State ex rel. Marcrum v. Marion County Superior Court, Civil Division, Room No. 5

• Decision Date: 21 April 1980
• Docket Number: No. 1079S299,1079S299
• Citation: 403 N.E.2d 806,273 Ind. 222
• Parties: STATE of Indiana on the relation of Erma Jean MARCRUM, Relator, v. The MARION COUNTY SUPERIOR COURT, CIVIL DIVISION, ROOM NO. 5, and the Honorable Steven H. Frank, as Special Judge of said Court, Respondents.
• Court: Indiana Supreme Court

Page 806

403 N.E.2d 806

273 Ind. 222

STATE of Indiana on the relation of Erma Jean MARCRUM, Relator, v. The MARION COUNTY SUPERIOR COURT, CIVIL DIVISION, ROOM NO 5, and the Honorable Steven H. Frank, as Special Judge of said Court, Respondents.

No. 1079S299.

Supreme Court of Indiana.

April 21, 1980.

Charles R. Sheeks, Hildedag, Johnson, Secrest & Murphy, Indianapolis, for relator.

Gregory F. Hahn and William T. Rosenbaum, Dillon, Hardamon & Cohen, Indianapolis, for respondents.

HUNTER, Justice.

Relator, Erma Jean Marcrum, has filed with this Court a Petition for Alternative Writ of Mandate and Writ of Prohibition, pursuant to Ind.R.O.A. (B), asking this Court to prohibit respondent court from exercising further jurisdiction in cause No. S579-0843 and to mandate respondent court to expunge various orders from the record in said cause. On October 29, 1979, this Court granted a temporary writ. Said writ is now made permanent.

The marriage of relator and James Alex Marcrum was dissolved on January 31, 1977, in the Harris County, Texas 312th Judicial Court. Relator was awarded custody of their two minor children. The father, James Marcrum, subsequently moved to Indiana. On September 7, 1978, Mr. Marcrum filed a Motion to Modify in Suit Affecting the Parent-Child Relationship in that Texas court. On June 1, 1979, the two minor children came to Indiana to visit their father. On June 28, 1979, James Marcrum filed for and obtained temporary custody of the children in respondent court. On September 25, 1979, The Honorable Steven H. Frank, Special Judge, granted permanent custody of the children to James Marcrum. In the interim, the Texas court dismissed the modification action before it on motion of Mr. Marcrum on August 10, 1979. On August 20, 1979, Judge Frank communicated with the Harris County, Texas court and was informed that there was no custody proceeding regarding these children pending before it.

The above facts give rise to the following issues:

1. Whether respondent court has exercised jurisdiction in this case in contravention of Ind.Code § 31-1-11.6-6 (Burns Supp.1979); and

2. Whether respondent court has exercised jurisdiction in this case in contravention of Ind.Code §§ 31-1-11.6-8 and 14 (Burns Supp.1979).

In 1977, Indiana adopted the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.). Indiana's version of the U.C.C.J.A. has been codified as Ind.Code § 31-1-11.6-1 et seq. (Burns Supp.1979) (hereinafter referred to as "the Act"). Owing to the recent adoption of this statute, there is very little case law authority or judicial interpretation in this state. See Campbell v. Campbell, (1979) Ind.App., 388 N.E.2d 607, (in which the Court of Appeals remanded the cause to the trial court because that court failed to even consider, let alone comply with the provisions of the Act), and In Re Lemond, (1979) Ind.App., 395 N.E.2d 1287 (in which a petition to transfer is pending before this Court). Consequently, we will look to the jurisprudence of other states which have adopted the U.C.C.J.A. as well as commentaries relating to the uniform act.

Jurisdictional criteria under the Act are outlined in Section 3. James Marcrum's allegations in his petition before respondent court purport to invoke the jurisdiction of the Indiana court under Subsections (a)(2) and (a)(3) of Section 3 of the Act. Relator's challenge to respondent court's jurisdiction is not based on Section 3 criteria.

Nevertheless, it does appear that a Section 3 attack may have been appropriate in this case. Section 3(a)(2) of the Act provides that a court of this state has jurisdiction to make a custody determination by initial or modification decree if:

"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; . . . ." Ind.Code § 31-1-11.6-3(a)(2) (Burns Supp.1979).

The children's "significant connection" with Indiana in this instance is suspect. The children resided in Texas, and under the Texas decree were only to visit their Indiana father on every other weekend (a seeming impracticality), for one week over the Christmas holidays and for four weeks during the summer. Subject matter jurisdiction in a child custody determination should not be grounded on the mere presence of the child in this state without regard to the parents' understanding, and indeed the court decree's language, as to the duration of that presence. In Re Sagan, (1978) 261 Pa.Super. 384, 396 A.2d 450. (This case was not decided under the U.C.C.J.A., but the Court noted that that statute had been recently enacted in Pennsylvania and that the result would be the same under its provisions.)

Section 3(a)(3) of the Act provides for jurisdiction when:

"The child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; . . . ." Ind.Code § 31-1-11.6-3(a)(3) (Burns Supp.1979).

The only jurisdictional prerequisite under this subsection is presence of the child in this state. However:

"When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph." National Conference of Commissioners on Uniform State Laws, Note to U.C.C.J.A. § 3 (1968), 9 U.L.A. 123, 124 (1979).

We have no evidence before us indicating abandonment or an emergency, and we note that the father's self-serving statements alone are not sufficient to confer jurisdiction under this provision. Young v. District Court, (1977) 194 Colo. 140, 570 P.2d 249. But because we do not have a certified trial court record before us, and because these issues are not specifically argued before us, we will defer to respondents' implicit judgment regarding jurisdiction under Section 3 of the Act.

We now turn to relator's jurisdictional challenge based on the prior and concurrent proceedings in Texas.

I.

Ind.Code § 31-1-11.6-6 (Burns Supp.1979) reads:

"(a) A court of this state shall not exercise its jurisdiction under this chapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

"(b) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under section 9 of this chapter and shall consult the child custody registry established under section 16 of this chapter concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.

"(c) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 19 through 22 of this chapter. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum."

The evidence is undisputed that, at the time of the filing of the action in respondent court, a custody proceeding concerning the two Marcrum children was pending in the Harris County, Texas 312th Judicial Court. The issues we must determine are (a) whether the Texas court exercised jurisdiction substantially in conformity with the Act; and (b) whether the proceeding in the Texas court had, in effect, been stayed because the respondent court was the more appropriate forum or for other reasons.

(a)

If a proceeding concerning the custody of a child is pending in another state, but not in substantial conformity with the U.C.C.J.A., an Indiana court may assume jurisdiction notwithstanding the pending foreign proceeding. Williams v. Zacher, (1978) 35 Or.App. 129, 581 P.2d 91. Respondents argue that the courts of Texas do not exercise jurisdiction in child custody matters in substantial conformity with the U.C.C.J.A. because of the law in Texas as stated in Best v. Best, (1959) Tex.Civ.App., 331 S.W.2d 364. In the Best case, the Court of Civil Appeals held that an Ohio court did not have jurisdiction to grant custody of children to the father when both the mother and children were residents of Texas. The Court in Best did not, as respondents suggest, hold that jurisdiction in custody matters lies only in states where the children reside. Absent some "significant connection" with the state of Ohio, the Best decision would be proper under our law. Ind.Code § 31-1-11.6-14 (Burns Supp.1979).

Regardless of whether the decision in Best v. Best, supra, is in substantial compliance with the U.C.C.J.A., the case gives no indication of the manner in which the Harris County, Texas court exercised jurisdiction in the custody modification proceeding pending before it in 1978 and 1979.

"The Act is not a reciprocal law. It can be put into full operation by each...