Beach v. Beach, 49A02-9206-CV-276

• Decision Date: 07 November 1994
• Docket Number: No. 49A02-9206-CV-276,49A02-9206-CV-276
• Citation: 642 N.E.2d 269
• Parties: H. Stanley BEACH, Appellant-Respondent, v. Rose BEACH, Appellee-Petitioner,
• Court: Indiana Appellate Court

Page 269

642 N.E.2d 269

H. Stanley BEACH, Appellant-Respondent, v. Rose BEACH, Appellee-Petitioner,

No. 49A02-9206-CV-276.

Court of Appeals of Indiana Second District.

Nov. 7, 1994.

Murray J. Feiwell, Lisa Kay Decker, Feiwell & Associates, Indianapolis, for appellant.

Franklin I. Miroff, Monty K. Woolsey, Miroff, Cross & Ruppert, Indianapolis, for appellee.

OPINION

SULLIVAN, Judge.

H. Stanley Beach (Stanley) appeals from the denial of his Motion to Dismiss for Lack of Subject Matter Jurisdiction in a support action brought by Rose Beach (Rose), his former wife, and from the trial court's order requiring him to continue paying spousal maintenance. ¹ Upon appeal, Stanley presents the following Issues for review, which we restate:

I. Whether an Indiana court has subject matter jurisdiction in a spousal support or maintenance action brought by a mother living in Illinois with her adult child, who is the beneficiary of child support payments, against a father living in Indiana;

II. whether a pleading entitled "Petition to Docket" is sufficient to confer subject matter jurisdiction upon an Indiana trial court over an Illinois dissolution decree;

III. whether an Indiana court may modify an out-of-state dissolution decree; and

IV. whether a clause purporting to terminate a support obligation for lack of timely notice of compliance with conditions will operate to terminate the duty if notification is given two weeks late?

On June 30, 1988, the Beaches' marriage was dissolved by order of the Circuit Court of Cook County, Illinois. Under the decree, Stanley was to pay spousal maintenance to Rose in the amount of $400.00 per month. ² Stanley's maintenance obligation was to be terminated upon the happening of one of six events, including Rose's remarriage, or cohabitation with a male subsequent to the dissolution. The decree also provided:

"The Wife shall notify the Husband annually in writing on the anniversary date of the entry of a Judgment herein [June 30, 1988] that she has remarried or is not cohabitating pursuant to A.2 hereof. The Wife's failure to do this shall terminate the [$400.00 maintenance] payment provided for in subparagraph A hereof." Record at 24.

On June 13, 1990, the above provision was modified by entry of an Agreed Order, purportedly signed by Stanley and Rose. The Agreed Order provides:

"IT IS HEREBY ORDERED

1. The respondent [Stanley] shall pay to petitioner upon entry of this order the sum of $2,800.00, which sum represents payment in full of any maintenance owed to petitioner by respondent for the period prior to May 31, 1990.

2. Further, upon entry of this order, respondent shall pay an additional $400.00 representing the maintenance payment due from respondent on June 1, 1990.

3. Respondent shall commence regular payment of maintenance, as per the original Judgment, on July 1, 1990.

4. Article II, Paragraph D of the Judgment for Dissolution of Marriage shall be modified to read as follows:

'The Wife will notify the Husband annually, by certified mail, return receipt, with a receipt and postmark dated between June 1 and June 15 of each year, that she has not remarried or is not cohabitating pursuant to Paragraph A 2 of Article II herein. The Wife's failure to do this, except in the case of Wife's incapacity due to serious illness, shall permanently terminate the payment of any additional maintenance pursuant to this Judgment for Dissolution of Marriage or under the Illinois Marriage and Dissolution of Marriage Act.'

5. The notice referred to in the above Paragraph shall be waived for the year 1990, and the notice requirement shall commence with the period June 1 to June 15, 1991.

6. Simultaneously, with this order, the Court shall enter a proposed QUADRO order, pursuant to the Judgment for Dissolution of Marriage. Respondent shall promptly provide petitioner's attorney with the name and address of the appropriate pension plan trustees for submission and review of said QUADRO.

7. Each party shall be responsible for his or her own attorney's fees.

8. Except as modified herein, the Judgment for Dissolution of Marriage stands as is.

/s/ Rose Beach, by Robert Schmidt atty.

/s/ Stanley Beach" Record at 5-6.

On July 2, 1991, pursuant to the dissolution decree, Rose sent notification via certified mail that she was neither remarried nor cohabitating. Stanley was notified on July 7 ³ that certified mail had been received. He picked up the letter from the post office on July 9. However, because he had not received notification by the June 15 deadline imposed in the Agreed Order, Stanley ceased paying maintenance beginning with the check he should have sent on July 1, 1991.

On November 19, 1991, Rose filed a pleading entitled "Petition to Docket" in the Marion County Superior Court requesting that the court "docket" certain Orders of the Cook County Circuit Court which she had attached to her Petition, and which pertained to the dissolution of her marriage to Stanley. Said orders included the Agreed Order in controversy, a Qualified Domestic Relations Order, the Judgment of Dissolution of Marriage, and a June 30, 1988 Agreed Order pertaining to their adult son. ⁴

Contemporaneous with the filing of the Petition to Docket, Rose filed two other petitions. She filed a Petition for Contempt, alleging that Stanley had failed to make maintenance payments since June of 1991, and seeking payment of the alleged arrearage. In addition, Rose filed a Petition for Modification, alleging that the parties' adult child "is physically disabled as per the Orders entered by the Circuit Court of Cook County, Illinois, and is entitled to child support in an amount dictated by the Guidelines of the State of Indiana." Record at 42. ⁵ Stanley answered on December 13, 1991, by entering an appearance for the purpose of challenging the Marion County Superior Court's jurisdiction, and by submitting a Motion to Dismiss for Lack of Subject Matter Jurisdiction.

On February 28, 1992, the Marion Superior Court entered an order stating that it had jurisdiction of the controversy. The court also addressed the merits of Rose's argument that the modified forfeiture provision contained in the June 13, 1990 Agreed Order did not operate to terminate Stanley's obligation to pay maintenance:

"[T]he intent of the provision regarding maintenance and notification to Respondent [Stanley] was to ensure that Respondent would not be paying maintenance to the Petitioner if she were remarried or cohabitating with someone. The evidence conflicted regarding whether the Petitioner was aware of the new agreement entered in this cause providing that she give notice to the Respondent between June 1 and June 15 of each year regarding whether she was remarried or cohabitating with someone. Petitioner testified that she did not recall the entry of that agreement, nor did she recall being notified promptly of the date change. Respondent testified that he was aware of the entry a few days after it had been submitted and signed. The agreed entry was submitted to this Court, and this Court notes that neither party signed the document. In fact, it was signed on behalf of each party by their respective attorneys.... ⁶

4. The evidence indicated that the intent of the paragraph of the notification provision was to ensure that Respondent would not pay Petitioner the maintenance should she be remarried or cohabitating with someone. Although the notice provided by Petitioner was mailed one day after the deadline, this Court feels the spirit of the provision remains intact. Petitioner is not remarried or cohabitating with someone, and the Respondent has not been unduly prejudiced in any way.

5. The Respondent is in arrears in payments of maintenance.... Respondent is ordered to pay to the Petitioner the amounts he is in arrears at the rate of an additional $150.00 per month until said arrearage is paid in full.

* * * * *

8. The Court hereby orders the parties to adhere to the June 1 to June 15 time-frame as set out in the Agreed Entry henceforth." Record at 74-75.

In effect, the trial court found that 1) it had jurisdiction, 2) the forfeiture clause of the Agreed Order had not been triggered, and 3) Stanley was in arrears in the amount of maintenance he had failed to pay after June 1991. It is from this order which Stanley appeals.

I. Subject Matter Jurisdiction

Stanley argues that "[t]he Circuit Court of Cook County, Illinois retains exclusive jurisdiction to hear proceedings to enforce its Judgment of Dissolution of Marriage and subsequent Agreed Entry, where Wife and the parties' adult son, who is the subject of child support, both continue to reside in Cook County, Illinois." Brief of Appellant at 8.

In support of his argument, Stanley offers Smith v. Smith (1992) 1st Dist. Ind.App., 594 N.E.2d 825. In Smith, the marriage of husband and wife was dissolved by order of an Indiana court. The court awarded custody of the children to wife. Thereafter, wife and the minor children moved to Florida and brought an action in a Florida court seeking modification of custody and visitation. Our First District held that Indiana, not Florida, had jurisdiction to modify the original decree under the Uniform Child Custody Jurisdiction Act (UCCJA). Indiana's version of the UCCJA is codified at Indiana Code 31-1-11.6-1 et seq. (Burns Code Ed.1987 & Supp.1994) and is called the Uniform Child Custody Jurisdiction Law (UCCJL). The issue of modification of a foreign custody determination is specifically addressed in the UCCJL, see I.C. 31-1-11.6-14 (Burns Code Ed.1987), and that provision guided our First District in its determination. However, the instant case does not involve a custody dispute, thus the UCCJL does not apply. See I.C. 31-1-11.6-2(2). Rather, this is a spousal support action, and the relevant statutory guidelines, including a description of the extent and nature of a trial court's jurisdiction, are found in the Uniform Reciprocal...