Custody of Helwig, In re

• Citation: 442 N.E.2d 1035
• Decision Date: 15 December 1982
• Docket Number: 2-1180A360,Nos. 1282S483,s. 1282S483
• Parties: In re the CUSTODY OF Lisa HELWIG and Elaine Helwig, Minors. William D. HELWIG, Respondent-Appellant, v. The Honorable Robert E. KINNEY, Circuit Judge, Circuit Court, Oneida County, Wisconsin, Matilda G. Anderson, Enforcement Requestors-Appellees.
• Court: Indiana Supreme Court

Page 1035

442 N.E.2d 1035

In re the CUSTODY OF Lisa HELWIG and Elaine Helwig, Minors.

William D. HELWIG, Respondent-Appellant, v. The Honorable Robert E. KINNEY, Circuit Judge, Circuit

Court, Oneida County, Wisconsin, Matilda G.

Anderson, Enforcement Requestors-Appellees.

Nos. 1282S483, 2-1180A360.

Supreme Court of Indiana.

Dec. 15, 1982.

Sidney E. McClellan, Muncie, Frank E. Spencer, Indianapolis, for respondent-appellant.

Ronald K. Smith, Muncie, John W. Saari, Rhinelander, Wis., for enforcement requestors-appellees.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Indiana Court of Appeals. The Delaware County Superior Court ordered the petitioner, William D. Helwig, to return to Oneida County, Wisconsin, with his two minor children in order to determine the issue of custody before Judge Kinney of the Oneida Circuit Court. The Court of Appeals, Second District, sua sponte dismissed Mr. Helwig's appeal because the order from the Delaware Superior Court was an appealable interlocutory order and Helwig failed to file the record of proceedings, pursuant to Ind.R.App.P. 3(B), within thirty (30) days of the trial court's ruling. In re Custody of Helwig, Minors, Helwig v. Kinney, (1982) Ind.App., 433 N.E.2d 398.

The issues presented for review are whether the order from the Delaware Superior Court was an interlocutory order and which court entertained jurisdiction over the custody issue. We find that the Court of Appeals was in error when it sua sponte dismissed Helwig's appeal. Therefore, transfer is granted and the opinion of the Court of Appeals is vacated.

Lisa and Elaine Helwig are the two minors involved in the custody fight between William Helwig and his former wife, Matilda. Lisa was born in 1968 and Elaine was born in 1971. Both girls were adopted by William and Matilda out of the Family Children's Service in Fort Wayne, Indiana. The marriage of William and Matilda was dissolved in the Blackford Circuit Court on August 5, 1977. As part of the final judgment of the Blackford Circuit Court, custody of Lisa and Elaine was awarded to Matilda, with instructions by the court not to remove the girls from Indiana and to continue Elaine's treatment for cerebral palsy

at Riley Hospital in Indianapolis. On or about August 8, 1978, Matilda took the children to Massachusetts without the consent of the court and without Mr. Helwig's knowledge. Helwig had to hire a private detective in order to locate Matilda and the children in Berkshire County, Massachusetts. Matilda's attorneys had attempted to locate her in answer to a petition for change of custody Mr. Helwig had filed in September of 1978, but were unable to do so and withdrew their appearance for her. After Matilda was located through the detective agency, she was personally served notice of the filing of the change of custody petition and the date for the hearing on the matter. Matilda failed to attend the hearing on December 13, 1978, at which time the Blackford Circuit Court entered the following order:

"IT IS, THEREFORE, CONSIDERED AND ORDERED BY THE COURT:

1. That the custody of the minor children of the parties, namely, Lisa Helwig and Elaine Helwig, be and the same is hereby awarded to respondent, reserving to petitioner reasonable visitation rights with said children in the State of Indiana at such place and under such circumstances as the Court shall direct.

2. That the order of this Court made and entered on August 5, 1977 requiring respondent to pay support for said minor children is hereby terminated.

3. That this matter is continued for further hearing upon request of the petitioner."

/s/ Bruce C. Bade

Judge of the Blackford Circuit

Court

Helwig took this court order to Massachusetts but was advised by a judge there that he would have to file an action there in order to gain custody of Lisa and Elaine. Helwig later filed an action for custody in Berkshire County but prior to this he attempted in vain to communicate in person and by telephone with his children. Matilda called the police, claiming that Helwig was harassing her. Before any action could be taken by the Massachusetts courts on the custody matter, however, Matilda again secretly removed the children from the state.

Helwig later learned, in November, 1979, that Matilda was living with the children in Oneida County, Wisconsin. Matilda had remarried and was now known as Matilda G. Anderson. Helwig hired an attorney in Wisconsin and was told by both the attorney and prosecuting attorney in Oneida County that it was just a matter of going through the formalities and he would have his children. In December, 1979, and January, 1980, Helwig attended two hearings but the matter was not concluded and another hearing was set for April 23, 1980. Helwig was unable to attend this hearing due to the cost involved of traveling back and forth from Indiana to Wisconsin. Helwig later returned to Wisconsin, picked up the children, and brought them back to Indiana where they resided in Delaware County.

On June 3, 1980, Wisconsin counsel for Matilda Anderson notified Judge Robert Barnet of the Delaware County Superior Court that a request was being forwarded by Judge Robert Kinney of the Oneida Circuit Court in Wisconsin, asking for assistance in enforcing Judge Kinney's orders by returning the children to the jurisdiction of the Wisconsin court for purposes of proceeding with the determination of custody. The papers were received by the Clerk of the Delaware Superior Court on June 5, and on June 9, Judge Barnet ordered notice issued to Mr. Helwig to appear, with the children, in Delaware Superior Court on July 10, 1980, at 2:00 p.m. for a hearing. Helwig, through counsel, promptly filed a Motion to Dismiss Proceeding, which stated that jurisdiction was in the Blackford Circuit Court rather than the Delaware Superior Court. This motion to dismiss was overruled on August 14 and Helwig and the children were ordered to appear in the court on August 25. At the conclusion of the August 25 hearing, the following decision was made by the Delaware Superior Court:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that William Helwig is hereby Ordered to Dated at Muncie, Indiana, this 25th day of August, 1980.

return to Oneida County, Wisconsin, with Elaine Helwig and Lisa Helwig, for the purpose of proceeding with a determination of the issue of custody before the Honorable Robert E. Kinney, Circuit Judge of Oneida County, Wisconsin, within ten days of this Order.

/s/ Robert L. Barnet

Robert L. Barnet-Judge"

Helwig filed a motion to correct errors on September 4 and on October 3 he filed an amended motion to correct errors. On October 28, Judge Barnet overruled the amended motion and ordered Helwig into court the following day to show cause why he should not be punished for contempt of court. Judge Barnet found Helwig in indirect civil contempt and ordered him committed to the custody of the sheriff, but granted a stay to allow him time to request an appeal from the Indiana Court of Appeals. Helwig subsequently filed a verified application for stay and supersedeas with the Court of Appeals, which was granted. The Court of Appeals dismissed Helwig's appeal, holding the order by Judge Barnet was an interlocutory order, and in order to appeal the Delaware Superior Court's decision, Helwig should have filed the record of proceedings within thirty (30) days of the trial court's ruling. Ind.R.App.P. 3(B). The stay order and supersedeas is still in effect pending this petition to transfer.

The first question to be decided is whether the decision of the Delaware Superior Court was a final judgment or an order:

"A 'judgment or decree' has been defined as the final determination of the rights of a party in an action; and an 'order', generally, is a direction of the court preliminary and incidental to final determination. The distinction between an order and a judgment is one of finality, and the question is whether the order is a final determination of the rights of a party." (citations omitted).

Department of State Revenue, Inheritance Tax Div. v. Estate of Callaway, (1953) 232 Ind. 1, 8-9, 110 N.E.2d 903, 906-07.

In Kalleres, et al. v. Glover, Receiver, (1935) 208 Ind. 472, 478, 196 N.E. 679, 682, this Court held:

"A final judgment is one which disposes of the subject matter of the litigation as to the parties so far as the court in which the action is pending has power to dispose of it. Terre Haute R.R. Co. v. Indianapolis, etc., Traction Company (1906), 167 Ind. 193, 78 N.E. 661; Northern Indiana, etc., Telegraph and Cable Company v. Peoples Mutual Telephone Company et al. (1916), 184 Ind. 267, 111 N.E. 4. If the judgment settles and concludes the rights involved, and denies the parties means of further prosecuting or defending the action, it is final."

A final judgment determines the rights of the parties in suit, or a distinct and definite branch of it, and reserves no further question or direction for future determination. Guthrie v. Blakely, (1955) 234 Ind. 167, 170, 125 N.E.2d 437, 438; Pokraka v. Lummus Co., (1952) 230 Ind. 523, 528, 104 N.E.2d 669, 671; Gulf Oil Corp. v. McManus, (1977) 173 Ind.App. 147, 150, 363 N.E.2d 223, 225. Once a judgment is final, the proper method to redress alleged errors is through an appeal. In State ex rel. Crumpacker v. LaPorte Circuit Court, (1975) 264 Ind. 27, 338 N.E.2d 261, an attorney brought an original action, claiming that the trial court had made two orders against him without jurisdiction of his person or the subject matter. The remedy he sought was expungement of the orders. This Court, after finding that the orders were final judgments, ruled that if the orders were preceded by jurisdictional error or were themselves jurisdictionally defective, the same argument used by Helwig in this cause, the proper remedy was by way of appeal. Id. at 29, 338 N.E.2d at 262.

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