Ruppen v. Ruppen

• Citation: 614 N.E.2d 577
• Decision Date: 25 May 1993
• Docket Number: No. 22A01-9212-CV-427,22A01-9212-CV-427
• Parties: Donna Neel RUPPEN, Appellant-Petitioner, v. Roberto C. RUPPEN, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 577

614 N.E.2d 577

Donna Neel RUPPEN, Appellant-Petitioner, v. Roberto C. RUPPEN, Appellee-Respondent.

No. 22A01-9212-CV-427.

Court of Appeals of Indiana,

First District.

May 25, 1993.

Earl C. Mullins, Jr., Evans, Bishop, Masters & Mullins, Clarksville, for appellant-petitioner.

Dennis R. Tackett, Tackett, Taurman & Sonne, New Albany, for appellee-respondent.

BAKER, Judge.

Petitioner-appellant Donna Neel Ruppen appeals the trial court's conclusion it did not have jurisdiction to determine child custody and support. She also appeals the court's grant of writ of habeas corpus giving physical custody of the Ruppens' two minor children to respondent-appellee Roberto C. Ruppen.

Donna raises six issues for our review, which we consolidate and restate as:

I. Whether the trial court properly concluded a foreign sovereign, in this case, Italy, is a "state" under Indiana's Uniform Child Custody Jurisdiction Law (UCCJL).

II. Whether the trial court properly concluded it had jurisdiction to hear Roberto's petition for writ of habeas corpus, and whether it properly granted the petition and ordered Donna to transfer the children's physical custody to Roberto.

FACTS

Donna, a United States citizen, and Roberto, an Italian citizen, married on October 27, 1987, in Floyd County, Indiana. Soon after their wedding, Donna and Roberto moved to Macugnaga, Novara, Italy, where a second wedding ceremony was performed in April of 1988. Two living children were born of the Ruppens' marriage: Adriana, born December 14, 1987; and Veronica, born October 2, 1990. Although both girls enjoy dual Italian and American citizenships, they have always lived in Italy. Their contact with the United States has been limited to summer vacations visiting their maternal grandparents in Floyd County, Indiana.

This dispute began with the 1992 trip to Indiana. When Donna left Italy with the girls on May 26, 1992, she intended to stay in Indiana, satisfy Floyd County's statutory residency requirements, and then seek dissolution of her marriage to Roberto. Roberto learned of Donna's plan when she did not return to Italy at the end of summer. He traveled to Indiana to persuade Donna to return with him, or at least to permit him to take the children back to Italy. His pleas went unheeded.

On August 31, 1992, Donna filed a verified petition for custody and child support in the Floyd Superior Court and sought a temporary restraining order against Roberto. At that time, Donna and the children had been in Indiana 97 days. The next day, Roberto petitioned for a writ of habeas corpus seeking physical custody of his daughters so that custody could be determined in Italy. Roberto also filed a motion to dismiss Donna's petition for custody.

The trial court heard Roberto's petition for a writ of habeas corpus on September 2, 1992. Following the hearing, the trial court dismissed Donna's custody and child support petition for lack of jurisdiction and ordered Donna to transfer physical custody of the two young girls to Roberto so he could take them back to Italy for a custody determination. Donna gave the children to Roberto as ordered, and Roberto and the children returned to Italy that same day. Donna now appeals the trial court's order dismissing her petition for custody and child support and requiring her to transfer physical custody of the children to Roberto.

DISCUSSION AND DECISION

I

Custody Determination

(a) The UCCJA and UCCJL Generally ¹

The National Conference of Commissioners on Uniform State Laws adopted the Uniform Child Custody Jurisdiction Act (UCCJA) in 1968 to remedy the "intolerable state of affairs [in child custody disputes] where self-help and the rule of 'seize-and-run' prevail[ed] rather than the orderly processes of the law." 9 U.L.A. 117 (1988) (prefatory note).

Registering similar concerns, the Indiana General Assembly adopted its version of the UCCJA, the Uniform Child Custody Jurisdiction Law (UCCJL), in 1977. 1977 Ind.Acts Pub.L. No. 305, Sec. 1 et seq.; IND.CODE 31-1-11.6-1 et seq. The UCCJL's stated purposes include, in part, the avoidance of competition among jurisdictions and conflict with courts of other states in matters of child custody, the promotion of interstate cooperation so that custody decrees will be rendered in the state best able to decide the case in the interest of the child, and the deterrence of abductions and other unilateral removals of children undertaken to obtain custody awards. IND.CODE 31-1-11.6-1(a)(1), (2), and (5).

Under the UCCJL, an Indiana court has an affirmative duty to question its jurisdiction when it becomes aware of an interstate

                dimension in a child custody dispute.  Horlander v. Horlander (1991), Ind.App., 579 N.E.2d 91, 95, trans. denied.   The trial court must first determine whether it has jurisdiction, and, if it does, whether to exercise that jurisdiction.  Id.  The UCCJL has international application, as well.  Id.;  IND.CODE 31-1-11.6-23.  The extent of its international application is the subject of this appeal.  Mindful of our duty to promote the UCCJL's general purposes, we now address the merits of Donna's appeal.  See IND.CODE 31-1-11.6-1(b)
                

(b) Jurisdiction

Donna first argues the Floyd Superior Court erred when it concluded it did not have jurisdiction to decide the custody of her Italian-born children.

The determination of whether an Indiana court has jurisdiction in an interstate custody proceeding is controlled by IND.CODE 31-1-11.6-3, which provides, in relevant part:

(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; or

(2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

* * * * * *

(4)(A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) it is in the best interest of the child that this court assume jurisdiction.

As referenced in paragraph (1) above, a child's "home state" is "the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent, for at least six (6) consecutive months.... " IND.CODE 31-1-11.6-2(5). Only when a child does not have a "home state" may the court apply the "significant connection" test under IND.CODE 31-1-11.6-3(a)(2) to determine its jurisdiction. Williams v. Williams (1993), Ind.App., 609 N.E.2d 1111, 1113. Likewise, by definition, if the child has a "home state" other than Indiana, jurisdiction may not be had in Indiana under IND.CODE 31-1-11.6-3(a)(4) unless the home state has declined its jurisdiction.

In this case, no one disputes that Indiana is not the children's "home state." Although the Ruppen children have vacationed in Floyd County during the summer months, they have never lived in Indiana for a six-month period, including the six-month period immediately preceding the custody dispute. Nonetheless, Donna argues Indiana had jurisdiction to determine custody due to the children's significant connection with Indiana, pursuant to IND.CODE 31-1-11.6-3(a)(2), or because no other state would have jurisdiction, pursuant to IND.CODE 31-1-11.6-3(a)(4). Her arguments are dependent on whether Italy, a foreign sovereign, is a "state," as that term is used in the UCCJL, and whether it is the Ruppen children's "home state." Cognizant that the Indiana General Assembly intended the UCCJL to have international application, see IND.CODE 31-1-11.6-23, we first analyze Italy's status under the Law.

The UCCJL defines "state" as "any state, territory, or possession of the United States, the Commonwealth of Puerto Rico The basic policies of avoiding jurisdictional conflict and multiple litigation simply are not served when the jurisdiction of foreign sovereigns to decide child custody is systematically ignored. Furthermore, abductions and other unilateral removals of children are no less harmful in an international arena than in an interstate setting. Assuming jurisdiction after a child has been wrongfully brought to, or detained in, Indiana only rewards the very behavior the UCCJL seeks to eliminate. On the other hand, the incentive to "snatch" one's child is diminished when the trial court recognizes that a child's home state may be a foreign sovereign, and declines jurisdiction accordingly. See Brown v. Tan (1981), Fla.App., 395 So.2d 1249, 1252 (Florida lacked jurisdiction to decide custody where there was no question Republic of Singapore was the child's home, not Florida); Middleton v. Middleton (1984), 227 Va. 82, 314 S.E.2d 362 (notwithstanding the UCCJA's definition of "state," general purposes of the Act mandate recognizing England as the child's "home state").

                and the District of Columbia."   IND.CODE 31-1-11.6-2(10).  Under this definition, Italy is not a "state."   Neither is it a "home state," although this result seems startling under the facts before us:  the Ruppen children were born in Italy and have continuously resided in Italy throughout their young lives.

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