In the Matter of the Paternity of R.S. (Minor Child): K.B. v. J.S. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Aug 14 2019, 8:54 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
David J. Karnes Jill A. Gonzalez
Tara M. Smalstig Muncie, Indiana
Michael G. Foley
Dennis, Wenger & Abrell P.C.
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of August 14, 2019
R.S. (Minor Child): Court of Appeals Case No.
19A-JP-450
Appeal from the Jay Circuit Court
K.B.,
The Honorable Bob A. Witham,
Appellant-Petitioner, Special Judge
v. Trial Court Cause No.
38C01-1806-JP-20
J.S.,
Appellee-Respondent.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-450 | August 14, 2019 Page 1 of 5
Case Summary
[1] An Ohio court issued a custody order concerning R.S. (“Child”), the daughter
of K.B. (“Mother”) and J.S. (“Father”). Mother later petitioned to modify
custody. An Indiana court denied the petition without reaching the merits,
determining it lacked authority to modify the Ohio order. Mother now appeals.
[2] We reverse and remand.
Facts and Procedural History
[3] In 2016, an Ohio court entered a custody order concerning Child, making
Mother the primary physical custodian. The order incorporated a Shared
Parenting Plan with the following provision: “If Mother moves outside of
Warrick County, Indiana, then Father shall be the primary caregiver.” App.
Vol. 2 at 19. In 2018, Mother moved to transfer the case to Jay County,
averring that Mother and Father lived in Indiana and Child had lived in
Indiana for more than six months preceding the motion. Mother also filed
notice of her intent to relocate to Atlanta. Father objected, asserting that—
pursuant to the Ohio order—if Mother relocated, he would become the primary
physical custodian. Mother then petitioned to modify the custody order.
Father filed an objection. Father also filed a document captioned Verified
Petition to Enforce the Court Order and Verified Petition for Contempt in
which he acknowledged the Indiana court “obtained jurisdiction” over the
matter. Id. at 52. The court later held an evidentiary hearing on the petition to
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modify custody. In its ensuing order, the court denied the petition, concluding
it was “without authority to modify the Order of the Ohio Court with respect to
the issue of any move by Petitioner outside of Warrick County, Indiana.” Id. at
6. Mother then filed a motion to correct error, which the trial court denied.
[4] Mother now appeals.
Discussion and Decision
[5] “We typically review a trial court’s ruling on a motion to correct error for an
abuse of discretion.” State v. Reinhart, 112 N.E.3d 705, 709-10 (Ind. 2018). To
the extent the ruling rests on a question of law, our review is de novo. See id.Here, the underlying ruling was the denial of a petition to modify custody, with
the trial court concluding it lacked authority to modify an out-of-state order.
[6] The Uniform Child Custody Jurisdiction Act (“UCCJA”) applies to custody
matters with interstate dimension. See Ind. Code art. 31-21. “A decision to
retain or relinquish jurisdiction under the UCCJA is reviewed for an abuse of
discretion,” which “occurs when the trial court’s decision is clearly against the
logic and effect of the circumstances before it, or if the court has misinterpreted
the law.” Hays v. Hockett, 94 N.E.3d 300, 304 (Ind. Ct. App. 2018), trans. denied.
[7] In the absence of emergency circumstances, an Indiana court has authority to
modify a custody order from a sister state if (1) “an Indiana court has
jurisdiction to make an initial determination” as provided in Indiana Code
Section 31-21-5-1, and (2) “an Indiana court or a court of the other state
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determines that: (A) the child; the child’s parents; and (C) any person acting as
a parent; do not presently reside in the other state.” I.C. § 31-21-5-3. A court
may make an initial determination if “Indiana is the home state of the child on
the date of the commencement of the proceeding.” I.C. § 31-21-5-1. The home
state of the child is “the state in which a child lived with: (1) a parent; or (2) a
person acting as a parent; for at least six (6) consecutive months immediately
before the commencement of a child custody proceeding.” I.C. § 31-21-2-8.
[8] At the evidentiary hearing, it was undisputed Mother, Father, and Child resided
in Indiana—not Ohio. It was also undisputed Child lived in Indiana with
Mother for the pertinent time period. Indeed, part of the hearing focused on
custody exchanges taking place “since 2016” between Mother’s residence in
Newburgh and Father’s residence in Dunkirk. Tr. at 29. Moreover, we note
Father does not directly dispute the court’s authority to reach the merits of the
petition. He does not cite to the UCCJA, and he makes no attempt to dispute
that Mother, Father, and Child lived in Indiana at times pertinent to provisions
of the UCCJA. Father instead asserts the court “had discretion to rule as [it]
did.” Br. of Appellee at 8. He argues Mother should have appealed the Ohio
order, and he discusses issues bearing on the merits of Mother’s petition.
[9] We conclude the court had authority to modify the Ohio custody order, and it
erred as a matter of law by denying the petition for lack of authority. We
reverse and remand for consideration of the petition and a ruling on its merits.
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[10] Reversed and remanded.
Najam, J., and May, J., concur.
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