Lemond, In re, No. 1-1278A360

Docket NºNo. 1-1278A360
Citation182 Ind.App. 626, 395 N.E.2d 1287
Case DateOctober 30, 1979
CourtCourt of Appeals of Indiana

Page 1287

395 N.E.2d 1287
182 Ind.App. 626
In re the Matter of Michelle LEMOND, a Minor Child.
Jeanene McCORMACK, Petitioner-Appellant,
v.
Earl LEMOND, Respondent-Appellee.
No. 1-1278A360.
Court of Appeals of Indiana, First District.
Oct. 30, 1979.

[182 Ind.App. 627]

Page 1288

David B. Hughes, Hughes & Hughes, Indianapolis, Robert S. LaPlante, Stone & Keck, Evansville, Valentine J. Fleig, Rauch & Fleig, Petersburg, for petitioner-appellant.

Russell E. Mahoney, Thomas C. Gray, Gray, Stratton & Mahoney, Petersburg, for respondent-appellee.

ROBERTSON, Judge.

Petitioner-appellant Jeanene McCormack (Mother) appeals a judgment declaring that respondent-appellee Earl Lemond (Father) is entitled to the physical custody of their daughter, Michelle Lemond.

The factual picture presented to this court displays a paradigm for the issue of whether the exercise of jurisdiction to modify a foreign custody decree pursuant to the Uniform Child Custody Jurisdiction Law, Ind.Code 31-1-11.6-1 Et seq., 1 is proper. The volunteered findings by the court below together with the relevant portions of the record reveal the following sequence of events. Mother and Father were married and living in Hawaii when Michelle was born on May 1, 1968. The deterioration[182 Ind.App. 628] of the marital enterprise culminated in a Hawaiian divorce decree on December 10, 1973, which provided as follows:

[182 Ind.App. 629]

Page 1289

Mother and Father continued 2 their residency in Hawaii and complied with the terms of the decree. Usually, Michelle spent the substantial portion of the summer

Page 1290

months with the parties' grandparents in Pike County, Indiana.

Custodial rights fell into dispute following the Father's return in June, 1977, to Pike County, Indiana. 3 Instead of returning Michelle to Hawaii at summers close, Father enrolled her in a local school. Mother then went to Indiana and deceptively secured Michelle's return. Michelle was thereafter enrolled in and attended school in Hawaii from September, 1977, to May, 1978. But while Mother was in Europe during May, 1978, Father went to Hawaii and brought Michelle back to Indiana. Mother returned from Europe and, after being appraised of this state of affairs, unsuccessfully sought the return of Michelle in Indiana.

On May 19, 1978, Mother filed a petition for the enforcement of the Hawaiian decree (See IC 31-1-11.6-13, -15) and a writ of habeas corpus. Father countered with a petition to modify the Hawaii decree. See IC 31-1-11.6-14. The trial court "denied" both petitions upon concluding that since Father was entitled to physical custody At the time the Hawaiian decree was entered, Father was Still entitled to physical custody. Since we believe the trial court failed to implement the letter and spirit of the Act, we reverse.

We begin our analysis with the relevant purposes of the Act as proclaimed by our legislature. IC 31-1-11.6-1(a) states that it is the intent of the legislature to:

[182 Ind.App. 630] (1) (a)void jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;

(5) (d)eter abductions and other unilateral removals of children undertaken to obtain custody awards;

(6) (a)void re-litigation of custody decisions of other states in this state insofar as feasible; (and)

(7) facilitate the enforcement of custody decrees of other states(.)

The pivotal statute in issue, IC 31-1-11.6-14 provides:

Sec. 14. Modification of Custody Decree of Another State. (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.

Since we are presented with an issue of first impression concerning a uniform act, we look for guidance to the decisions of other states. The Colorado Supreme Court has taken the position that an original action will lie to restrain a trial court from modifying a foreign decree where the foreign state's jurisdiction was and remains proper pursuant to the requirements of the Act. See, e. g., Kraft v. District Court In And For City And County Of Denver, 593 P.2d 321 (Colo.1979); Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975). In the latter case, the court declared:

The underlying policy of the Act is to prevent the desperate shifting from state to state of thousands of innocent children by interested parties seeking to gain custody rights in one state even though denied those rights by the decree of another state. The provisions of the Act seek 'to eliminate jurisdictional fishing with children as bait.' Wheeler v. District Court, 186 Colo. 218, 526 P.2d 658 (1974).

Id., at 131, 544 P.2d at 405. Colorado has also recognized that forum compliance with jurisdictional standards in section 3 is, standing alone, [182 Ind.App. 631] an insufficient basis for the exercise of such jurisdiction in modifying a foreign decree. For if the foreign court still has jurisdiction and substantive law permits modification of the custody decree, a local tribunal generally Must defer. See

Page 1291

Woodhouse v. District Court In And For Seventeenth Judicial District, 587 P.2d 1199 (Colo.1978). As declared by the Michigan Court of Appeals:

The theory of this subsection (section 14 on modification of foreign decrees) is that courts rendering custody decrees normally retain continuing jurisdiction to modify them, and other states, in order to achieve greater stability of custody arrangements and avoid forum shopping, will defer to that continuing jurisdiction so long as the original state retains jurisdiction under the standards of the act.

Green v. Green, 87 Mich.App. 706, 711, 276 N.W.2d 472, 474 (1979) (citation...

To continue reading

Request your trial
14 practice notes
  • Marquiss v. Marquiss, No. 90-184
    • United States
    • United States State Supreme Court of Wyoming
    • July 7, 1992
    ..."home state." Wheeler v. District Court In and For City and County of Denver, 186 Colo. 218, 526 P.2d 658 (1974); In re LeMond, 182 Ind.App. 626, 395 N.E.2d 1287 (1979); Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975); McAtee v. McAtee, 174 W.Va. 129, 323 S.E.2d 611 (1984); Sheldon R. ......
  • B.R.F., In re, No. 46519
    • United States
    • Court of Appeal of Missouri (US)
    • March 20, 1984
    ...of all parties and act in the best interest of B.R.F. 20 Holt v. District Court, 626 P.2d 1336, 1344 (Okl.1981); See also In Re Lemond, 395 N.E.2d 1287, 1291-92 The grandmother requests that we award her attorneys' fees and the expenses of returning the minor to the grandmother's custody. §......
  • Spaulding v. Spaulding
    • United States
    • Maine Supreme Court
    • June 6, 1983
    ...rather than to protect and preserve the welfare of the child. Slidell v. Valentine, 298 N.W.2d 599, 605 (Iowa 1981); In Re Lemond, 395 N.E.2d 1287, 1291 (Ind.App.1974); Holt v. District Court, 626 P.2d 1336, 1343-44 (Okla., 1981); Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547, 551 (1975); s......
  • Holt v. District Court for Twentieth Judicial Dist., Ardmore, Carter County, No. 56204
    • United States
    • Supreme Court of Oklahoma
    • April 7, 1981
    ...The principle is equally applicable, perhaps more so, to the interstate situation before us. 34 In re Lemond (McCormack v. Lemond), 395 N.E.2d 1287, 1291-92 35 See generally Bodenheimer, supra note 6, at 1008-09. 36 Black's Law Dictionary 1220 (5th ed. 1979); see Fluke v. Canton, 31 Okl. 71......
  • Request a trial to view additional results
14 cases
  • Marquiss v. Marquiss, No. 90-184
    • United States
    • United States State Supreme Court of Wyoming
    • July 7, 1992
    ..."home state." Wheeler v. District Court In and For City and County of Denver, 186 Colo. 218, 526 P.2d 658 (1974); In re LeMond, 182 Ind.App. 626, 395 N.E.2d 1287 (1979); Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975); McAtee v. McAtee, 174 W.Va. 129, 323 S.E.2d 611 (1984); Sheldon R. ......
  • B.R.F., In re, No. 46519
    • United States
    • Court of Appeal of Missouri (US)
    • March 20, 1984
    ...of all parties and act in the best interest of B.R.F. 20 Holt v. District Court, 626 P.2d 1336, 1344 (Okl.1981); See also In Re Lemond, 395 N.E.2d 1287, 1291-92 The grandmother requests that we award her attorneys' fees and the expenses of returning the minor to the grandmother's custody. §......
  • Spaulding v. Spaulding
    • United States
    • Maine Supreme Court
    • June 6, 1983
    ...rather than to protect and preserve the welfare of the child. Slidell v. Valentine, 298 N.W.2d 599, 605 (Iowa 1981); In Re Lemond, 395 N.E.2d 1287, 1291 (Ind.App.1974); Holt v. District Court, 626 P.2d 1336, 1343-44 (Okla., 1981); Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547, 551 (1975); s......
  • Holt v. District Court for Twentieth Judicial Dist., Ardmore, Carter County, No. 56204
    • United States
    • Supreme Court of Oklahoma
    • April 7, 1981
    ...The principle is equally applicable, perhaps more so, to the interstate situation before us. 34 In re Lemond (McCormack v. Lemond), 395 N.E.2d 1287, 1291-92 35 See generally Bodenheimer, supra note 6, at 1008-09. 36 Black's Law Dictionary 1220 (5th ed. 1979); see Fluke v. Canton, 31 Okl. 71......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT