Novatny v. Novatny
| Decision Date | 31 August 2007 |
| Docket Number | No. 46A04-0612-CV-698.,46A04-0612-CV-698. |
| Citation | 872 N.E.2d 673 |
| Parties | Mary Ann NOVATNY, Appellant-Petitioner, v. Christopher S. NOVATNY, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Mary Ann Novatny, Virginia Beach, VA, Appellant pro se.
Craig V. Braje, Elizabeth A. Flynn Braje, Nelson & Janes, LLP, Michigan City, IN, Attorneys for Appellee.
Mary Ann Novatny ("Mother") appeals the trial court's order modifying the custody terms of her dissolution decree ("Modification Order"). Mother raises two issues for our review, and Christopher Novatny ("Father") cross-appeals and raises two other issues. We reorder and restate the issues, as follows:
1. Whether Mother's appeal should be dismissed because she did not comply with the Appellate Rules.
2. Whether the court erred when it determined that it had jurisdiction under the Uniform Child Custody Jurisdiction Act ("UCCJA").
3. Whether Mother should be ordered to pay appellate attorney fees due to her noncompliance with the Appellate Rules.
We vacate the judgment of the trial court.
Mother married Father on December 22, 1990. The couple had two children: J.C.N., date of birth 8/7/91, and B.M.N date of birth 12/16/93, and the family lived in Michigan City. On February 8, 1999, the trial court issued a Summary Decree of Dissolution of Marriage, which was amended on March 9. The court awarded physical custody of the children to Mother, and Father enjoyed parenting time and paid child support. Father moved to Illinois in September 2000.
Mother filed a Verified Notice of Intent to Move Child's Residence on August 22, 2003. Father objected, and the court held an evidentiary hearing. On September 15, the court overruled Father's objection and authorized Mother to move J.C.N. and B.M.N. to Virginia. On December 29, the court issued another order that modified child support.
Between February 2004 and October 2006, Mother lived in at least six different places, including a motel, with the children in Virginia. J.C.N. and B.M.N. were forced to change schools at least three different times because of the moves. Two of the homes Mother provided for the children occasionally had inadequate plumbing, and one of the homes was without electricity for a period of time. The school records for both children showed that their grades in school declined during this time-frame.
On August 22, 2006, Father, who lived in Illinois at that time, filed his Petition to Modify Custody and Child Support. The court set a hearing for October 24. Mother represented herself and moved to continue the hearing on October 20. Mother also filed an objection to the court's jurisdiction the day before the hearing. Mother objected that the court had no jurisdiction because all the parties had moved out of Indiana.
At the hearing, Father objected to any continuance, and Mother admitted that no other court had assumed jurisdiction in this case. The court then stated it would deny Mother's "[UCCJA] subject matter jurisdiction and inconvenient forum arguments and deny the motion to continue." Transcript at 9. The parties presented evidence, including grades and test scores for the children from their schools.
On November 2, the court issued its Modification of Child Custody and Matters Inherent Thereto. The court again denied Mother's request to transfer the case to a court in Virginia. The court found that it was in the children's best interests to modify custody due to a change in circumstances, specifically, Mother's "inability to maintain a stable residence, resulting in the need for the children to change schools on various occasions [that caused the children to] experience[] a significant decline in their academic performance." Appellant's App. at 2. Consequently, the court awarded physical custody to father on the condition that he "obtain a residence in northwest Indiana." Id.
This appeal ensued. Mother, again, represented herself, and she filed her Notice of Appeal on November 27, 2006, and her case summary on December 26. The trial court clerk filed the Notice of Completion of Clerk's Record on December 27, and the Notice of Completion of Transcript was received in the office of the Clerk of the Court of Appeals for the State of Indiana ("Clerk's office") on February 26, 2007.
Mother submitted her Appellant's Brief and Appendix on March 29. But neither document was filed. Rather, the Clerk's office returned those submissions to Mother because of defects. On April 16, Mother filed her Brief and her one volume Appendix and Supplemental Authority. She did not, however, serve a copy of any of those documents on Father.
On April 26, Father filed a Motion to Compel Service of Appellant's Brief, Appendix and Supplemental Authority and for an Extension of Time to File Appellee's Brief. On May 7, we granted that Motion and ordered Mother to serve her Brief, Appendix and Supplemental Authority on Father. We also granted Father until May 31 to file his Appellee's Brief.
On May 31, Father submitted his Appellee's Brief.1 However, at that time, Mother still had not provided Father with any of the relevant documents as ordered. In addition to responding to Mother's issues, Father asked that her appeal be dismissed and that he be awarded appellate attorney's fees. Since that time, Mother has submitted numerous documents and pleadings including a late Reply Brief, which did not respond to either issue raised by Father on cross-appeal.2
Father contends that we should dismiss Mother's appeal "for failing to comply with the Court's Order and the Indiana Appellate Rules." Appellee's Brief at 11. Dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct.App.2004). However, as Father correctly notes, we prefer to resolve cases on the merits. Id. Mother did not substantially comply with the appellate rules or our order that she do so. And she offers no excuse for her noncompliance.
"If an appellant inexcusably fails to comply with an appellate court order, then more stringent measures, including dismissal of the appeal, would be available as the needs of justice might dictate." Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001). The needs of justice dictate that this case, which involves the modification of physical custody, be decided on its merits. Mother raises a significant issue on appeal that she properly preserved by a timely objection: the court had no jurisdiction under the UCCJA because she, the children, and Father had all moved from Indiana. Appellant's Brief at 4; Transcript at 7.
Mother's noncompliance with our appellate rules includes instances of untimely filings, attempts to alter the record on appeal, and presentation of issues on appeal that were not before the trial court.3 Such noncompliance can be dealt with by simply ignoring Mother's inappropriate requests. Further, Father was able to discern and address the issues that Mother raised despite her noncompliance. Thus, we consider whether the trial court had jurisdiction over Father's Petition.
Mother argues that the court had no jurisdiction over Father's Petition under the UCCJA4 because neither the children nor the parties lived in Indiana. At the hearing, Mother objected to the court's jurisdiction as follows:
I just believe that Indiana has adopted [the UCCJA] and that the purpose of it is to protect children from being shifted around from state to state and that Indiana doesn't have jurisdiction over my case because my children and I have been residents of Virginia for at least six months. And they go to school there, and I work there. And [Father] doesn't live in Indiana either. So we have no significant connections here. We don't work here, go to school here, or live here.
Transcript at 7. Father responded that "this matter does not fall within the act." He also argued that the court had jurisdiction because no other court had accepted jurisdiction of this case. The court questioned Mother, and she agreed that no other court had assumed jurisdiction in this case. The court ruled:
Based on the allegations of the complaint-I don't necessarily concur totally with [Father's counsel's] analysis, but based on the allegations in the petition to modify custody, I will deny the [UCCJA] subject matter jurisdiction and inconvenient forum arguments and deny the motion to continue. And I want to emphasize that's in significant part because of the nature of the allegations upon which the petition to modify custody is based.
The trial court's jurisdiction over custody matters with interstate dimensions is governed by the UCCJA, codified in Indiana Code Title 31-17.3.5 Westenberger v. Westenberger, 813 N.E.2d 343, 344 (Ind. Ct.App.2004), trans. denied. Indiana adopted the UCCJA to address important considerations, including: 1) avoiding competition and conflict among courts of different jurisdictions in matters of child custody; 2) promoting interstate cooperation in rendering custody decrees; and 3) deterring abductions and other unilateral removals of children undertaken to obtain custody awards. In re Adoption of M.L.L., 810 N.E.2d 1088, 1091 (Ind.Ct. App.2004).
The jurisdictional provision reads:
(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;
(2) it is in...
To continue reading
Request your trial
-
Ankeny v. Governor of State of Indiana
...1. We note that pro se litigants, such as Plaintiffs, "are held to the same standard as licensed lawyers." Novatny v. Novatny, 872 N.E.2d 673, 677 n. 3 (Ind.Ct.App.2007). This court will not "indulge in any benevolent presumptions on [their] behalf, or waive any rule for the orderly and pro......
-
Hays v. Hockett, Court of Appeals Case No. 62A01–1612–DR–2910
...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 circumst......
-
In re Guardianship of S.M.
...jurisdiction is purely one of law, to be reviewed de novo. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001); and Novatny v. Novatny, 872 N.E.2d 673, 679 (Ind.Ct. App.2007). A claim that the tribunal lacked subject matter jurisdiction cannot be waived. Ind. Dep't of Envtl. Mgmt. v. Raybest......
-
Hooper v. Smith
...whether a trial court had jurisdiction isreviewed de novo. In re K.C., 922 N.E.2d 738 (Ind. Ct. App. 2010) (citing Novatny v. Novatny, 872 N.E.2d 673 (Ind. Ct. App. 2007)), trans. denied. Both Mississippi and Indiana have adopted the UCCJA, which contains provisions for establishing jurisdi......