Brokus v. Brokus, 3-880A235
| Decision Date | 18 May 1981 |
| Docket Number | No. 3-880A235,3-880A235 |
| Citation | 420 N.E.2d 1242 |
| Parties | Robert Rolando BROKUS, Appellant (Respondent Below) v. Diane Lucille BROKUS, Appellee (Petitioner Below). |
| Court | Indiana Appellate Court |
David L. Hollenbeck and Thomas F. Macke, Blachly, Tabor, Bozik & Hartman, Valparaiso, for appellant.
Roy G. Moutaw, Valparaiso, for appellee.
This appeal arose from an order granting a dissolution of marriage in which Diane Brokus was awarded custody of the parties' three minor children.
Robert (Robert) and Diane (Diane) Brokus were married on November 17, 1973. At the time, Robert was a member of the United States Army, stationed at Porter Nike Base in Porter County, Indiana, and Diane was a civilian employed at the base. In October of 1974, after the birth of their first daughter, Sonia, Robert was transferred to Hawaii, and Diane and their daughter joined him there in December of 1974. On June 8, 1976, twin daughters were born to the parties while they were in Hawaii. In September of 1977, Robert was transferred to Fort Rucker, Alabama and was accompanied there by Diane and the three children.
On May 25, 1978, Robert mustered out of the Army in Alabama. The parties' furniture and belongings were shipped by the Army to Sheffield Lake, Ohio, the place where Robert entered the Army. The parties and their children then drove to Sheffield Lake, Ohio and stayed with Robert's parents for two weeks.
On June 10, 1978, the parties and their children left Ohio and came to Diane's mother's residence in Chesterton, Indiana. Soon thereafter, Robert returned to Ohio to find a job and a place for the family to live. Diane and the children remained in Chesterton. During the summer of 1978, Robert periodically visited the family in Indiana. On August 4, 1978, Robert obtained employment in Ohio and sent money and food stamps to Diane and the children in Indiana. On August 23, 1978, Diane sent a letter to Robert discussing his recent employment, money and finding a home to rent.
On September 8, 1978, Diane informed Robert, by letter, that she wanted a divorce. After a discussion, the parties decided not to take any legal action until February. On October 8, 1978, Robert came to Indiana where he sought and obtained permission from Diane to take the children to Ohio for two weeks to visit his mother. On October 20, 1978 he signed an affidavit regarding his desire for custody of the three children. After several telephone calls in which Robert told Diane he could not return the children due to his employment schedule, Diane made arrangements to go to Ohio to pick up the children on November 10, 1978. On November 3, 1978, Robert filed an application to determine custody in Lorain County Domestic Relations Court, Juvenile Division. Diane received notice of the application on November 6, 1978.
On November 14, 1978, Diane filed her petition for dissolution of marriage and a motion for provisional orders and temporary restraining orders without notice in the Porter Superior Court. The Porter Superior Court granted the motion and set the provisional hearing for November 30, 1978. On November 30, 1978, due to a conflict in the court's schedule, the court continued the proceedings until January 10, 1979.
On December 4, 1978, Robert filed a motion for temporary possession of minor children in the Lorain County Domestic Relations Court and was granted temporary custody of the minor children. On January 4, 1979, Robert filed a motion in the Porter Superior Court to dismiss Diane's action for custody. On January 25, the Lorain County Domestic Relations Court conducted a hearing on Diane's motion to dismiss. Her motion was denied and the court ordered the December 4, 1978 order to continue.
On February 22, 1979, Diane went to Robert's home in Ohio and cared for the children. On March 5, 1979, Diane returned to Indiana with the children. On March 14, 1979, Robert filed a motion for writ of assistance. A hearing was held in the Porter Superior Court on March 16, 1979, at which time Robert's motion to dismiss the child custody prayer and his motion for a writ of assistance were both denied.
A final hearing on Diane's petition for dissolution of marriage was held on March 23, 1979. On April 27, 1979, the Indiana trial court entered its order, nunc pro tunc to March 23, 1979, granting final dissolution, awarding custody of the three minor children to Diane and ordering Robert to pay support. On May 21, 1979, the Lorain County Domestic Relations Court entered a final custody decree granting the father custody.
The issues raised in this appeal have been restated as follows:
(1) whether the trial court erred in granting Diane's petition for dissolution of marriage, after finding as fact that she had been a resident of Indiana since June of 1978;
(2) whether the trial court erred in determining custody of the three minor children pursuant to Diane's petition for dissolution of marriage;
(3) whether the trial court erred in determining it had jurisdiction to enter a custody decree under the Uniform Child Custody Jurisdiction Act; and
(4) whether there was an abuse of discretion by the trial court.
Because of the decision of this Court, the other issues raised by Robert on appeal need not be reached in this opinion.
Following testimony at the March 16 hearing that Diane and the children reamined in Porter County, Indiana after coming there June 10, 1978, the trial court found as fact that Diane Brokus had been a resident of Indiana since June of 1978. The trial court further found as fact that the petition for dissolution of marriage was filed on November 14, 1978.
Indiana law in effect in 1978, when Diane filed her petition, stated:
Based upon the judge's findings of fact, it is clear that Diane did not meet the six-month residency requirement before filing her petition.
Under prior law, the residency requirement for divorce petitions was two years residency in the state. While that statute was in effect, this Court decided that residency requirements were jurisdictionally mandatory and failure to prove residency required reversal. Davidson v. Davidson (1950), 120 Ind.App. 253, 90 N.E.2d 821, rehearing denied, 120 Ind.App. 255, 91 N.E.2d 796; Berghean v. Berghean (1943), 113 Ind.App. 412, 48 N.E.2d 1001. The Legislature changed the period of time required to establish residency in Indiana for purposes of marriage dissolutions, however, the effect of the failure to meet those requirements has not changed.
This Court is aware that in the case of In re Marriage of Rinderknecht (1977), Ind.App., 367 N.E.2d 1128, it was decided that a man who was a resident of Hendricks County, Indiana at the time he enlisted in the military service, did not lose that status for the purpose of filing his petition for dissolution of marriage. Diane contends that her situation is analogous to that of Mr. Rinderknecht.
However in the case at hand, the judge heard all the evidence and found as fact that Diane had been a resident of Indiana since June of 1978. After hearing the evidence, he did not find that her status as a resident of Indiana went unchanged while she accompanied her husband to other states. In effect, Diane is asking this Court to reweigh the evidence, and this we will not do. Spall v. Janota (1980), Ind.App., 406 N.E.2d 378.
When the error involved is in the correctness of the trial court's application of the law, the reviewing court must correctly apply the law to the findings of the trial court rather than reconsidering the evidence. Lake Co. Title Co. v. Root Enterprises (1975), 167 Ind.App. 559, 339 N.E.2d 103; Merryman v. Price (1970), 147 Ind.App. 295, 259 N.E.2d 883, cert. denied, 404 U.S. 852, 92 S.Ct. 89, 30 L.Ed.2d 92.
In applying the law correctly to the trial court's findings of fact, it is clear that Diane was not a resident of Indiana for six months prior to filing her petition for dissolution of marriage and, therefore, the trial court did not have jurisdiction to grant the dissolution. It is clear from the record that the trial court was aware of the problem the residency requirements created for Diane. It questioned Diane on this very subject.
Yet, the trial court proceeded to grant the dissolution of marriage. This judgment must be reversed. While the effect of this reversal is distressing to this Court, such blatant disregard of the law by a trial court cannot be upheld.
Robert argues that because the trial court did not have the jurisdiction to grant the dissolution of marriage, it did not have jurisdiction to award custody of the three minor children to Diane.
IC 1971, 31-1-11.5-20 (Burns 1980 Repl.) states:
IC 1971, 31-1-11.5-4(a) pertains to the commencement of a...
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