Rendon v. Rendon

• Decision Date: 12 March 1998
• Docket Number: No. 48A02-9708-CV-562,48A02-9708-CV-562
• Parties: In re the Marriage of Linda Jean RENDON, Appellant-Petitioner, v. Ruben G. RENDON, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 889

692 N.E.2d 889

In re the Marriage of Linda Jean RENDON, Appellant-Petitioner, v. Ruben G. RENDON, Appellee-Respondent.

No. 48A02-9708-CV-562.

Court of Appeals of Indiana.

March 12, 1998.

Martha J. Mondou, Garrison & Kiefer, P.C., Indianapolis, for Appellant-Petitioner.

OPINION

BAKER, Judge.

Appellant-petitioner Linda Jean Rendon appeals the denial of her motion to set aside the court's visitation order and an order finding her in contempt of court for failing to comply with court-ordered visitation and allowing appellee-respondent Ruben G. Rendon to hold all future child support payments in trust. First, Linda challenges the trial court's jurisdiction to enter its order under the Uniform Child Custody Jurisdiction Law (UCCJL).

FACTS

On February 29, 1996, a dissolution decree was entered, terminating the marriage of Linda and Ruben Rendon. At the time the decree was entered, Ruben was living in Texas, while Linda resided in Indiana with the parties' minor child, M.R. Pursuant to the decree, Linda was awarded custody of M.R., and Ruben was awarded restricted supervised visitation in order to give M.R. an opportunity to reacquaint herself with him. Although the decree did not set forth the details of the supervised visitation, it specifically required the parties to "agree on such a visitation plan or submit written proposals to the court for a specific judicial order." Record at 26. The decree further indicated that any "expanded visitation," which apparently included unsupervised visitation, would be permitted only by an agreement of the parties or after an additional hearing. R. at 26.

Apparently due to the parties' inability to agree on a visitation plan, Ruben filed a motion for the issuance of a visitation order, along with a proposed visitation plan, on April 17, 1996. ¹ Pursuant to his proposed plan, Ruben would be allowed supervised visitation with M.R. from May 23-26, 1996, for four hours per day and four continuous days, approximately ninety days later, for six hours per day. The proposed plan also awarded Ruben unsupervised visitation with M.R. for four continuous days at ninety-day intervals thereafter. R. at 30. On May 8, 1996, the court granted Ruben's motion and awarded him visitation as set forth in his proposed plan.

The following day, Linda requested a hearing regarding the visitation order. Specifically, she contended that, pursuant to the dissolution decree, the trial court was required, but failed, to hold a hearing before allowing Ruben unsupervised visitation with M.R. The trial court granted her request and scheduled a hearing for May 22, 1996. However, the hearing was later continued at Linda's request. R. at 39.

On May 13, 1996, Linda was personally served with a copy of the visitation order. Thereafter, on May 15, 1996, she filed a motion to set aside that order, alleging that the trial court erroneously granted Ruben unsupervised visitation with M.R. without first holding a hearing on the matter as required by the dissolution decree. The following day, Linda also filed a motion to clarify the visitation order, contending that the May 8, 1996, visitation order failed to indicate who would supervise the visitation and when and where the visitation was to take place.

Following Ruben's response on May 22, 1996, the court denied Linda's motion to set aside the visitation order, pending a hearing on the matter. The court, however, granted Linda's motion to clarify the visitation order and specifically ordered the supervised visitation to take place from May 23-26, 1996, from 11:00 a.m. until 3:00 p.m. daily, with supervision to be provided by Linda or someone she designated. R. at 17. The court, however, did not name a specific place for the visitation.

Later that same day, Linda faxed to Ruben's attorney a letter indicating that Ruben would be unable to visit M.R. from May 23-26, 1996, because she had vacation plans which she was unable to change. R. at 58. As a result, Ruben did not travel from Texas to Indiana for his visitation with M.R. on May 23, 1996.

The next day, Ruben filed a motion seeking to hold Linda in contempt for failing to comply with the express terms of the visitation order. As a result, on May 24, 1996, the trial court ordered Linda to appear before the court to show cause why she should not be held in contempt for failing to comply with the visitation order. On June 5, 1996, Linda filed a response to Ruben's motion for contempt, claiming that, although she was at home with M.R. on May 23, 1996, Ruben failed to appear for his visitation.

Thereafter, in July of 1996, Linda obtained new counsel, who again filed motions to set aside and clarify the visitation order. In support of her motion to set aside the visitation order, Linda attached an affidavit, in which she stated that Ruben had been physically, mentally and verbally abusive toward her and M.R. Ruben again responded to Linda's motions and, in addition, requested a permanent injunction pursuant to Ind.Trial Rule 65, based on Linda's failure to comply with the visitation order.

Several months later, on October 21, 1996, Linda filed a notice of intent to relocate to North Carolina with M.R. Later that day, Ruben filed a motion for an emergency hearing regarding visitation, alleging that Linda had consistently denied him visitation with M.R. since the parties' divorce and was attempting to flee the jurisdiction of the court. Soon thereafter, Linda relocated to North Carolina with her new husband and M.R.

On October 31, 1996, Linda filed a motion to contest the trial court's subject matter jurisdiction under the UCCJL. Specifically, Linda alleged that, because Ruben was a resident of Texas and she and M.R. were now residents of North Carolina, the trial court no longer had authority to rule on her motion to set aside the visitation order or Ruben's motion to find Linda in contempt. On November 15, 1996, Ruben filed a response, contending that the court had jurisdiction because Indiana was M.R.'s home state under the UCCJL.

In March of 1997, Linda again hired new counsel, who also filed motions to set aside the court's visitation order, to oppose Ruben's motion to hold her in contempt and to contest the court's subject matter jurisdiction under the UCCJL. Thereafter, on March 27, 1997, Linda filed a complaint in the North Carolina court, to establish jurisdiction there and to modify the Indiana court's May 8, 1996, visitation order. The North Carolina court set the matter for hearing on April 28, 1997, to determine whether it had jurisdiction to make a child custody determination.

On March 31, 1997, the Indiana trial court held a hearing on Linda's motion to set aside the visitation order and Ruben's motion to find Linda in contempt for failing to comply with the visitation order. Although Linda received notice of the hearing, she did not appear. As a result, Linda's counsel proceeded on her behalf, informing the court that another proceeding relating to the visitation and custody of M.R. had been filed in North Carolina on March 27, 1997. The court, however, determined that Indiana retained jurisdiction to rule on the parties' motions.

Linda's counsel then asked the court to set aside the visitation order which had been entered without a hearing. The court denied Linda's motion and proceeded with Ruben's motion to find Linda in contempt. Following the hearing, the court issued findings of fact and conclusions of law, finding Linda in contempt for failing to comply with the visitation order. The court also awarded Ruben attorney fees and authorized him to pay future child support payments in trust until further order of the court. Linda now challenges the trial court's rulings. Initially, she challenges the trial court's jurisdiction under the UCCJL.

DISCUSSION AND DECISION

I. Standard of Review

Initially, we note that Ruben has failed to file an appellate brief. Where an appellee fails to file a brief on appeal, we may reverse the trial court's judgment if the appellant demonstrates prima facie error. Dusenberry v. Dusenberry, 625 N.E.2d 458, 460 (Ind.Ct.App.1993). However, we are not compelled to apply the prima facie error standard, but may, in our discretion, decide the case on the merits. Roberts v. Johnson, 625 N.E.2d 1288, 1290 (Ind.Ct.App.1993). Due to the nature of the issues involved in this appeal, we exercise such discretion here.

When a court enters findings of fact and conclusions of law at a party's request, as here, we determine whether the evidence supports the findings and whether the findings support the judgment. Vanderburgh County Bd. of Com'rs v. Rittenhouse, 575 N.E.2d 663, 665 (Ind.Ct.App.1991), trans. denied. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind.Ct.App.1991), trans. denied. The judgment is clearly erroneous when it is unsupported by the findings of fact. Id. We consider only the evidence most favorable to the judgment and all reasonable inferences flowing therefrom. Id. We will not reweigh the evidence or assess the credibility of the witnesses. Id.

II. Jurisdiction

Linda contends that the trial court erred by concluding that it retained jurisdiction over the contempt and visitation issues under the UCCJL. Although Linda concedes that the court originally had jurisdiction during the dissolution proceedings, she contends that because Ruben lives in Texas, the court lost jurisdiction when she and M.R. moved to North Carolina. Therefore, she contends that the trial court did not have power to enter its order and should have dismissed the proceedings before it.

The UCCJL ² operates to restrict the existing power of a court to hear child custody and visitation issues. Roberts, 625 N.E.2d at 1290. Thus, when, as here, a court becomes aware of an interstate custody dispute, the court must engage in a multi-step process to...