Wilcox v. Wilcox, 17A05-9303-CV-110
| Decision Date | 16 June 1994 |
| Docket Number | No. 17A05-9303-CV-110,17A05-9303-CV-110 |
| Citation | 635 N.E.2d 1131 |
| Parties | Janice H. WILCOX, Appellant-Respondent, v. Timothy J. WILCOX, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
John P. Bullman, Bullman Law Office, Fort Wayne, for appellant.
Frederic L. Romero, Romero & Thonert, Auburn, for appellee.
In this interstate custody dispute, Janice Wilcox (Mother) appeals an order of the DeKalb County Circuit Court changing custody of the parties's two children from Mother to Timothy Wilcox (Father). The parties were divorced in August of 1989. Several post-dissolution petitions involving custody issues, as well as property settlement issues, were filed in the DeKalb Circuit Court in Indiana and the Wilson County Circuit Court in Tennessee where Mother currently resides. Of the four issues raised by Mother in this appeal, we address only two:
I. Whether the DeKalb Circuit Court had subject matter jurisdiction when it modified the custody order; and
II. Whether the DeKalb court committed reversible error by waiting fifteen and one-half months before holding a hearing after modifying custody by an ex parte order.
We reverse.
Mother and Father were divorced in August, 1989, by order of the DeKalb court. The parties have two children, a daughter, now eleven years old, and a son, now eight years old. The DeKalb court incorporated into its order the parties's agreement, by which Mother was granted custody of the two children and was given permission to move her residence anywhere in the United States. Father's visitation schedule included an extended summer visit with the children. The agreement provided that the "DeKalb Circuit Court shall at all times have continuing and preferred jurisdiction to enforce or modify" any custody order. Supp.R. 7. Mother moved with the children to Tennessee two days after the divorce.
The record reveals that several post-dissolution petitions were filed in both the DeKalb court and the Wilson court. A summary of the action taken in the DeKalb court follows: On October 16, 1989, Mother informed the DeKalb court by a letter that Father had failed to comply with the property settlement and custody stipulation. After several continuances and motions by both parties, the court ruled on July 17, 1990. The court's order included modification of Father's visitation schedule and a finding that Mother was in contempt of court. The court supplemented this order on August 3, 1990, and on August 24, 1990. Father then filed a Motion for Rule to Show Cause and Notice of Hearing on January 9, 1991. On August 14, 1991, Father filed an "Emergency Petition for Temporary Care, Custody and Control of the Parties Minor Children by Petitioner, Without Notice, Petition for Rule to Show Cause as Against Respondent and Petition for Modification of Custody...." The August 14, 1991, petition is relevant to the case before us. The court granted Father's request for temporary custody on August 16, 1991, two days before the children were to return to Tennessee. A hearing was eventually scheduled on the custody modification for December 1 and 2, 1992, more than fifteen months after the temporary change in custody was ordered. By order of December 12, 1992, the court modified custody in favor of Father. 1
Meanwhile, in the Wilson court, several proceedings took place. On December 14, 1990, Mother sought a finding of contempt, injunctive relief, an increase in child support, support arrearages, and a prayer that all child custody decisions be made in Tennessee. Mother amended her original contempt petition on January 9, 1991. The Wilson court eventually ruled on Mother's petition as well as other pending matters on June 5, and July 1, 1991. Among other things, the Wilson court modified Father's summer visitation schedule with the children and increased the child support payable by Father. On August 22, 1991, after the order from the DeKalb court granting Father temporary custody, Mother filed a petition for contempt for Father's failure to return the children to her in contradiction of the Wilson court's order. She also sought child support arrearages and attorney fees. Father sought summary judgment on Mother's petition. After a hearing, the Wilson court denied Father's summary judgment motion and found him in contempt. Mother was permitted to amend her petition to include a petition for a change of custody back to her. The trial court granted Mother's petition for change of custody on May 20, 1992. The Wilson court's order was subsequently reversed by the Court of Appeals of Tennessee, Middle Section, which determined that the Wilson court did not have subject matter jurisdiction.
Mother argues that the orders of the DeKalb court are void because that court lacked jurisdiction under Indiana's enactment of the Uniform Child Custody Jurisdiction Act (UCCJA). 2 She argues that Tennessee, not Indiana, is the home state of the children; therefore, Indiana does not have jurisdiction. She also argues that the trial court violated the Parental Kidnapping Prevention Act, 28 U.S.C. 1738A(e), by entering an ex parte order granting Father temporary custody of the children. According to Mother, failure to comply with the Parental Kidnapping Prevention Act (PKPA) makes the order void.
Mother argues that Tennessee is the children's home state; therefore, under the UCCJA, Tennessee, and not Indiana, has jurisdiction. The UCCJA is the "exclusive method of determining the subject matter jurisdiction of a court in a custody dispute with interstate dimensions." Caban v. Healey (1994), Ind.App., 634 N.E.2d 540. Under the UCCJA and the PKPA, the court which entered the original child custody decree has continuing exclusive jurisdiction until the children and all the parties have left the state. I.C. 31-1-11.6-14; Zillmer v. Lakins (1989), Ind.App., 544 N.E.2d 550; Clark v. Atkins (1986), Ind.App., 489 N.E.2d 90, reh'g denied, trans. denied. The court which has exclusive jurisdiction may, in its discretion, decline to exercise its jurisdiction if it determines a different forum is in a better position to entertain the litigation. I.C. 31-1-11.6-7(a); Clark, 489 N.E.2d 90.
Section 14 of the UCCJA (codified in Indiana as I.C. 31-1-11.6-14 and in Tennessee as T.C.A. 36-6-203) governs modification of custody decrees by other states:
(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction.
When modification of a custody order is sought in a state other than the one from which it issued, the second state's court must first establish a) either the court from which the order originated does not now have jurisdiction or b) the originating court has jurisdiction but has declined to exercise it. Only after it is determined that the court of the originating state does not have jurisdiction or declines to exercise jurisdiction are the factors determining jurisdiction found in I.C. 31-1-11.6-3, including the "home state" test, applicable. Here, the DeKalb court had continuing jurisdiction and there is no indication that it declined to exercise that jurisdiction. Therefore, we do not reach Mother's argument that under the "home state" test, the Wilson court would have jurisdiction.
The DeKalb court entered the original child custody decree in this case and the Father remained in DeKalb County. As part of the original custody decree, the parties agreed the DeKalb court would retain jurisdiction unless the parties agreed otherwise. There is no indication that the DeKalb court declined to exercise its jurisdiction in favor of the Wilson court. We therefore find that the DeKalb court had subject matter jurisdiction.
Mother also argues that the DeKalb court forfeited its jurisdiction by failing to provide her notice as required by the PKPA, 28 U.S.C. 1738A(e), 3 before granting Father's request for emergency temporary custody. Therefore, according to Mother, the court had no jurisdiction when it entered an order on Father's petition for permanent custody. She argues:
under the [Parental Kidnapping Prevention] Act, the DeKalb Circuit Court would have lost any modification jurisdiction it may still have had because of the DeKalb Circuit Court's failure to comply with the notice requirements of the [PKPA], which preempts the Indiana Child Custody Jurisdiction Act under the supremacy clause. Under the unclean hands provision of the PKPA, 28 U.S.C.A. 1738A, Judge Cherry's ex parte ruling should be declared null and void and this Court should declare Tennessee to be the home state and the most convenient forum.
Appellant's Br. 33. We agree 28 U.S.C. 1738A(e), as well as the UCCJA, requires reasonable notice and an opportunity to be heard. Here, however, the DeKalb court was acting in the face of what it determined to be an emergency. The record reflects that Father's petition alleging an emergency was filed on August 14, 1991, and the ex parte order granting Father temporary custody was made on August 16, 1991. On August 22, 1991, Mother received notice of the ex parte order which indicated that Father had requested permanent custody. 4 R. 49. Under the circumstances of this case, that is, an allegation of an emergency where each party lives in a different state, this notice can be considered reasonable. The ex parte order was temporary. Mother had personal notice and an opportunity to be heard before the court made a determination on permanent custody.
In summary, the DeKalb court, the court from which the first custody order originated, retained jurisdiction here.
Mother argues the DeKalb court committed reversible...
To continue reading
Request your trial
-
Cabanaw v. Cabanaw
...method of determining the subject matter jurisdiction of a court in a custody dispute with interstate dimensions." Wilcox v. Wilcox (1994), Ind.App., 635 N.E.2d 1131, 1134; Caban v. Healey (1994), Ind.App., 634 N.E.2d 540, reh'g denied, trans. denied. According to the UCCJL, the court which......
-
Francies v. Francies
...determination. In support of her proposition, Mother cites Brown v. Brown, 463 N.E.2d 310 (Ind.Ct.App.1984), and Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind.Ct. App.1994). In Brown, the trial court entered an ex parte order granting emergency custody of the children to their mother. The trial co......
-
J.G. v. A.K.
...of the children by way of an ex parte order, and no custody hearing was held for over two months. Id. Similarly, in Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind. Ct. App. 1994), the father was granted custody of the children by means of an ex parte order and the mother was not given an opportunit......
-
In re Paternity of RAF
...with Mother. The "home state" analysis engaged in by Mother is not necessary under these circumstances.3See, e.g., Wilcox v. Wilcox, 635 N.E.2d 1131, 1134-35 (Ind.Ct.App.1994) (because Indiana court had continuing jurisdiction by virtue of entering original custody order and because there i......