Hays v. Hockett, Court of Appeals Case No. 62A01–1612–DR–2910
| Decision Date | 25 January 2018 |
| Docket Number | Court of Appeals Case No. 62A01–1612–DR–2910 |
| Citation | 94 N.E.3d 300 |
| Parties | Michael HAYS and Caryn Hays, Appellants–Intervenors, v. Amanda HOCKETT, Appellee–Petitioner. |
| Court | Indiana Appellate Court |
Attorneys for Appellant : Crystal G. Rowe, Alyssa C.B. Cochran, Kightlinger & Gray, LLP, New Albany, Indiana
Attorneys for Appellee : Jenny R. Buchheit, Derek R. Molter, Sean T. Dewey, Ice Miller, LLP, Indianapolis, Indiana
[1] Michael and Caryn Hays (the "Hayses") appeal the trial court's order granting custody of B.H. to his mother, Amanda Fisher (f/k/a Amanda Hockett). The Hayses also appeal the trial court's award of $1,365.00 in attorney fees as being inadequate.
[2] We affirm.
[3] Amanda Fisher ("Mother") and Brandon Hockett ("Father") were married on May 4, 2011, in Tell City, Indiana. A little over one year later, Mother gave birth to their son B.H. Approximately three to four months after B.H. was born, the family moved to Oklahoma where they moved in with Father's mother and step-father, the Hayses. In December 2012, Mother and Father moved out of the Hayses' home into a nearby apartment. After Mother and Father moved, the Hayses continued to regularly watch and take care of B.H.
[4] In February 2015, Mother and Father moved back to Indiana. Mrs. Hays picked up B.H. in May 2015 from Indiana and took him back to Oklahoma so that Mother and Father could work on their marriage. B.H. returned to Indiana to stay with Mother and Father towards the end of June 2015. And on August 24, 2015, Mrs. Hays again picked up B.H. and took him back to Oklahoma. This was only supposed to be a short visit; however, it was prolonged so that Mother and Father could continue to work on their marriage.
[5] Mother left the home she shared with Father on October 10, 2015, and moved in with a friend. The Hayses were scheduled to return B.H. to Indiana in late November, but they postponed the trip due to weather. On December 12, Father left Indiana and returned to live with the Hayses in Oklahoma. Two days later, Mother filed for divorce from Father along with a notice of a provisional hearing in Perry County, Indiana. On December 21, Father filed for divorce in the District Court, First Judicial District of Texas County in Oklahoma (the "Oklahoma court"). Ten days later, Father filed an objection to conducting the provisional hearing and a motion to dismiss for lack of jurisdiction in Perry County, Indiana.
[6] The Oklahoma court held a hearing on Father's divorce petition on January 14, 2016, in which Father was represented by counsel and both he and Mrs. Hays testified. The next day, the Oklahoma court found that neither Oklahoma nor Indiana met the requirements to qualify as B.H.'s home state for jurisdictional purposes. The court also found that B.H. had significant connections in both Indiana and Oklahoma. Therefore, the Oklahoma court abstained from exercising jurisdiction in the case until it heard from Special Judge McConnell whether Perry County would exercise jurisdiction under the "first in time rule," because Mother filed for divorce first.2 A January 20 CCS entry indicates that the Perry County court received communication from Oklahoma, and that it would exercise jurisdiction over the case.
[7] The trial court held the provisional hearings on February 17 and March 30. One day prior to the first hearing, the Hayses filed a motion to intervene in order to seek custody of B.H. On April 12, the trial court issued its provisional order in which it granted the Hayses' motion to intervene and awarded temporary custody of B.H. to the Hayses. In its order, the court stated, Appellant's App. Vol. II, p. 55.
[8] Final hearings were held on September 23 and November 17. On November 21, the trial court issued a detailed decree of dissolution in which it dissolved the marriage between Mother and Father and awarded legal custody of B.H. to Mother. The trial court recognized the Hayses' impact on B.H., set a gradual transfer of custody schedule, and specified that the Hayses should remain a part of B.H.'s life.
[9] On January 10, 2017, the Hayses filed, with this court, a motion to stay the child custody order pending appeal, or in the alternative, to order Mother to provide the Hayses with an all-purpose consent-to-treat form to enable B.H. to receive medical treatment while in their care. On February 3, this court denied the motion to stay, but remanded for the trial court to order Mother to provide the Hayses with an all-purpose consent-to-treat form. Mother provided a consent form on February 13, which the Hayses argued was a limited-consent form, and not an all-purpose consent-to-treat form. As a result, on February 16, the Hayses filed a motion with this court to compel Mother to provide the proper form. The Hayses also requested attorney fees spent pursuing the motion to compel. On February 21, the motions panel of this court issued an order granting the Hayses' request and ordered Mother to provide the all-purpose consent-to-treat form. The order also awarded attorney fees and remanded for the trial court to determine a reasonable amount.
[10] On April 21, the trial court held a remand hearing where counsel for the Hayses produced an attorney-fee invoice for $1,868.50 for pursuing the motion to compel. At the hearing, counsel for the Hayses also submitted an affidavit indicating an additional $4,495.50 in attorney fees spent on the motion to compel remand hearing. In all, the Hayses' counsel requested $6,364.00 in fees. On May 18, the trial court issued an order awarding $1,365.00 in attorney fees to be paid by the Mother in weekly installments of $30.
[11] The Hayses now appeal the custody determination and the amount of attorney fees.
[12] The Hayses first argue that the trial court's custody determination should be reversed because Indiana does not have subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act ("UCCJA").3 Specifically, the Hayses assert that "Oklahoma is the appropriate forum to decide B.H.'s custody." Appellant's Br. at 41. A decision to retain or relinquish jurisdiction under the UCCJA is reviewed for an abuse of discretion. Novatny v. Novatny , 872 N.E.2d 673, 679 (Ind. Ct. App. 2007). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the circumstances before it, or if the court has misinterpreted the law. Tamasy v. Kovacs , 929 N.E.2d 820, 826 (Ind. Ct. App. 2010).
[13] We initially note that there is a conflict in the case law regarding whether the UCCJA confers subject matter jurisdiction; therefore, we take this opportunity to address the issue. In 1990, in Williams v. Williams , 555 N.E.2d 142 (Ind. 1990), our supreme court was adamant that the UCCJA did not confer subject matter jurisdiction.
The source of this competency to decide child custody matters is found in Ind. Code § 31–1–11.5–20 and is an incidental grant of specific authority within the general grant of subject matter jurisdiction to hear actions for dissolution and child support. The jurisdictional limitations imposed by the UCCJA are not equivalent to declarations of subject matter jurisdiction, but rather are refinements of the ancillary capacity of a trial court to exercise authority over a particular case. This exercise of authority is waivable.
Id. at 145 (citation omitted).4
[14] In 2000, our supreme court held that Troxel v. Troxel , 737 N.E.2d 745, 749 (Ind. 2000) (citations omitted). In 2006, our supreme court refined the Troxel court's holding and explained that Indiana trial courts possess two kinds of jurisdiction, subject matter jurisdiction and personal jurisdiction. K.S. v. State , 849 N.E.2d 538, 540 (Ind. 2006). And that "phrases recently common to Indiana practice, like ‘jurisdiction over a particular case,’ confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations." Id. The K.S. court then explained, Id. at 542 (emphasis in original).
[15] In light of our supreme court's decisions in Williams , Troxel , and K.S. , from 1990 to 2008, this court consistently held that jurisdiction under the UCCJA does not equate to subject matter jurisdiction, and is therefore waivable. See In re Marriage of B.K. and B.P. , 873 N.E.2d 729, 735 (Ind. Ct. App. 2007), trans. denied ; Lollar v. Hammes , 952 N.E.2d 754, 756 (Ind. Ct. App. 2004) ; Christensen v. Christensen , 752 N.E.2d 179, 184 (Ind. Ct. App. 2001).
[16] Then in 2008 our supreme court decided Stewart v. Vulliet , 888 N.E.2d 761 (Ind. 2008). In Stewart , mother and father were married in Washington and lived there until 2003 when they relocated to Indiana. While in Indiana, mother who was pregnant at the time, filed for divorce from father. After filing for divorce, mother moved back to Washington where the child was born. In subsequent custody proceedings, the question became whether Indiana or Washington had jurisdiction.
[17] In Stewart , our supreme court consistently described this as a question of subject matter jurisdiction stating, "Some...
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