Marriage of Hudson, In re

Decision Date21 April 1982
Docket NumberNo. 1-1080A310,1-1080A310
Citation434 N.E.2d 107
PartiesIn re the MARRIAGE OF Susan HUDSON (Petitioner Below), and Ronald R. Hudson (Respondent Below).
CourtIndiana Appellate Court

Rosenfeld, Wolfe, Frey & Hunt, Eric A. Frey, Terre Haute, for appellant.

Bolin Trueblood & Rennolet, Barbara Coyle Rennolet, Terre Haute, for appellee.

MILLER, Presiding Judge.

Respondent-husband Ronald R. Hudson appeals from a trial court's judgment in a dissolution proceeding which 1) dissolved the parties' marriage 2) distributed the marital property and 3) awarded custody of their three children to Petitioner-wife Susan C. Hudson. Specifically Ronald contends the trial court lacked jurisdiction over all three matters claiming 1) Susan did not satisfy the six month's residency requirement for obtaining a dissolution decree; 2) Susan did not maintain continuous residency in Indiana and therefore the trial court lacked jurisdiction to distribute the marital property; and 3) the trial court did not possess jurisdiction to award custody of the parties' children under the Uniform Child Custody Jurisdiction Law and any such assertion of jurisdiction would violate his due

process rights. We hold the trial court was vested with jurisdiction to dissolve the marriage but lacked jurisdiction to distribute the bulk of the marital assets. We additionally find that, at the time Susan's petition for dissolution was filed, the trial court was vested with jurisdiction to determine custody of the parties' children, given Susan's and the children's significant connections with Indiana. We therefore affirm in part, reverse in part and remand for further proceedings.

FACTS

We initially note that a transcript of the hearing on Susan's petition was not certified for our consideration on appeal. Our review of the facts is therefore limited to the pleadings and the transcript of a hearing on Ronald's motion to dismiss for lack of subject-matter and in personam jurisdiction.

The facts most favorable to the trial court's judgment are the following. Susan was a life-long resident of Indiana at the time of her marriage to Ronald in January of 1975. The parties were married in Bloomington, Indiana and initially resided there for approximately one and a half years. At the time of their marriage, Susan had custody of Christine, her natural child from a former marriage, whom Ronald legally adopted. Ronald was enlisted in the United States Navy and was transferred to Iceland in mid-1976 where the parties and Christine resided for approximately two and a half years. While living in Iceland, the parties had two children, Thomas and Monique.

In 1978 Ronald was transferred to the State of Washington for a one year program at the University. While Ronald attended school, the parties and their three children resided in Bremerton, Washington for nine months until July of 1979. At that time, Susan returned to her parents home in Indiana and lived there for approximately one and a half months. According to her testimony she returned to Washington in August of 1979 in order to encourage Ronald to seek marriage counseling, to gather some additional personal possessions and to arrange for Ronald to set up a home, separate from her parents, for her and the children in Indiana until their marital difficulties could be worked out. After four months in Washington, Susan returned to Indiana in December of 1979 with the children where she has since resided.

Ronald continuously claimed Oregon as his voting and legal residence. The parties, however, never lived together in Oregon except for a brief period during which they stayed with his parents while they set up housekeeping in Washington. In January of 1980, Ronald was transferred to a military installation in Rota, Spain. Susan and the children continued to reside in Indiana. On March 12, 1980, Ronald apparently forcibly removed Monique and Thomas from Susan's custody and took them back to Spain where they still resided at the time of the trial court's judgment.

On the same day Ronald seized the two children, which was approximately eight months after Susan's initial return to Indiana, Susan filed a petition for dissolution and child custody in the Vigo Superior Court in Indiana. Ronald was served notice of the proceedings by mail on March 24, 1980. On April 11, 1980 counsel for Ronald appeared and filed a motion to dismiss for lack of subject-matter and in personam jurisdiction. After a hearing and after the submission of briefs and memoranda, the trial court denied the latter motion and set the petition for hearing. On July 15, 1980 the trial court entered a decree of dissolution, distributed all the marital property and awarded Susan custody of the three children. Thereafter Susan petitioned for issuance of a rule to show cause stemming from Ronald's alleged failure to relinquish custody of Monique and Thomas and to pay support as had been ordered by the trial court. Ronald moved for a stay of proceedings to enforce the trial court's judgment, under Ind. Rules of Procedure, Trial Rule 62(B)(1), pending a ruling on his motion to correct errors and any further appellate proceedings. Both the trial court and this Court overruled his request for a stay.

Ronald appeals from the trial court's rulings raising the following issues for review:

1) Did the trial court possess jurisdiction to dissolve the parties' marriage?

2) Did the trial court possess jurisdiction to distribute the parties' property?

3) Did the trial court possess jurisdiction under the Uniform Child Custody Jurisdiction Act to award custody of the parties' three children?

4) Did the trial court err in refusing to consider Ronald's motion for a stay of proceedings to enforce its custody and support orders?

DECISION
Dissolution

Ronald contends the facts do not support the trial court's determination that Susan was a resident of Indiana for six months preceding the filing of her petition for dissolution. 1 In this regard, Ronald first argues that upon their marriage Susan acquired Ronald's domicile since she did not maintain physical presence in Indiana and evidenced no intent to establish Indiana as her separate domicile. He therefore argues Susan's requisite physical presence and intent to establish a separate domicile in Indiana did not occur until December of 1979 since she had not continuously resided in Indiana after her initial return to her parents' home in July of that year. We cannot agree with Ronald's latter conclusion.

We acknowledge the general rule in Indiana presumes the wife's residence "follows" that of the husband. In re Marriage of Rinderknecht, (1977) Ind.App., 367 N.E.2d 1128, 1132; accord Curtis v. Curtis, (1891) 131 Ind. 489, 30 N.E. 18. However, it is also recognized that strict adherence to the rule is inconsistent with the Married Women's Property Acts according women full legal capacity; it is unseemly reminiscent of the long discredited fictional identity of husband and wife. 2 I Moore's Federal Practice P 0.74(6.1) (2d ed. 1981) and cases cited therein. The majority of jurisdictions, including Indiana, have therefore concluded a married woman may establish a residence or domicile separate from her husband for whatever reason, and the usual test for determining a party's residence may apply. In re Marriage of Rinderknecht, supra.

Applying this test in the case at bar, we find the evidence was sufficient to support the trial court's determination that Susan was an Indiana resident at the time she filed her petition for dissolution. As explained in Rinderknecht :

" 'It is the general rule in construing a statute which prescribes residence as a qualification for the enjoyment of a privilege, or the exercise of a franchise, that domicile and residence are deemed to be equivalent or synonymous, i.e., that the word residence is deemed to mean domicile....

The term domicile in a strict legal sense has been defined as the place where a person has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning. Ballentine Law Dictionary, p. 400. To acquire a domicile of choice, there must be an actual residence in a particular place together with an intention to remain there. A place cannot serve as a domicile merely by force of bodily presence there when it is unaccompanied by an intention to live there permanently, or at least indefinitely. 11 I.L.E., 'Domicile,' § 2, p. 3. As distinguished from domicile, residence may be any place of abode or dwelling regardless of how temporary....' " (Emphasis added.)

Id. at 1131-32, quoting Board of Medical Registration & Examination v. Turner, (1960) 241 Ind. 73, 79-80, 168 N.E.2d 193, 196-97. Although Susan concedes in her brief that after initially living in Indiana for a year and a half she "did not continuously reside in Indiana after the parties were transferred to Iceland," she does point out that the evidence demonstrates she moved to her parents' home in Indiana in July of 1979, approximately eight months before she filed a petition for dissolution. She brought some personal possessions to Indiana at that time and left in August for the sole purpose of arranging her affairs in Washington and with the intention of returning to Indiana for an indefinite period of time. Further, upon her return to Indiana she registered (at an unspecified time) to vote in Indiana. With due regard to the trial court's ability to determine the credibility of witnesses, In re Marriage of Julien, (1979) Ind.App., 397 N.E.2d 651, we believe the evidence supported the court's exercise of jurisdiction over the marital status of the parties.

Property Distribution

The trial court's decree of dissolution also distributed the parties' marital property, both real and personal, pursuant to Susan's petition. Except for a few of Susan's personal belongings, the bulk of the parties' personalty, which included an...

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