Clark v. Clark

• Citation: 404 N.E.2d 23
• Decision Date: 13 May 1980
• Docket Number: No. 1-679A159,1-679A159
• Parties: Wanda Sue CLARK, Respondent-Appellant, v. Gary Manson CLARK, Petitioner-Appellee.
• Court: Court of Appeals of Indiana

Page 23

404 N.E.2d 23

Wanda Sue CLARK, Respondent-Appellant, v. Gary Manson CLARK, Petitioner-Appellee.

No. 1-679A159.

Court of Appeals of Indiana, First District.

May 13, 1980.

Paul J. Watts and C. Laurence Yinger, Spencer, for respondent-appellant.

George B. Mathes, Spencer, for petitioner-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Wanda Sue Clark (Wanda) appeals the order of the Owen Circuit Court transferring custody of her daughter, Kimberly Michelle Clark (Kim), to the girl's father, Gary Manson Clark (Gary).

FACTS

This action arose upon Gary's filing a Petition for Order of Custody and Wanda's filing a Motion for Rule to Show Cause.

Wanda and Gary were married on June 8, 1968; Kim was born July 27, 1971. Wanda petitioned for dissolution of the marriage on April 2, 1976. On June 18, 1976, the Owen Circuit Court entered its Dissolution of Marriage Decree which included a flexible agreement between the parties that while custody of Kim was to be with Wanda, visitation rights were to be worked out at the convenience of the parties. From the time of the divorce in June 1976 until July 1978 Wanda lived in Vincennes, Indiana, moving about within the Vincennes area five (5) times. There was testimony that Wanda had held at least seven (7) jobs from the time of the divorce until January 15, 1979. Wanda obtained an abortion at some point shortly after the divorce and spent the weekend prior to the emergency custody hearing of December 11, 1978, in the intensive care unit of Good Samaritan Hospital in Vincennes, Indiana, as a result of taking too many aspirins. This was the emergency which precipitated Gary's filing his Petition for Order of Custody.

After the divorce Gary continued to live in Spencer, Indiana, moving three (3) times within Spencer until he settled in his current home in 1977. Gary maintained his employment at the Owen County Farm Bureau Co-Operative throughout the time under discussion. Gary and Linda Clark were married on September 3, 1978, after having lived together for over a year with her two (2) children from two (2) previous marriages. Kim lived with Gary and Linda in June and July of 1978 at Wanda's request while Wanda attended a course in restaurant management at Macomb, Illinois, and while she began training for an assistant manager's position in a Sirloin Stockade restaurant in Terre Haute, Indiana. At an undetermined point toward the middle or end of July 1978 Wanda went to Bowling Green, Kentucky, to take care of her mother, living with her mother and twin sisters in her mother's three bedroom trailer. Wanda took Kim to live with her in Kentucky on July 24, 1978, but because of the crowded living conditions in her mother's trailer asked Gary to pick up Kim and put her in school in Spencer. Gary did so. However, on October 19, 1978, Wanda arrived at Gary's house purportedly to take Kim to Michigan to celebrate Wanda's brother's graduation from the navy, but instead took Kim back to Kentucky to live. Kim spent the Thanksgiving holiday in 1978 with Gary and Linda, but Gary did not see Kim again until he picked her up at Wanda's step-mother's home in Vincennes on December 6, 1978. According to their agreement, Wanda was to call Gary on Saturday, December 9, regarding the time he should return Kim to her; however, Wanda called Friday asking that Gary return Kim to Vincennes at noon Saturday. Because Gary had to work until noon on Saturday, they agreed that Gary could bring her at 2:00 p. m. instead. When he learned on Saturday morning that Wanda had been hospitalized after having taken an excessive number of aspirins on Friday night, Gary refused to take Kim to Vincennes. On Monday, December 11, 1978, Gary filed his Petition for Order of Custody and enrolled Kim in the Spencer Elementary School System. Alleging that an emergency existed, Gary requested that the court assume jurisdiction over Kim, issue a Temporary Restraining Order placing temporary custody of the child with him, and modify the custody decree in his favor. Meanwhile, Wanda filed a Motion for Rule to Show Cause seeking to have Gary punished for contempt of the divorce decree awarding her custody of Kim. An emergency hearing was held beginning at 4:45 p. m. December 11, 1978. The court found that no emergency existed which would justify a temporary change in custody and ordered Gary to return Kim to the custody of her mother. Gary did so and, pursuant to the court's admonition, requested that a hearing be set for a permanent, as opposed to emergency, modification of custody. Said hearing commenced Friday, January 12, 1979, and concluded Monday, January 15, 1979. At the conclusion of the Friday hearing the court ordered

Wanda to bring Kim to Indiana for a visit with Gary on the weekend, but Wanda failed both to bring Kim to Indiana on the weekend and to appear for the conclusion of the custody hearing on Monday. Having heard further evidence, the court transferred custody of Kim to Gary and issued a body attachment for Wanda's arrest, but advised Wanda's attorney that he would set aside the order and reopen the hearing if Wanda could show cause for her non-appearance and failure to comply with the court's order. On March 16, 1979, Wanda through her attorney filed her Motion to Correct Errors requesting either that custody of Kim be returned to her or, in the alternative, that a new hearing be granted. The court scheduled the matter for further hearing on April 9, 1979, and denied Wanda's Trial Rule 76(5) Motion for Change of Venue filed on March 26, 1979. Wanda filed her second Motion to Correct Errors on June 4, 1979, from which she has perfected this appeal.

ISSUES

The issues presented for review by appellant which we have rearranged and consolidated in the aid of discussion are as follows:

1. Whether the trial court made a proper finding of jurisdiction to hear this cause under the Uniform Child Custody Jurisdiction Law;

2. Whether the court erred in denying appellant's Motion for Change of Venue;

3. Whether the court erred in modifying the original award of custody in the absence of a specific finding of a continuing and substantial change in circumstances; in addition, whether the court erred in improperly basing its modification on punitive motives;

4. Whether the court erred in denying appellant's Motion for an Immediate Finding (Motion for Involuntary Dismissal) at the close of plaintiff-appellee's case in chief;

5. Whether the court's denial of appellant's request for a continuance infringed upon her due process rights to a full and fair hearing;

6. Whether the court denied appellant's constitutional rights to due process of law by basing its decision on improperly admitted hearsay evidence;

7. Whether the court erred in denying appellant's Motion for Rule to Show Cause;

8. Whether the court erred by issuing a Body Attachment for appellant.

DECISION

For the reasons set forth in the discussion below, we affirm.

Issue One

We agree with appellant that the court below did not make a proper finding of subject matter jurisdiction pursuant to Indiana's Uniform Child Custody Jurisdiction Law (the Uniform Act), IC 31-1-11.6-1 31-1-11.6-24, as interpreted by this court in Campbell v. Campbell, (1979) Ind.App., 388 N.E.2d 607. In Campbell at 608, Judge Robertson wrote:

"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. At 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."

In the instant case both parties initially acknowledged the subject matter jurisdiction of the Owen County Circuit Court under the doctrine of continuing jurisdiction. This theory was spelled out by our Supreme Court in Stone v. Stone, (1902) 158 Ind. 628, 632, 64 N.E. 86, 87:

"Since the organization of our state government it has been the established policy of the law to regard the minor children of divorced parents as wards of the court in the same general way that minor children of deceased parents are regarded. The nurture and proper training of such children are subjects of vital interest to the State, as well as to the children themselves, and when the family has thus been broken up, and the children taken to other homes and exposed to the mutual animosities and jealousies of their parents, and their happiness and usefulness as citizens endangered, the court granting the divorce must be deemed to have full and continuing jurisdiction, during the minority of such children, to make from time to time such orders and modifications thereof, with respect to their care, custody, and control, as are deemed expedient; the interests of society and welfare of the children, in all such inquiries, being the paramount and controlling consideration."

Under this universally recognized theory of jurisdiction the Owen Circuit Court would continue to retain jurisdiction over custody matters arising from the divorce decree it entered in 1976 throughout the minority of Kim Clark. Therefore, in 1978 when Gary came...