Cox v. Lewis

536 N.E.2d 520, 1989 Ind. App. LEXIS 199
CourtIndiana Court of Appeals
DecidedApril 5, 1989
DocketNo. 57A03-8810-CV-326
StatusPublished
Cited by1 cases

This text of 536 N.E.2d 520 (Cox v. Lewis) 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
Cox v. Lewis, 536 N.E.2d 520, 1989 Ind. App. LEXIS 199 (Ind. Ct. App. 1989).

Opinions

STATON, Judge.

Ada R. Lewis brings this interlocutory appeal to challenge an order entered in the Noble Circuit Court denying her motion to dismiss.1 The motion was tendered in response to the trial court’s grant of a Verified Petition for Emergency Modification of Child Custody filed by Lewis’s former husband, William A. Cox. Lewis contends on appeal that the trial court erred in determining that it possessed subject matter jurisdiction to modify a Kentucky child custody decree.

Reversed and remanded.

The marriage of William Cox and Ada . Lewis was dissolved on August 6, 1984 in the Morgan Circuit Court, Morgan County, Kentucky. Under the dissolution decree, Lewis was awarded custody of the couple’s two minor children while Cox received visitation rights. Since her divorce from Cox, Lewis has continually resided in Kentucky with her children. Cox now lives in Noble County, Indiana.

In March of 1988, Cox assumed temporary custody of both children by mutual agreement of the parties. The purpose of the temporary change of custody was to provide for the special educational needs of one of their children which could not be met in the Kentucky school system. Pursuant to the agreement, both children were enrolled in the Noble County school system for the remainder of the 1987-1988 school year and returned to Lewis at the completion thereof.

On September 16, 1988, Cox was informed by a Kentucky social worker and one of Lewis’s relatives that Lewis had left her children with her current husband several days earlier, that her whereabouts were unknown, and that his children wished to speak with him. Cox drove to Kentucky the next day and located his children at their grandmother’s house. Cox then met with Lewis’s husband and other members of her family, none of whom had information concerning where Lewis was or how she could be reached. With the assistance of Lewis’s family and husband, Cox gathered his children, packed their clothing and brought them to his home in Indiana. The children have since resided with their father and attended school in Noble County.

On September 22, 1988, Cox filed a petition in the Noble Circuit Court seeking an emergency temporary modification of child custody. No steps were taken to modify custody in Kentucky. The trial court immediately issued an ex parte order granting Cox’s petition and further ordered Lewis to appear before the court and show cause why the 1984 Kentucky child custody decree should not be modified. Lewis responded one week later with a motion to dismiss for lack of subject matter jurisdic[522]*522tion.2 Thereafter, the trial court scheduled a hearing to allow the parties to present evidence concerning the jurisdiction issue.

At the conclusion of the hearing, the trial court entered its findings as follows:

* * * * * *
3. The Petitioner has been a resident of the State of Indiana for a period of time prior to March of 1988, and pursuant to I.C. 31-l-11.6-3(a)(2), the Court finds that it is in the best interest of the children that this Court assume jurisdiction because the Petitioner, one of the contestants, has a significant connection with this State in that he is a resident here and the children are presently here on the basis of members of the Respondent’s family requesting that the Petitioner provide for the children, and he has placed them in the same school system they were in previously, which placement was previously agreed upon by the Petitioner, and the Respondent as being in the best interest of the children for educational benefits, and the Court finds further that there is available in this State evidence concerning the children's present and future care, protection, training, and personal relationships.
4. Pursuant to the evidence the Court has heard and the above Findings, which are reflected by the evidence, the Court finds that the Respondent’s Motion to Dismiss should be denied and this cause should continue pending here for the purpose of allowing the parties and this Court to secure additional information to determine this Court’s jurisdiction under the Uniform Child Custody Jurisdiction Act.
$ sfc * * * *

(R.l: 14-16.)

Thereafter, Lewis brought this interlocutory appeal seeking a resolution to the issue of whether the Noble Circuit Court exercised jurisdiction in this case in contravention of the Uniform Child Custody Jurisdiction Act (hereinafter referred to as “the Act”). We conclude that it did.

There are several means by which to acquire jurisdiction under the Act, most notably by meeting the requirements of either the “home state” or the “significant connections” tests outlined in Section 3. West’s AIC 31-1-11.6-3(a)(1), (2). These provisions are designed with a flexibility which often results in the existence of jurisdiction over a child custody dispute in more than one state. Brokus v. Brokus (1981), Ind.App., 420 N.E.2d 1242, 1247. This particular phenomenon is not without a compelling purpose. By creating several places of initial jurisdiction, the Act seeks to promote the best interests of children involved in custody disputes by ensuring that their cases are decided in courts which have the greatest access to relevant information. IC 31-1-11.6-1(a)(2), (3); Moody v. Moody (1986), Ind.App., 488 N.E.2d 378, 381. However, the Act further seeks to avoid jurisdictional conflicts between states which in the past have “resulted in the shifting of children from state to state with harmful effects on their well-being.” IC 31-l-11.6-l(a)(l). To this intent, the Act is also designed so that jurisdiction is only the first of several hurdles a court must clear before it may exercise what jurisdiction is conferred pursuant to Section 3.

The case before us is a prime illustration of jurisdiction which exists but may not be exercised. The trial court in this case determined that Indiana has jurisdiction over this child custody dispute via the “significant connections” test.3 We do not dispute its findings in this regard. However, the trial court failed to take the next step of [523]*523considering separate sections of the Act placing restrictions on the exercise of its jurisdiction. Stated succinctly, “once a custody decree has been rendered in one state, jurisdiction is determined by sections 8 and 14.” State ex rel. Marcrum v. Marion County Superior Court, Etc. (1980), 273 Ind. 222, 403 N.E.2d 806, 810; citing National Conference of Commissioners on Uniform State Laws, Note to U.C.C.J.A. § 6 (1968), 9 U.L.A. 134, 135 (1979).

Section 8 of the Act is a discretionary provision inapplicable to the fact pattern before us. See IC 31-1-11.6-8. However, Section 14 is a mandatory provision specifically addressing the jurisdictional priorities attendant to the modification of a foreign child custody decree. Therein it is stated:

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Related

In Re Custody of Cox
536 N.E.2d 520 (Indiana Court of Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
536 N.E.2d 520, 1989 Ind. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-lewis-indctapp-1989.