filed the dissolution proceedings as required by law.

. Although our decision renders moot the question of the reasonableness of the amount of the attorney fees award, it is hard to envision circumstances that would ever warrant the expenditure of a quarter of a million dollars in preliminary attorney fees to dissolve a marriage. Because of our reversal due to the lack of jurisdiction, we cannot proceed to fully examine the propriety of the award.