Johnston v. Johnston, 45A03-0405-CV-234.

• Decision Date: 22 April 2005
• Docket Number: No. 45A03-0405-CV-234.,45A03-0405-CV-234.
• Parties: Joseph JOHNSTON, Appellant-Respondent, v. Terry JOHNSTON, Appellee-Petitioner.
• Court: Indiana Appellate Court

825 N.E.2d 958

Joseph JOHNSTON, Appellant-Respondent, v. Terry JOHNSTON, Appellee-Petitioner.

No. 45A03-0405-CV-234.

Court of Appeals of Indiana.

April 22, 2005.

Glenda Smith, Hamilton, OH, Attorney for Appellant.

OPINION

BAKER, Judge.

Appellant-respondent Joseph Johnston appeals the trial court's judgment ordering him to pay post-secondary education child support for his two children, claiming that the Lake Superior Court lacked personal jurisdiction over him because he had no contacts in Indiana and never waived the issue of jurisdiction. Johnston also argues that the "Petition to Modify Divorce Decree" that was filed by his former wife, appellee-petitioner Terry Johnston, failed to meet the statutory criteria regarding a request for the payment of child support. Concluding that the trial court improperly exercised its jurisdiction over Joseph with respect to the payment of child support, we reverse the judgment and remand this cause to the trial court with instructions that it dismiss Terry's request for support.

FACTS

Joseph and Terry were married on February 14, 1980. Thereafter, on October 17, 1996, Terry petitioned to dissolve the marriage. During the course of the marriage, two children had been born: J.J. — the parties' son — was born on March 29, 1980, and D.J. — their daughter — was born on May 19, 1981.

Joseph did not enter an appearance in the dissolution matter, and he did not participate in those proceedings. Joseph was served with the petition via certified mail at his Columbus, Ohio address. On February 24, 1997, the marriage was dissolved, yet no petition for child support had ever been filed. Thus, no order regarding child support payments was entered into the record. However, the parties apparently had entered into an informal agreement regarding Joseph's payment of child support that presumably was to cease when the children turned eighteen or nineteen years old. Joseph alleged that he had "voluntarily paid child support until the last child finished high school." Appellant's App. p. 26.

On April 13, 2000, Terry filed a petition to modify the dissolution decree, where she sought educational support for D.J. and J.J. from Joseph. At that time, both children were college students. D.J., who was nineteen years old, attended Purdue Calumet in Indianapolis in 1999 and 2000. Twenty-year-old J.J. attended Purdue University in Lafayette and, at the time of the hearing, was in his junior year. However, J.J. was compelled to withdraw from the current semester "because of no money" and academic deficiencies. Tr. p. 29, 35-36. It was also established at the time of the hearing that D.J. had one child, was pregnant with another, and was attending Commonwealth College. In response to Terry's petition to modify, Joseph moved to dismiss for lack of jurisdiction on the grounds that he: (1) never lived in Indiana; (2) never lived in a marital relationship in Indiana; (3) was never married in Indiana; and (4) never waived jurisdiction in favor of Indiana. Joseph also asserted that, although Indiana law continues child support throughout college in most cases, "Ohio child support ends at age eighteen (18)." Appellant's App. p. 26.

While the trial court set a hearing on the petition, Joseph filed a second motion to dismiss on July 30, 2002, on the grounds of improper procedure, emancipation and laches. In particular, Joseph contended that he voluntarily paid child support in the amount of $240 per month until both children had completed high school, that J.J. maintained his own apartment in Lafayette for the past three years, that J.J. has received financial aid, had been employed, and had received "intermittent" support. Appellant's App. p. 38. Joseph also alleged that D.J. has been "in and out of college since age 18," was not currently in college, and had a child of her own. Appellant's App. p. 38-39. Thus, Joseph asserted that because J.J. has not been under the care or control of either parent for at least three years, he should be found emancipated. Also, D.J. should be found emancipated because she is over eighteen years old, has not attended school the last four months "and is or is capable of taking care of herself." Appellant's App. p. 39.

Joseph's counsel indicated to the court that "they were only interested in a decision on the personal jurisdiction issue so that they could act accordingly." Tr. p. 8. Nonetheless, a hearing commenced on September 30, 2002 "on all pending matters." Tr. p. 4. Neither Joseph nor his counsel appeared at that hearing. But the trial court learned — through Terry's counsel — that Joseph's counsel is his wife, and that "Glenda Smith contacted the Court via telephone and advised the Court that it would be [a] hardship for [Joseph] to appear at the scheduled hearing because [Joseph's] wife had had a C-section surgery two weeks preceding the scheduled hearing." Appellant's App. p. 28. Following that hearing, an order was entered on October 4, 2002, where it was determined, among other things, that the trial court

has personal jurisdiction over [Joseph] because [Joseph] ... filed a responsive document that has the effect of waiving a contest to personal jurisdiction over him. One document that [Joseph] had filed with the Court was the Verified Joint Notice of No Contested Issue and Waiver of Final Hearing; thus, the Court has personal jurisdiction under I.C. § 31-18-2-2(2)(C).

Appellant's App. p. 31. It was also determined that Joseph had tendered discovery requests to Terry regarding the emancipation of the children, and that he had moved for sanctions for Terry's noncompliance with the discovery. Appellant's App. p. 31. The trial court commented at the hearing that

Attorney Smith has been signing the documents as the attorney for Mr. Johnston and then she files with the Court on October 13, it's dated October 15, 2002 where she then enters her appearance for the purpose of contesting personal jurisdiction. She can't have it both ways.

Tr. p. 7.

On October 15, 2002, Joseph's counsel filed an appearance in this action "for the sole purpose of contesting personal jurisdiction." Appellant's App. p. 50. Joseph also submitted a proposed order and judgment on the pleadings with respect to the motion to dismiss that had been filed. Another order issued by the trial court — dated October 18, 2002 — denied the motion for judgment on the pleadings and ordered Joseph to pay $150 in attorney's fees to Terry's counsel. The trial court did not immediately rule on the motion to dismiss. Rather, another hearing was conducted on November 15 regarding the support issues that Terry had presented. While Joseph had notice of that hearing, neither he nor his counsel appeared.

In the end, after hearing the evidence with regard to college expenses that the children had incurred, the trial court stated on the record that Joseph "needs to pay two-thirds of all tax bills and he is ordered to pay two-thirds of his child, [J.J.'s] college and two-thirds for his daughter." Tr. p. 44. The trial court also stated that it would issue a wage withholding order to have the amount taken directly from Joseph's wages.

Sometime after this hearing, Joseph's counsel telephoned the Lake Superior Court Clerk's Office to see what had transpired in the case. That office informed her that the last entry that had been made in the matter was a wage assignment. Joseph's counsel then contacted Terry's attorney, whereupon he faxed her a copy of an order granting Terry's petition to modify the dissolution decree. The order affirmed that Joseph was to pay two-thirds of all past bills incurred by J.J. while he attended college, as well as his current college bills. Joseph was also ordered to pay two-thirds of the college expenses for D.J. The order went on to state that: "The Court finds that the past amounts have (sic) for [J.J.'s] college are $7,390.00. . . . The Court finds that the past amounts for [D.J.'s] college have been $1,735.00.... Thus, Respondent, Joseph... has an arrearage of (2/3) of $1,735.00... for [D.J.]." Appellant's App. p. 64. Following the entry of this order, Terry's counsel mailed a verified motion for contempt citation and proposed orders on May 3, 2004, as a result of Joseph's failure to pay the $150 attorney fee amount. Joseph now appeals.

DISCUSSION AND DECISION

We note at the outset that Terry has filed no appellee's brief in this case. This court has previously held that when the appellee fails to file a brief on appeal, we may in our discretion reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. See Ward v. Ward, 763 N.E.2d 480, 481 (Ind.Ct.App.2002). This rule was established for our protection so that we can be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id.

I. Lack Of Jurisdiction

In considering Joseph's argument as to the lack of jurisdiction, we note that the existence of personal jurisdiction over a defendant is a constitutional requirement to rendering a valid judgment. Anthem Ins. Co. v. Tenet Healthcare, 730 N.E.2d 1227, 1237 (Ind.2000). Personal jurisdiction either exists or it does not, and its existence is a question of law that we review de novo. Id. Accordingly, we owe no deference to the trial court's determination that it had jurisdiction over Joseph. Id. Furthermore, a challenge to personal jurisdiction may be raised either as an affirmative defense in the answer to the complaint or in a motion to dismiss. In either case, once the party contesting jurisdiction challenges the lack of personal jurisdiction, the plaintiff must present evidence to show that there is personal jurisdiction over the defendant. However, the defendant bears the burden of proving the lack of personal jurisdiction by a preponderance of the evidence, unless the lack of jurisdiction is apparent on the face of the complaint. Id. at 1231.

We...