Funk v. Macaulay

• Decision Date: 12 December 1983
• Docket Number: No. 2-1281-A-412,2-1281-A-412
• Parties: Christopher M. FUNK, Appellant (Defendant), v. Linda MACAULAY, Appellee (Plaintiff).
• Court: Indiana Appellate Court

Page 223

457 N.E.2d 223

Christopher M. FUNK, Appellant (Defendant), v. Linda MACAULAY, Appellee (Plaintiff).

No. 2-1281-A-412.

Court of Appeals of Indiana,

Second District.

Dec. 12, 1983.

E. Kent Moore, Moore, Sandy, Moore & Deets, Lafayette, for appellant.

Thomas W. Munger, Lafayette, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant Christopher M. Funk (Funk) seeks reversal of a trial court decision finding him in contempt of court for interfering with the custodial rights of Linda Macaulay (Macaulay), focusing his argument on the trial court's jurisdiction under the Uniform Child Custody Jurisdiction Act [hereinafter cited as the UCCJA] and the sufficiency of the evidence.

We affirm.

FACTS

In 1971, the Tippecanoe Superior Court entered a divorce decree that awarded Macaulay custody of the parties' two minor children, provided Funk with visitation rights, and ordered Funk to pay child support. Since the divorce, Funk has continued to reside in Indiana. Macaulay and the children, however, established permanent residence in California in 1972.

There has been a running battle between the parties for more than ten years. Both Funk and Macaulay have been found in contempt by Indiana courts for either "child snatching", abuse of visitation, or denial of visitation. Multiple claims and counterclaims for modification of visitation, custody, and support have also been filed by both parties in Indiana.

The chain of events resulting in this appeal began when Funk sought modification of custody in Tippecanoe Superior Court in 1981. Later, he dismissed the petition and refiled it in California (the only contact with the California courts). Before the California custody modification cause was heard, Macaulay filed the present contempt action. Funk's allegedly contemptuous acts included telephoning the children daily in order to encourage the son's truancy and both children's abusive behavior toward their mother. A motion to dismiss for lack of jurisdiction was denied, and Funk was found to be in contempt. ¹

ISSUES

Funk presents two issues which we have restated as follows:

1. Did the trial court properly exercise jurisdiction over the contempt proceeding under the UCCJA and the Parental Kidnapping Prevention Act [hereinafter cited as the PKPA]?

2. Was there sufficient evidence to support the contempt judgment?

DECISION

ISSUE ONE--Did the trial court properly exercise jurisdiction over the contempt proceeding under the UCCJA and the PKPA?

PARTIES' CONTENTIONS--Funk posits that this custody proceeding falls within the guidelines of the UCCJA under which California is the proper jurisdictional situs. Macaulay counters that Indiana either has continuing jurisdiction under the UCCJA or may continue to enforce its prior custody order until California modifies the provisions.

CONCLUSION--The trial court properly exercised its continuing jurisdiction over the contempt proceeding under the UCCJA and the PKPA.

To reach our conclusion, we must hurdle two obstacles. The first is whether the UCCJA applies to a contempt proceeding without an accompanying custody modification petition. Because we conclude that it does, our second obstacle is whether the provisions of the UCCJA and the PKPA allow Indiana to exercise jurisdiction.

We face a somewhat novel posture of events in that we must decide whether the UCCJA was intended to apply to a contempt proceeding which is not joined with a petition for modification of custody or visitation. In the past, some courts have taken the position that they may grant relief because they have continuing jurisdiction by virtue of their inherent contempt powers to punish disobedience of or ensure compliance with their earlier orders. See Hogan v. Hogan, (1972) 29 Ohio App.2d 69, 278 N.E.2d 367; Brocker v. Brocker, (1968) 429 Pa. 513, 241 A.2d 336, cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773. We find this view of continuing jurisdiction improper in light of the express provisions and intent of the UCCJA.

The UCCJA was promulgated to define which state has jurisdiction "to make a child custody determination by initial or modification decree." Ind.Code 31-1-11.6-3 (1977) (emphasis supplied). A "custody determination" is defined as "a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person." IC 31-1-11.6-2(2) (1977) (emphasis supplied). This language is unambiguous--the UCCJA covers all cases involving issues of custody and visitation.

To prevent repetition of Funk's contemptuous behavior, Macaulay sought to limit his telephone conversations with the children to Sundays. Record at 16-17. We recognize that telephone communications are an important facet of "visitation rights" in a parent-child relationship separated by hundreds of miles. Therefore, the relief sought in Macaulay's contempt action comes within the express provisions of the UCCJA in that it seeks to modify visitation rights. Seeking such relief under the guise of a show cause hearing does not affect our decision. We conclude that, when a contempt proceeding is "inextricably interwoven" with matters of custody and visitation, the UCCJA governs any jurisdictional issue. See Siegel v. Siegel, (1981) 84 Ill.2d 212, 228, 49 Ill.Dec. 298, 305, 417 N.E.2d 1312, 1319. This view ensures that all custody and visitation matters are litigated in the proper forum, as set forth in the UCCJA.

Having decided that this case falls within the domain of the UCCJA, we now concentrate on selection of the correct jurisdiction. Instead of being limited to concepts of comity and full faith and credit, our "legislature has adopted a scheme to combat the harrassing and vindictive use of custody proceedings with the concomitant result of inconsistent judgments among the several states." Campbell v. Campbell, (1979) 180 Ind.App. 351, 357, 388 N.E.2d 607, 610. That scheme, the UCCJA, provides the following ground rules for choosing a jurisdiction:

"(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction."

IC 31-1-11.6-14 (1977) (emphasis supplied) [hereinafter cited as section 14]. Also, the UCCJA defines jurisdiction by way of two alternate methods commonly referred to as the "home state test" and the "significant connections test":

"(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 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."

IC 31-1-11.6-3 (emphasis supplied) [hereinafter cited as section 3].

Indiana courts have been called upon to apply section 14 and section 3 in the past, but generally in the context of deciding whether Indiana had jurisdiction to make an initial custody decision or to modify the initial custody decree of another state. See, e.g., In re Marriage of Hudson, (1982) Ind.App., 434 N.E.2d 107, cert. denied, --- U.S. ----, 103 S.Ct. 1187, 75 L.Ed.2d 433; In re Marriage of Cline, (1982) Ind.App., 433 N.E.2d 51; Brokus v. Brokus, (1981) Ind.App., 420 N.E.2d 1242 (cases in which issue was jurisdiction over initial custody proceedings); In re Lemond, (1979) Ind.App., 395 N.E.2d 1287, trans. denied (case in which issue was jurisdiction over modification of initial decree of another state). We must now employ section 14 and section 3 to decide whether Indiana has continuing jurisdiction to modify or refuse to modify its own initial custody order.

We find guidance in the words of Professor Bodenheimer, the reporter for the commission which drafted the UCCJA: ²

"The UCCJA was designed 'to bring some semblance of order into the existing chaos.' In order to do so, the Act had to go further than simply codifying the principle of recognition of out-of-state custody decrees. It had to strengthen the continuing jurisdiction of the state of the initial decree; it had to insulate that jurisdiction from out-of-state interference; in other words, it had to bestow legal effect upon that continuing jurisdiction which operates beyond the state borders.

Accordingly, Section 14 of the UCCJA provides that once 'a court of another state has made a custody decree, a court of this state shall not modify that decree.' In other words, the continuing jurisdiction of the prior court is exclusive. Other states do not have jurisdiction to modify the decree. They must respect and defer to the prior state's continuing jurisdiction. Section 14 is the key provision which carries out the Act's two objectives of (1) preventing the harm done to children by shifting them from state to state to relitigate custody, and (2) preventing jurisdictional conflict between the states after a custody decree has been rendered.

....

Modification jurisdiction ... is governed...