Kyle J. Wilkinson v. Danielle A. Assante, And Paul Assante and Jennifer Assante ( 2018 )

FILED
Jul 26 2018, 8:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Jared Michel Thomas Jason M. Spindler
Evansville, Indiana Princeton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle J. Wilkinson, July 26, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-DR-327
v. Appeal from the Gibson Circuit
Court
Danielle A. Assante, The Honorable Jeffrey F. Meade,
Appellee-Respondent, Judge
Trial Court Cause No.
And 26C01-1602-DR-273
Paul Assante and Jennifer Assante,
Appellees-Intervenors.
Riley, Judge.
Court of Appeals of Indiana | Opinion 18A-DR-327 | July 26, 2018 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Petitioner, Kyle Wilkinson (Father), appeals the trial court’s Order,
granting Appellee-Respondent’s, Danielle Assante (Mother), motion to dismiss
Father’s petition to modify custody of their minor children, A.W & Ai.W.
(Children), pursuant to the Indiana Uniform Child Custody Jurisdiction Act.
[2] We affirm.
ISSUE
[3] Father raises one issue for our review, which we restate as: Whether the trial
court abused its discretion when it declined to continue its jurisdiction over the
Children based on the application of the Indiana Uniform Child Custody
Jurisdiction Act (UCCJA).
FACTS AND PROCEDURAL HISTORY
[4] Father and Mother are the biological parents of A.W., born July 2, 2009, and
Ai.W., born May 16, 2010—both Children were born in New Jersey. The
Parents were never married, but resided together and Father executed a
paternity affidavit for both Children. During 2010 and 2011, the New Jersey
Division of Youth and Family Services became involved with the family. On
May 20, 2010, the Superior Court of Sussex County in New Jersey (Sussex
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County trial court) awarded temporary legal and physical custody of Ai.W. 1 to
Maternal Grandmother. On August 31, 2010, the Sussex County trial court
continued Maternal Grandmother’s temporary legal and physical custody of
Ai.W. but awarded Parents supervised visitation. On February 15, 2011, the
Sussex County trial court ordered physical and legal custody of Ai.W. to be
transferred to Parents and on June 17, 2011, the State of New Jersey terminated
its involvement with the family because the Children had been returned home
and all of the conditions causing the removal of the Children had been
remedied. In its Order terminating the court’s involvement, the Sussex County
trial court awarded primary physical custody of the Children to Mother, with
joint legal custody to the Parents.
[5] In March of 2014, Parents and Children moved to Gibson County, Indiana,
where they continually resided until February 2016. On February 6, 2016,
Mother and the Children moved back to New Jersey, while Father continued to
reside in Gibson County, Indiana. The Children have been enrolled in school
in New Jersey ever since.
[6] On February 29, 2016, Father filed an emergency petition to modify custody
with the Gibson County circuit court (trial court). After a hearing and by order
of March 16, 2016, the trial court issued an emergency custody order, awarding
emergency custody of the Children to Father. On March 18, 2016, the Sussex
1
The record is silent as to whether A.W. was included in this Order, or whether she was the subject of other
proceedings.
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County trial court entered a handwritten order in docket No. FD-19-287-11,
stating that the Children were to be returned to the custody of Father, and
afforded Father the right to utilize law enforcement officers to enforce the trial
court’s order. Thereafter, Paul and Jennifer Assante 2 (Maternal Grandparents)
intervened by filing an order to show cause under a new cause number with the
Sussex County trial court requesting it to temporarily restrain Father from
removing the Children from the State of New Jersey. On March 21, 2016, the
Sussex County trial court temporarily restrained Father from removing the
Children and ruled that Maternal Grandparents had thirty days “to file in
Indiana, the home state, to obtain an order as to custody issues.” (Appellant’s
App. Vol. II, p. 83).
[7] On April 20, 2016, Mother moved the trial court to set aside the emergency
custody order and, by agreement of the parties, the trial court granted Maternal
Grandparents’ request to intervene in the cause pending before the Indiana
court. Over the next eighteen months, the parties were involved in discovery
efforts “to get discovery from [Father] and [Father’s] drug treatment program”
from the treatment facility. (Appellant’s App. Vol. II, p. 50). Ultimately, the
Maternal Grandparents, as Intervenors, obtained a motion to compel the third
party for failing to comply with the Indiana Rules of Trial Procedure.
2
Jennifer Assante is the stepmother of Mother and the stepgrandmother of the Children. However, for
convenience sake, maternal grandfather and maternal stepgrandmother will be collectively referred to as
Maternal Grandparents.
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[8] On October 26, 2017, Mother filed a motion to dismiss pursuant to the
UCCJA, to which Father filed an objection on November 2, 2017. After
conducting a hearing on Mother’s motion, on November 27, 2017, the trial
court dismissed Father’s petition for custody, concluding, in pertinent part:
Although it is certainly arguable that the Indiana court initially
had jurisdiction at the time the petition was filed on behalf of
[Father] in this matter, it is evident to this [c]ourt that the State of
New Jersey is now the most appropriate and most convenient
forum to determine the best interest of the [C]hildren as it is now
the state with the closest connections to the [C]hildren and their
family.
(Appellant’s App. Vol. II, p. 51). On December 27, 2017, Father filed a motion
to correct error, which was summarily denied by the trial court on January 9,
2018.
[9] Father now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[10] Father contends that the trial court abused its discretion by dismissing his
petition for custody based on the application of the UCCJA provisions. Where,
as here, the issue at hand deals with an interstate custody determination, the
UCCJA, which is codified at Indiana Code Chapter 31-21-5 governs. One
purpose of the UCCJA is to prevent parents from seeking custody in different
jurisdictions in an attempt to obtain a favorable result. Tamasy v. Kovacs, 929
N.E.2d 820, 825 (Ind. Ct. App. 2010). As such, “[t]he UCCJA has provisions
for the determination of jurisdiction.” Id. Under the UCCJA, an Indiana court
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has an affirmative duty to question its jurisdiction when it becomes aware of an
interstate dimension in a child custody dispute. Christensen v. Christensen, 752
N.E.2d 179, 184 (Ind. Ct. App. 2001). The trial court must first determine
whether it has jurisdiction, and, if it does, whether to exercise that jurisdiction.
Id. at 182. In determining whether a trial court has improperly exercised
jurisdiction under the UCCJA, we apply an abuse of discretion standard.
Tamasy, 929 N.E.2d at 826. 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.[11] Where, as here, the trial court issues special findings and conclusions thereon
pursuant to Indiana Trial Rule 52, “we apply the following two-tiered standard
of review: whether the evidence supports the findings and whether the findings
support the judgment.” Staresnick v. Staresnick, 830 N.E.2d 127, 131 (Ind. Ct.
App. 2005), reh’g denied. The trial court’s findings and conclusions will be set
aside only if they are clearly erroneous, that is, if the record contains no facts or
inferences supporting them. Id. A judgment is clearly erroneous when a review
of the record leaves us with a firm conviction that a mistake has been made. Id.We neither reweigh the evidence nor assess the credibility of the witnesses, but
consider only the evidence most favorable to the judgment. We review
conclusions of law de novo. Id.[12] Turning to the case at hand, after the Sussex County trial court became
involved with the family and granted Mother primary physical custody, with
joint legal custody on June 17, 2011, the parties moved from New Jersey and
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made their residence with the Children in Indiana in March of 2014.
Approximately two years later, in February 2016, Mother and the Children
returned to New Jersey and Father filed a petition to modify custody with the
trial court in Indiana. “An Indiana court may not modify a child custody
determination made by a court of another state unless an Indiana court has
jurisdiction to make an initial determination under section 1(a)(1) or 1(a)(2) of
[Ind. Code Ch. 31-21-5] and (1) the court of the other state determines that: (A)
it no longer has exclusive, continuing jurisdiction under section 2 3 of [I.C. Ch.
31-21-5]” I.C. § 31-21-5-3. When making a determination of custody under
I.C. § 31-21-5-1(a)(1), an Indiana court gains jurisdiction when “(1) Indiana is
the home state of the child on the date of the commencement of the proceeding
or was the home state of the child within six (6) months before the
commencement of the proceeding, and the child is absent from Indiana but a
parent or person acting as a parent continues to live in Indiana.” Because
Indiana was the home state of the Children during the six months prior to
Father’s filing, and the Sussex County trial court relinquished its jurisdiction by
declaring Indiana to be the Children’s “home state” in its order of March 21,
3
Indiana Code section 31-21-5-2 states:
[] an Indiana court that has made a child custody determination consistent with section 1 or 3 of this chapter
has exclusive continuing jurisdiction over the determination until:
(1) An Indiana court determines that: (A) neither (i) the child; (ii) the child’s parents; nor (iii) any
person acting as a parent; has a significant connection with Indiana; and (B) substantial evidence is
no longer available in Indiana concerning the child’s care, protection, training, and personal
relationships; or
(2) An Indiana court or a court of another state determines that: (A) the child’s; (B) the child’s parents;
and (C) any person acting as a parent; do not presently reside in Indiana.
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2016, the Indiana trial court gained exclusive and continuing jurisdiction to
preside over any custody disputes pertaining to the Children. (Appellant’s App.
Vol. II, p. 83); I.C. §§ 31-21-5-1(a)(1); -3. See also In re Custody of A.N.W., 798
N.E.2d 556, 561 (Ind. Ct. App. 2003) (the court that first enters a custody
decree on a matter gains exclusive jurisdiction, but that jurisdiction continues
only until all parties and the children that were the subject of the decree have
left the state), trans. denied
[13] The fundamental principle underlying the UCCJA is that once a court with a
jurisdictional basis exercises jurisdiction over a “custody” issue, that court
retains exclusive jurisdiction over all custody matters so long as a “significant
connection” remains between the controversy and the state, and that court
alone has discretion to decide whether it will defer jurisdiction to the court of
another state upon the basis that the other court is a more convenient forum to
litigate the issue. In re Custody of A.N.W., 798 N.E.2d 556, 561-62 (Ind. Ct.
App. 2003). A “significant connection” remains under the scheme as long as
one parent continues to reside in the state rendering the initial determination.
Id. Accordingly, through the passage of time and by operation of law, Indiana
has now become the Children’s home state.
[14] Nevertheless, the UCCJA provides that “a court with subject matter jurisdiction
over a child custody dispute may nonetheless ‘decline to exercise its jurisdiction
any time before making a decree if it finds that it is an inconvenient forum . . .
under the circumstances . . . and that a court of another state is a more
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appropriate forum.’” Stewart v. Vulliet, 888 N.E.2d 761, 766 (Ind. 2008). In
making this determination, a trial court shall consider
(1) Whether domestic violence has occurred and is likely to
continue in the future and which state is best able to protect
the parties and the child.
(2) The length of time the child has resided outside Indiana.
(3) The distance between the Indiana court and the court in the
state that would assume jurisdiction.
(4) The relative financial circumstances of the parties.
(5) An agreement of the parties as to which state should assume
jurisdiction.
(6) The nature and location of the evidence required to resolve
the pending litigation, including the child’s testimony.
(7) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence.
(8) The familiarity of the court of each state with the facts and
issues in the pending litigation.
I.C. § 31-21-5-8(b). This list is not exclusive, and courts may consider all
relevant factors, including factors not listed. Tamasy, 929 N.E.2d at 827.
[15] In concluding that it was no longer the most convenient forum, the trial court
considered that the Children had resided within the State of New Jersey
continuously since birth, with the exception of a two-year span between March
2014 and February 2016 when they resided in Indiana. Significant family ties
continue to exist in New Jersey with Maternal Grandparents and other
relatives. In evaluating the case in its totality, the trial court determined that
“the majority of the evidence required to resolve the pending custody litigation,
would be in Sussex County, New Jersey, inasmuch as the [C]hildren
themselves” continue to reside there. (Appellant’s App. Vol. II, p. 49). It noted
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that the Children are enrolled in school in Sussex County, the Children’s
therapist is located in Sussex County, and “a host of prior related cases
involving not only the [C]hildren but also the [M]other and [F]ather” have
previously been filed and decided in Sussex County. (Appellant’s App. Vol. II,
p. 49). Because “the court is not limited to considering the parties’
circumstances only as they existed at the time the petition was filed, but rather
can evaluate the case on a continuing basis to ensure the Children’s best
interests are protected,” we conclude that the trial court did not abuse its
discretion in declining to exercise jurisdiction over Father’s petition to modify
custody. Stewart, 888 N.E.2d at 768.
CONCLUSION
[16] Based on the foregoing, we hold that the trial court did not abuse its discretion
when it declined jurisdiction over the Children based on the application of the
UCCJA.
[17] Affirmed.
[18] Kirsch, J. and Vaidik, C.J. concur
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