Clark v. Atkins, 3-185

• Decision Date: 18 February 1986
• Docket Number: No. 3-185,3-185
• Citation: 489 N.E.2d 90
• Parties: In re the Marriage of Dianna (Atkins) CLARK, Respondent-Appellant, v. Thomas P. ATKINS, Petitioner-Appellee. A 22.
• Court: Indiana Appellate Court

Page 90

489 N.E.2d 90

In re the Marriage of Dianna (Atkins) CLARK, Respondent-Appellant, v. Thomas P. ATKINS, Petitioner-Appellee.

No. 3-185 A 22.

Court of Appeals of Indiana,

Third District.

Feb. 18, 1986.

James E. Burke, South Bend, for respondent-appellant.

Joseph V. Simanski, Plymouth, for petitioner-appellee.

GARRARD, Judge.

Thomas Atkins (Atkins) and Dianna Clark (Clark) were divorced in 1974. Two children, Raeann and Renee, were born to the marriage, and pursuant to the divorce, Clark received custody.

In 1982 Clark desired to move to Oklahoma with the children to be with her new husband as he prepared for the ministry at Rhema Bible Training Center. The trial court entered an order authorizing Clark to retain custody of the children while living in Oklahoma, but requiring that Clark return them to this state upon her new husband's graduation. It does not appear that this order was appealed.

Clark's husband graduated from Rhema in 1984. However, in 1983 Clark had enrolled in a two year program at the same school, and thus did not wish to return to Indiana. When she informed Atkins that she would not be coming back and that the children did not wish to return for visitation, litigation ensued. ¹

In June, Atkins traveled to Oklahoma armed with a trial court order "reaffirming" its 1982 decree, hoping that the children would return with him. They refused. On August 6, 1984, the trial court conducted hearings and issued a temporary custody decree. Shortly thereafter, Atkins went to Oklahoma with the decree. There was a hearing in Oklahoma, at which Clark either raised certain defenses or attempted to invoke that state's jurisdiction. On each trip Atkins incurred expenses.

In October of 1984 the trial court found Clark in contempt citing:

"a) her refusal to provide visitation as was ordered by the Court

b) her violation of the Court order reaffirming the Petitioner's visitation rights

c) her failure to be responsible for the transportation of the minor children for purposes of visitation

d) her failure to appear at hearing in violation of the notice to appear

e) her efforts to have another Court assume jurisdiction in an attempt to defeat the visitation rights of the Petitioner and to usurp the authority of this Court

f) her failure to return the children to the jurisdiction of this Court after the completion of the purpose stated in the Court's order of May 28, 1982"

It ordered her to pay certain sums to "purge" herself of that contempt. It also authorized her to retain custody of the children but required her to return the children to this state upon her graduation.

In ruling on the motion to correct errors, the trial court modified the existing custody order by granting Atkins and Clark joint legal custody of their children.

Other facts, as necessary, will appear in the body of this opinion. ²

From the October 1984 order Clark appeals. In essence she presents five issues.

I. Did the circuit court have jurisdiction under the Uniform Child Custody Jurisdiction Act to modify its 1982 custody order?

II. Was the trial court's contempt determination contrary to the law?

III. Did the trial court err in calculating damages?

IV. Did the trial court err in restricting Clark's ability to travel under its custody order?

V. Did the trial court err in ordering joint custody of the children?

I.

Did the circuit court have jurisdiction under the Uniform Child Custody Jurisdiction Act to modify its 1982 custody order?

In her reply brief Clark argues that the trial court's order must be vacated since it did not expressly consider the jurisdictional requirements or inconvenient forum considerations controlled by the Uniform Child Custody Jurisdiction Act (hereafter UCCJA).

Since the jurisdictional aspects of the UCCJA have been held to encompass subject matter rather than personal jurisdiction, they can be raised for the first time on appeal.

Furthermore, while not required by the terms of the UCCJA, case law in Indiana has determined that it is error, but not reversible error, for a court not to make an express finding concerning jurisdiction. In re Marriage of Hudson (1982), Ind.App., 434 N.E.2d 107, cert. denied 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 433. In the case before us now, there was no record entry with respect to the trial court's jurisdiction. This was error. However, if the trial court did in fact have jurisdiction, no reversible error was committed.

According to Professor Bodenheimer, Reporter for the Special Committee which prepared the UCCJA, the continuing jurisdiction of the court which first entered a child custody decree is an exclusive jurisdiction, which continues until the child and all the parties have left that state. Indiana has approved this view. Funk v. Macaulay (1983), Ind.App., 457 N.E.2d 223, 226-7, citing Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA (1981), 14 Fam.L.Q. 214. It is uncontested that Atkins has continued to live in this state. Therefore, under Professor Bodenheimer's construction of the act, this state would have exclusive jurisdiction. Further, even under the strict wording of section 3 of the act, ³ this state would have jurisdiction. It appears that the children lived most of their lives in Indiana, and their father still lives here. In addition to these significant connections to this state, Indiana is also the location of the court records concerning the divorce and previous custody determinations, and has available to it via sections 19 ⁴ and 20 ⁵ substantial evidence concerning the children. Thus, the trial court plainly had jurisdiction.

The court's failure to make an express determination under the inconvenient forum provisions contained in section 7 ⁶ of the UCCJA was not raised to the trial court. If jurisdictional it can be raised for the first time on appeal. If not, it has been waived. Under the terms of section 7, inconvenient forum questions only arise when a court has jurisdiction. If it has jurisdiction, but determines that a different forum is in a better position to entertain the litigation, it "... may decline to exercise its jurisdiction at any time before making its decree." Section 7(a). The wording of the act makes plain both that this is a discretionary determination, since the court "may" but is not required to decline jurisdiction, and that being an inconvenient forum does not deprive the court of jurisdiction, since the result is a refusal to exercise jurisdiction. Since being an inconvenient forum does not deprive a trial court of jurisdiction, the matter cannot be raised for the first time on appeal.

II.

Was the trial court's contempt determination contrary to the law?

In various sections of her brief, Clark attacks the trial court's conclusion that she was in contempt for failing to obey its orders. The circuit court listed six reasons that it considered Clark to be in contempt. While she attacks each ground individually, it is obvious that we must construe the order as a whole. Since the trial court based its decision on alternate grounds, we will reverse only if Clark succeeds in showing that no legal or factual basis exists to support the contempt determination.

A.

Did the trial court err in finding Clark in contempt for her failure to obey a child custody order which allegedly violated her constitutional right to travel?

On October 3, 1984 the trial court found Clark in contempt for:

"f) her failure to return the children to the jurisdiction of this Court after the completion of the purpose stated in the Court's order of May 28, 1982"

Clark argues that this was incorrect in that it was based on an unconstitutional child custody order. Since she is attempting to mount a collateral attack on that custody order, we need not reach the merits of the claim. But see part IV, infra.

At all times relevant to this litigation, the law in this state has provided that when a dissolution decree is entered, it becomes an appealable final order. IC 31-1-11.5-9. Under IC 31-1-11.5-22 it is also possible to modify an existing child custody order. While the Marriage Dissolution Act does not state it expressly, Indiana courts deal with such modifications as final orders. Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243.

Thus, both the divorce decree entered in 1974 and the 1982 modification order were final judgments from which no appeal was taken.

Notwithstanding the fact that she chose not to pursue her right to appeal, Clark now asserts that the trial court cannot punish her for her failure to obey its order, since that order allegedly infringes on her constitutional right to travel.

As a general rule, a judgment is subject only to direct, and not to collateral, attack.

A direct attack is a "... proceeding provided for by law for the purpose of avoiding or correcting a judgment ... while an attempt to do the same thing in any other proceeding is a collateral attack...." Benbow v. Studebaker (1912), 51 Ind.App. 450, 99 N.E. 1033, citing Van Fleet, Collateral Attack Section 3.

While collateral attack is allowed if the trial court lacked subject matter or personal jurisdiction, Hamilton v. Ahlemeyer (1967), 250 Ind. 403, 231 N.E.2d 278, 280, it plainly had jurisdiction in 1982, since Indiana was where the parties lived.

Contempt proceedings are not actions designed to correct errors previously made by trial courts. They are intended to vindicate the courts' dignity and to enforce litigants' rights pursuant to court orders. Thus, we cannot inquire into the correctness of the 1982 custody order, as this would be a collateral attack. This is so, even though the questions raised concerning the order are constitutional in nature. Walker v. City of Birmingham (1967), 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210.

The trial court committed no error in using Clark's obvious disregard of its 1982 custody order as a basis for a finding of contempt.

B.

Did the...