Ashburn v. Ashburn

661 N.E.2d 39, 1996 Ind. App. LEXIS 121, 1996 WL 63291
CourtIndiana Court of Appeals
DecidedFebruary 15, 1996
Docket34A04-9504-CV-117
StatusPublished
Cited by20 cases

This text of 661 N.E.2d 39 (Ashburn v. Ashburn) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashburn v. Ashburn, 661 N.E.2d 39, 1996 Ind. App. LEXIS 121, 1996 WL 63291 (Ind. Ct. App. 1996).

Opinions

OPINION

CHEZEM, Judge.

Case Summary

Respondent-Appellant, Dina Ashburn (“Mother”), challenges the jurisdiction of the trial court with regard to an order of child custody. We affirm.

Issue

Mother presents one issue for our review, which we restate as: whether the trial court had jurisdiction to rule on the Petition for Custody filed by Petitioner-Appellee, Bryan Ashburn (“Father”).

Facts and Procedural History

The trial court’s Statement of Evidence indicates that Mother and Father were married and resided together with their child in California. Father, originally from Indiana, moved to Indiana in January, 1993. In March, 1993, Mother, without notifying father, took the child and moved to Oregon. Father did not learn of their whereabouts until October, 1993, at which time Mother allowed Father to take the child for a one-month visit to Indiana. Father filed his petition for divorce and child custody nearly two weeks later. The trial court granted Father custody of the child and granted Mother reasonable visitation privileges. Although Mother did not file her own action for custody in Oregon, she challenges the Indiana court’s jurisdiction over the matter.

Discussion and Decision

The issue before us today is whether one parent can gain home state jurisdictional advantage under the UCCJA by taking a child and hiding for six-months in a state unknown to the other parent. Mother appeals the trial court’s grant of custody to Father on jurisdictional grounds. She argues that the trial court did not have jurisdiction under the Uniform Child Custody Jurisdiction Act. I.C. 31-1-11.6-1, et seq. (“UCCJA”). It is Mother’s position that Oregon was the home state of the child when Father requested custody in Indiana. Although the trial court did not expressly state such, it appears from the Statement of Facts and Order of Dissolution that the trial court used the “significant connections” and “best interest of the child” tests in reaching its decision.

The threshold issue, then, is whether the trial court correctly applied the “significant connections” and “best interest of the child” tests or whether the child’s home state was Oregon. While it is true that the child resided in Oregon for six months prior to Father taking the child to Indiana, the particular facts of this case call into question whether that six month residency can be counted toward time in a home state under the UCCJA.

We noted in Ruppen v. Ruppen, 614 N.E.2d 577, 580 (Ind.Ct.App.1993):

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’ prevailed] 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 ... in 1977. 1977 Ind.Acts Pub.L. No. 305, § 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).

Thus, there are two stated purposes behind the UCCJA: first, to discourage child abductions in the name of child custody disputes, and, second, to improve comity between states with regard to matters of child custody. Mindful of the UCCJA’s general [41]*41purposes, we now address the merits of Mother’s appeal.

The UCCJA sets out the method to determine jurisdiction. Williams v. Williams, 555 N.E.2d 142, 145 (Ind.1990). Rather the statute merely operates to restrict the existing power of courts to hear custody cases. Id. Under the UCCJA, an Indiana court has an affirmative duty to question its jurisdiction when it becomes aware of an interstate dimension in a child custody dispute. Id. at 581. The trial court must first determine whether it has jurisdiction, and, if it does, whether to exercise that jurisdiction. Id. In determining whether a trial court has improperly exercised jurisdiction under the UCCJA, we apply an abuse of discretion standard. Moody v. Moody, 488 N.E.2d 378, 381 (Ind.Ct.App.1986). An abuse of discretion will occur when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind.1993).

The UCCJA states, 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 the commencement of the proceeding and the child is absent firom the 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 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;
(3) the child is physically present in this state and the child has been abandoned; 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.
(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this state of the child, or of the child and one [1] of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not prerequisite for jurisdiction to determine his custody.

I.C. 31-1-11.6-3.1

Additionally, I.C.

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Bluebook (online)
661 N.E.2d 39, 1996 Ind. App. LEXIS 121, 1996 WL 63291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashburn-v-ashburn-indctapp-1996.