Watkins v. Eden

798 N.E.2d 556, 2003 Ind. App. LEXIS 2147
Indiana Court of Appeals·Decided November 17, 2003·No. No. 21A04-0302-CV-87·Published·Cited by 1 cases

Opinion

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant, Edward Watkins (Father), appeals the trial court's Order on Custody, Support and Visitation.

We affirm.

ISSUE

Father raises one issue on review, which we restate as follows: whether a finding by a judge of an Indiana court that a judge of an out-of-state court, which would otherwise have jurisdiction, declined that jurisdiction in a conversation over the telephone is sufficient to support exercise of jurisdiction in Indiana under the Uniform Child Custody Jurisdiction Law (UCCJL).

FACTS AND PROCEDURAL HISTORY

Father and Appellee, Janelle Eden (Mother), were divorced in Texas in 1995. The Decree of Divorce granted Father custody of their minor child, A.N.W. Eventually, Mother moved to Indiana. Father and AN.W. remained in Texas. The last entry docket of the original divoree action in Tarrant County, Texas, was the Decree of Divorce issued in 1995. In December of 2000, A.N.W. visited Mother in Indiana for the Christmas holiday. A.N.W. has resided with Mother in Con-nersville, Indiana, since December of 2000. Additionally, A.N.W. has attended school in Indiana since January of 2001 at Grand-view Elementary.

On April 17, 2002, Father showed up at Grandview Elementary during school hours. The school notified the police and Mother. Mother immediately contacted her counsel. Mother's counsel requested an emergency hearing based upon the fact that Father was in Indiana from Texas. There was also concern that the matter was too sensitive to settle without a court order. Senior Judge Robert L. Reinke (Judge Reinke) was available on this date for an emergency hearing.

Before holding a hearing on Mother's Verified Petition to Transfer and Assume Jurisdiction and to Modify Custody Decree of Another State, Judge Reinke contacted Judge Sullivan, the presiding Judge of the Tarrant County, Texas court. This Texas [559]*559court entered the Decree of Divorcee between Father and Mother on December 15, 1995. After discussing the situation, Judge Sullivan advised Judge Reinke that there were no pending proceedings concerning A.N.W. or between Father and Mother in Tarrant County, Texas. Further, Judge Sullivan informed Judge Reinke under the circumstances of the emergency petition, i.e. A.N.W. has lived in Indiana since December of 2000 and AN.W. has attended school in Indiana since January of 2001, he did not want to continue jurisdiction of this matter in Texas. As a result, Judge Sullivan of Tarrant County, Texas declined jurisdiction because he "believed [Indiana] should properly go ahead and decide the issues of custody here." (Transeript p. 5) Therefore, the Indiana court assumed jurisdiction.

Specifically, on April 17, 2002, the trial court entered its Order Assuming Jurisdiction and Granting Temporary Custody. The Order stated the following:

Comes now Janelle Eden (Mother), in person and with counsel, Bette Jo Jones, and [Father], in person, for emergency hearing in this matter on April 17, 2002. The Court finds as follows:
1. The Tarrant County District Court has declined jurisdiction in this matter. .
2. The last entry on the docket of the original divorce action in Tarrant County, Texas, was the Decree issued in 1995.
3. The minor child, [A.N.W.], has resided with [Mother], in Connersville since December 25, 2000.
4. The minor child has attended Grand-view School since January, 2001.
5. [Father] resides at 3850 Western Center Blvd. # 839, Fort Worth, Texas 76187.
6. Indiana is the home state of the child herein and has been for more than the six (6) months prior to this proceeding.
7. [Mother] requests that a Guardian Ad Litem or Court Appointed Special Advocate be appointed.
Based upon the foregoing findings, this Court assumes jurisdiction in this matter in accordance with the Uniform Child Custody Jurisdiction Law. The Court further ORDERS that:
1. [Mother] is hereby granted temporary. custody of the minor child, [A.N.W.].
2. The minor child herein is not to be removed from Fayette County, Indiana, until further order of this Court.
3. [Father] is granted visitation immediately following this hearing and is ordered to return the child to the mother's home at 8:00pm on this same date. ©
4. [Father] is granted email and telephone contact with the minor child. Telephone contact may occur specifically between 3:80pm and 5:00pm on Mondays and Fridays and generally at such other reasonable times as the parties may agree.
5. The parties are hereby ordered not to discuss the proceedings of this case with the child or within earshot of the child. '
6. Any order heretofore ordered for the support of A.N.W. is hereby vacated.
7. A final hearing is set in this matter for the 80th of May, 2002, at 10:80am.

(Appellant's Attached Appendix p. 1).

On May 8, 2002, Father filed a Motion to Correct Error and a Motion to Dismiss. In the motions, Father asserted that the Texas court retained exclusive jurisdiction [560]*560until it declined jurisdiction under Texas law and that Indiana did not have proper jurisdiction over this matter. On May 28, 2002, Mother filed a Response to Father's Motion to Correct Error and Motion to Dismiss and a Memorandum in Support of her Response to Father's Motion to Correct Error and Motion to Dismiss. On May 30, 2002, a hearing was held on these motions. The issue was taken under advisement. However, the trial court, with the consent of the parties, lifted Paragraph 2 of its April 17, 2002 Order.

On June 12, 2002, the trial court denied Father's Motion to Correct Error and Motion to Dismiss. On September 9, 2002, the trial court ordered Father to pay $95 a week in child support for A.N.W. pending final resolution of this matter. On January 28, 2003, the trial court issued its Order on Custody, Support, and Visitation. Mother was awarded legal and physical custody of A.N.W. Father was ordered to pay support in the amount of $95 a week. He was also granted visitation.

Father now appeals.

DISCUSSION AND DECISION

I. Jurisdiction under UCCJA

Father argues that the Indiana court improperly exercised jurisdiction in this case. Specifically, Father asserts that because Texas had continuing exclusive jurisdiction over custody matters concerning A.N.W., Indiana could not have jurisdiction over this matter unless Texas declined jurisdiction. Father maintains that Texas did not properly decline jurisdiction in this matter and as a result, jurisdiction remained in Texas.

A. Standard of Review

In determining whether a trial court has improperly exercised jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), we apply an abuse of discretion standard. Paternity of R.A.F., In re, 766 N.E.2d 718, 723 (Ind.Ct.App.2002). An abuse of discretion occurs 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. Id.

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Watkins v. Eden, 798 N.E.2d 556, 2003 Ind. App. LEXIS 2147 (Ind. Ct. App. 2003).

798 N.E.2d 556 (Watkins v. Eden) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Re Custody of ANW
798 N.E.2d 556 (Indiana Court of Appeals, 2003)