Campbell v. Campbell
| Citation | 180 Ind.App. 351,388 N.E.2d 607 |
| Decision Date | 26 April 1979 |
| Docket Number | No. 1-1178A332,1-1178A332 |
| Parties | Linda D. CAMPBELL, Appellant (Respondent Below), v. Michael CAMPBELL, Appellee (Petitioner Below). |
| Court | Court of Appeals of Indiana |
Curtis M. Jacobs, Madison, Cooper, Cox, Jacobs & Kemper, for appellant.
Neil R. Comer, Comer & Schuerman, Osgood, for appellee.
Respondent-appellant Linda D. Campbell (Linda) appeals from a trial court's ruling granting a change in custody of two of three minor children to petitioner-appellee Michael Campbell (Michael).
Michael and Linda were married, graced with three children and resided in Indiana for several years. Marital discord resulted in the dissolution of the unity in a proceeding in an Indiana court with the award of all the children to Linda. The instant action was commenced by Michael with a petition to modify custody on August 17, 1978, shortly after Linda and the three children had moved to Texas. Michael apparently then moved to Florida and accepted employment and began negotiations for the purchase of a residence. Nevertheless, the proceedings continued in this State and resulted in the trial court granting two children to Michael and one to Linda.
Unfortunately, it appears that neither party saw fit to bring before the trial court the import of the Uniform Child Custody Jurisdiction Law (the Act), Ind.Code 31-1-11.6-1, Et seq. And, although the parties have not briefed the issue, we are compelled to remand the case in order to further the laudable objectives of the Act and to bring to the attention of the practicing bar the necessity, in jurisdictional and practical terms, of complying with and implementing the provisions of the Act.
We believe that failure to even consider, let alone comply with the Act goes to the very essence of the trial court's power to adjudicate a child custody dispute; that is, the threshold requirements of the Act are directed to the subject matter jurisdiction of the court. As such, the lack of such jurisdiction may be raised at any time by the parties, or Sua sponte by a court of review. Decatur County Rural Electric Membership Corporation v. Public Service Company, (1971) 150 Ind.App. 193, 275 N.E.2d 857. Subject matter jurisdiction cannot be imposed by the consent of the parties (Decatur County, supra ), and must be derived from statute or the Constitution. Farley v. Farley, (1973) 157 Ind.App. 385, 300 N.E.2d 375. It differs from jurisdiction over the particular case which may be waived. See Board of Trustees of Town of New Haven v. City of Fort Wayne, (1978) Ind., 375 N.E.2d 1112; Public Service Company of Indiana, Inc. v. Decatur County Rural Electric Membership Corporation, (1977) Ind.App., 363 N.E.2d 995.
In this case we believe the Act is intended to be the exclusive source of authority to adjudicate a custody dispute. The Act creates a two-tier approach to the issue of jurisdiction. The first contained in IC 31-1-11.6-3, is clearly intended to establish the general class of custody cases that will be within the trial court's jurisdiction. IC 31-1-11.6-3 provides:
Jurisdiction. (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 the commencement of the proceeding, or (B) had been the child's home state within six (6) months before commencement of the proceeding and the child is absent from this 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; or
(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; or
(3) The child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; 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.
We believe this first level of analysis goes to the subject matter jurisdiction of the court for several reasons. 1 First, the title of the Act expressly refers to jurisdiction. Second, subsection (a) states that a court has jurisdiction If the case comes within the enumerated paragraphs (1)-(4). 2 Consistent therewith, subsection (b) states that jurisdiction may not be Conferred by certain facts and subsection (c) speaks in terms of a prerequisite to jurisdiction. Third, one of the purposes of the Act is to "(a)void jurisdictional competition . . . ." IC 31-1-11.6-1(a)(1). Fourth, the Res judicata effect of a custody decree is contingent upon the court having jurisdiction under IC 31-1-11.6-3. IC 31-1-11.6-12. Fifth, this State is not required to give effect to a foreign decree unless such decree was entered under factual circumstances sufficient to satisfy the jurisdictional requirements of the Act. IC 31-1-11.6-13; See Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975). 3
The second jurisdictional hurdle is embodied in IC 31-1-11.6-7 which provides:
Inconvenient forum. (a) A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(b) A finding of inconvenient forum may be made upon the court's own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the child's home state;
(2) If another state has a closer connection with the child and his family or with the child and one (1) or more of the contestants;
(3) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate; and
(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 1 of this chapter.
(d) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
(e) If the court finds that it is an inconvenient forum and that a court of another state is a more...
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