William Mosher v. Haesuk Yi Mosher ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Feb 17 2014, 9:53 am
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
WILLIAM MOSHER DAVID C. KOLBE
North Webster, Indiana Warsaw, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM MOSHER, )
)
Appellant-Petitioner, )
)
vs. ) No. 43A05-1305-GU-286
)
HAESUK YI MOSHER, )
)
Appellee-Respondent. )
APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable Michael W. Reed, Judge
Cause No. 43C01-1212-GU-68
February 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
William Mosher (“Father”) appeals the trial court’s dismissal of his petition for
guardianship of his incapacitated adult daughter, C.Y.M., for lack of jurisdiction. Because
we conclude that the trial court acted within its discretion in finding jurisdiction to be lacking
based on C.Y.M.’s Florida residency, we affirm.
Facts and Procedural History
Haesuk Yi Mosher (“Mother”) and Father were married in 1979 in Mother’s native
country of South Korea. Thereafter, the couple resided in Alabama. Mother and Father had
two children, a son and a daughter. The daughter, C.Y.M., was born on September 3, 1984.
From birth, C.Y.M. has suffered from a chromosome disorder called Penta X Syndrome. Her
IQ is between thirty and forty, and she has the mental development of a three- to five-year-
old. As a result, she needs supervision and has lived with one or both of her parents for her
entire life. She receives Social Security benefits, which are administered for her benefit by
Mother as her representative payee.
In 1993, Father sought a divorce in Madison County, Alabama. It is unclear whether
the paperwork was finalized, but Mother and Father continued to reside together and were
remarried in 1994 in Tennessee. At some point during 2005 or 2006, they moved to Florida.
On May 11, 2011, Father drafted a “Legal Separation Agreement,” which Mother signed.
The agreement stated that there were no children born to the parties’ marriage. In the fall of
2011, Father moved out, leaving Mother with C.Y.M. He filed a complaint for legal
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separation and then a complaint for dissolution, all in Tennessee. On November 14, 2012,
Mother, acting by counsel, filed a petition for conservatorship over C.Y.M. in Tennessee.
Shortly thereafter, Father contacted Mother about his taking C.Y.M. from Florida to
Indiana to visit some of Father’s relatives. On November 23, 2012, Father signed a notarized
document stating that with Mother’s permission, he was removing C.Y.M. from Florida for
ten days to visit relatives. The document provided that the authorities would be notified if
Father failed to return C.Y.M. to Mother in Florida by 4:00 p.m. on December 2, 2012.
Appellee’s App. at 15. Before he left Florida with C.Y.M., Father filed a report with the
local sheriff claiming that Mother had physically abused C.Y.M. The sheriff reported
Father’s allegations to the Florida Department of Child and Family Services (“FDCFS”). See
Id. at 18 (containing Father’s allegation that Mother “choked [C.Y.M.], hit her with a towel
and spanked her on the legs in the last few months.”). A week later, FDCFS closed the case,
finding in part that collateral interviews produced no evidence that Mother posed a risk to
C.Y.M. Id. at 19.
After Father left Florida with C.Y.M., he took her to visit his and Mother’s son
(C.Y.M.’s brother) in Alabama. Shortly thereafter, the son kicked them out, and Father took
C.Y.M. to North Webster, Indiana, to visit his daughter (C.Y.M.’s half-sister) and her family.
On November 30, 2012, Father sent Mother an email stating that he needed to get new brakes
for his vehicle and would return C.Y.M. to her “next weekend” instead of on December 2.
Id. at 17. On the evening of December 2, 2012, when Father had failed to return C.Y.M. as
agreed, Mother notified the local sheriff’s office, which called Father in Indiana. Father told
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the sheriff that he did not plan to return C.Y.M. at that time. On December 4, 2012, Mother
received a letter from the Social Security Administration indicating that she was being
replaced by Father as C.Y.M.’s representative payee. On December 6, 2012, Father filed a
petition in Kosciusko County, Indiana, seeking appointment as guardian over C.Y.M. The
next day, in furtherance of Father’s petition for guardianship, C.Y.M. underwent a
psychiatric/psychological evaluation in Indiana. That same day, Father’s counsel sent
Mother a letter indicating that C.Y.M. would be returned to Florida soon. The trial court
granted Father’s petition for guardianship on December 20, 2012.
On January 3, 2013, Mother’s petition for conservatorship was dismissed by the
Tennessee trial court for lack of jurisdiction. On January 22, 2013, Mother filed a pro se
motion to set aside the Indiana guardianship order due to insufficient service. At a February
2013 hearing, the trial court advised Mother that there were matters that she had not properly
placed before the court, that she needed to hire Indiana counsel, and that the trial court
needed to continue the guardianship while investigating the matters pending in the Tennessee
court. On March 6, 2013, Mother, acting by counsel, filed a motion to dismiss the
guardianship for lack of jurisdiction. She also alleged that Father had committed certain
improprieties. On March 27, 2013, the trial court met in camera with counsel for both
parties, and after consultation and stipulations were entered, the trial court granted Mother’s
motion to dismiss the guardianship for lack of jurisdiction. Shortly thereafter, the trial court
discovered that the order had not been an agreed order. On April 26, 2013, after each party
submitted a proposed corrective order, the trial court issued an amended order dismissing the
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guardianship for lack of jurisdiction. Father now appeals. Additional facts will be provided
as necessary.
Discussion and Decision
In his pro se appeal, Father contends that the trial court erred in dismissing his
guardianship petition for lack of jurisdiction. He has failed to include the applicable standard
of review in his brief as required by Indiana Appellate Rule 46(A)(8)(b).1 The trial court is
vested with discretion in making determinations concerning the guardianship of an
incapacitated person, and we therefore review using an abuse of discretion standard. In re
Guardianship of Atkins, 868 N.E.2d 878, 883 (Ind. Ct. App. 2007), trans. denied (2008). An
abuse of discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Id. In conducting our review, we neither
reweigh evidence nor judge witness credibility; rather, we consider only the evidence and
reasonable inferences favorable to the judgment. Chavis v. Patton, 683 N.E.2d 253, 256
(Ind. Ct. App. 1997).
Father challenges the trial court’s dismissal of his petition for guardianship for lack of
jurisdiction. In guardianship matters, jurisdiction is governed by Indiana Code Section 29-
3.5-2-3, which states,
A court of this state has jurisdiction to appoint a guardian or issue a protective
order for a respondent if:
(1) this state is the respondent’s home state;
1
See Ind. Appellate Rule 46(A)(8)(b) (stating that “[t]he argument must include for each issue a
concise statement of the applicable standard of review”). It is well settled that pro se litigants are held to the
same standard as licensed attorneys. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005).
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(2) on the date the petition is filed, this state is a significant connection state
and:
(A) the respondent does not have a home state or a court of the
respondent’s home state has declined to exercise jurisdiction because
this state is a more appropriate forum; or
(B) the respondent has a home state, a petition for an appointment or
order is not pending in a court of that state or another significant
connection state, and, before the court makes the appointment or issues
the order:
(i) a petition for an appointment or order is not filed in the
respondent’s home state;
(ii) an objection to the court’s jurisdiction is not filed by a
person required to be notified of the proceeding; and
(iii) the court in this state concludes that it is an appropriate
forum under the factors set forth in section 6 of this chapter;
(3) this state does not have jurisdiction under either subdivision (1) or (2), the
respondent’s home state and all significant connection states have declined to
exercise jurisdiction because this state is the more appropriate forum, and
jurisdiction in this state is consistent with the constitutions of this state and the
United States; or
(4) the requirements for special jurisdiction under section 4 of this chapter are
met.
(Emphases added.)
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Here, Father does not dispute the trial court’s determination that Florida is C.Y.M.’s
home state.2 Rather, he argues that Indiana is a significant connection state with jurisdiction
as outlined in in subparagraph (2)(B). Indiana Code Section 29-3.5-1-2(15) defines a
“significant connection state” as “a state, other than the home state, with which a respondent
has a significant connection other than mere physical presence and in which substantial
evidence concerning the respondent is available.” In other words, Father argues that C.Y.M.
has significant connections with Indiana based on the following: her presence in the state for
approximately two weeks with Father, for what originally was characterized as a visit with
her half-sister; Father’s having obtained a driver’s license and leased a residence; and (after
the date of Father’s filing the guardianship petition) her having undergone a
psychiatric/psychological evaluation. Father also attacks Mother’s motion to dismiss as
untimely under subparagraph clause (2)(B)(ii), asserting that Mother was required to file her
objection to his guardianship petition before the trial court issued the guardianship order,
which she did not. We disagree, finding that for reasons discussed below, we need not
address subparagraph clause (2)(B)(ii).3
2
Indiana Code Section 29-3.5-1-2(6) defines “home state” to mean either
(A) The state in which the respondent was physically present, including any period of
temporary absence, for at least six (6) consecutive months immediately before the filing of a
petition for a protective order or the appointment of a guardian.
(B) In the case of a respondent for whom no state satisfies clause (A), the state in which the
respondent was physically present, including any period of temporary absence, for at least six
(6) consecutive months ending within the six (6) months prior to the filing of the petition.
3
We note that with respect to Mother’s opportunity to object, the record indicates that Father knew
that Mother would be at her sister’s home in Tennessee during C.Y.M.’s time away with him, yet he sent
notice of his Indiana proceedings to two addresses where she would not be present to actually receive the
notification.
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Even assuming that C.Y.M. has significant connections with Indiana, we conclude
that subparagraph (2)(B) does not apply in this case. First, the operative date listed in
subparagraph (2)(B) is “the date of filing,” here, December 6, 2012. The subparagraph
requires not only that Indiana be a significant connection state on the date the guardianship
petition is filed, but also that there be no petitions pending in either C.Y.M.’s home state of
Florida or other significant connection states. On December 6, 2012, Mother’s Tennessee
petition for conservatorship over C.Y.M. was pending (having been filed on November 14,
2012, and not dismissed until January 3, 2013). Mother testified that although she and
C.Y.M. had been Florida residents for seven or eight years, they spent a significant portion of
their time in Tennessee with Mother’s sister.4 She testified that she had filed her
conservatorship petition in Tennessee because the marital dissolution cause was also pending
there and that Father filed the latter in Tennessee based on his ownership of a house there.
At the close of the February 12, 2013 hearing on Mother’s motion to set aside Father’s
Indiana guardianship petition, the trial court indicated its intent to contact the Tennessee
court to investigate the impact of those proceedings on the Indiana guardianship proceedings.
Thus, Tennessee bore a significant evidentiary connection to C.Y.M. As a result, the
pendency of Mother’s Tennessee conservatorship petition at the time of Father’s filing is
4
Mother’s testimony is inconclusive concerning the frequency of her and C.Y.M.’s visits to
Tennessee, i.e., she used phrases such as “live in my sister’s house,” “domiciled in my sister’s house,” and
“stay in my sister’s house from time to time.” Tr. at 10.
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enough to render subparagraph 2(B) inapplicable and therefore not a proper basis for
jurisdiction.5
5
Finally, we note that even in cases where the extensive jurisdictional requirements are met under
Indiana Code Section 29-3.5-2-3, the trial court is afforded broad discretion in exercising jurisdiction as
outlined in Indiana Code Section 29-3.5-2-6. Section 6 addresses the trial court’s determinations concerning
what constitutes a more appropriate forum and clearly gives the court discretion to decline to exercise its
jurisdiction in favor of another state where that other state constitutes a more appropriate forum. Indiana Code
Section 29-3.5-2-6 states,
(a) A court of this state having jurisdiction under section 3 of this chapter to appoint a
guardian or issue a protective order may decline to exercise its jurisdiction if it determines at
any time that a court of another state is a more appropriate forum.
(b) If a court of this state declines to exercise its jurisdiction under subsection (a), it shall
either dismiss or stay the proceeding. The court may impose any condition the court considers
just and proper, including the condition that a petition for the appointment of a guardian or
issuance of a protective order be filed promptly in another state.
(c) In determining whether it is an appropriate forum, the court shall consider all relevant
factors, including:
(1) any expressed preference of the respondent;
(2) whether abuse, neglect, or exploitation of the respondent has occurred or is likely
to occur, and which state could best protect the respondent from the abuse, neglect,
or exploitation;
(3) the length of time the respondent was physically present in or was a legal resident
of this or another state;
(4) the distance of the respondent from the court in each state;
(5) the financial circumstances of the respondent’s estate;
(6) the nature and location of the evidence;
(7) the ability of the court in each state to decide the issue expeditiously and the
procedures necessary to present evidence;
(8) the familiarity of the court of each state with the facts and issues in the
proceeding; and
(9) if an appointment were made, the court’s ability to monitor the conduct of the
guardian.
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Simply put, the trial court acted within its discretion in concluding that it lacked
jurisdiction and in dismissing Father’s guardianship petition. Father’s arguments amount to
invitations to reweigh evidence, which we may not do. Accordingly, we affirm.
Affirmed.
BAKER, J., and NAJAM, J., concur.
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