Jennifer L. Barwick v. Joseph A. Ceruti , 2015 Ind. App. LEXIS 390 ( 2015 )

May 11 2015, 10:55 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu Michael H. Michmerhuizen
Alex Beeman Fort Wayne, Indiana
Ciobanu Law, P.C.
Cornelius B. Hayes
Indianapolis, Indiana
Hayes & Hayes
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jennifer L. Barwick, May 11, 2015
Appellant-Respondent, Court of Appeals Case No.
02A05-1407-DR-350
v. Appeal from the Allen Superior
Court
Joseph A. Ceruti, The Honorable Charles F. Pratt,
Judge
Appellee-Petitioner
Case No. 02D08-1306-DR-841
Vaidik, Chief Judge.
Case Summary
[1] Jennifer Barwick (Mother) moved to Indiana from Canada in March 2013. She
lived with Joseph Ceruti (Father) and became pregnant six weeks later. Mother
and Father were married in May 2013. After marital difficulties, Mother
returned to Canada three months after she arrived in Indiana. Father filed a
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petition for dissolution and a motion to preserve and retain jurisdiction of final
orders for the child that was expected to be born on December 25, 2013.
Following a hearing where Mother appeared telephonically, the trial court
issued a December 2, 2013 order concluding that it had jurisdiction over the
unborn child’s custody. When the child was born two weeks later, Mother did
not tell Father about the child’s birth or include Father’s name on the birth
certificate. On December 20, the Ontario Superior Court of Justice, which is
the Canadian trial court, issued an ex parte order that K.M. would reside with
Mother. In May 2014, the Indiana trial court held a hearing on the dissolution
petition and awarded custody of the child to Father.
[2] Mother argues that the trial court never obtained exclusive and continuing
jurisdiction and, even if it did, the court should have deferred jurisdiction to the
Canadian court when it became involved in the case at the end of December
2013. However, because the trial court made a child-custody determination, we
find no error. Mother also argues that even if the Indiana court had
jurisdiction, it should have relinquished it to Canada because Canada is a more
appropriate forum. However, our review of the evidence reveals that Indiana
was the appropriate forum, and the trial court did not err. We therefore affirm
the trial court.
Facts and Procedural History
[3] On March 2, 2013, Mother arrived in Fort Wayne, Indiana, from Ontario,
Canada, and moved in with Father, an established local business owner. Six
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weeks later, Mother was pregnant. Father and Mother were married on May
13, 2013, in Florida. Mother listed her Indiana address on the marriage license.
Because of marital difficulties, Mother told Father that she was returning to
Canada. On June 18, Father filed a petition for dissolution.
[4] On July 5, 2013, counsel Melissa Avery filed an appearance on behalf of
Mother. On August 5, 2013, Father filed a motion to preserve and retain
jurisdiction of final orders concerning custody, parenting time, and child
support for the child of the marriage that was expected to be born on December
25, 2013. Four days later, Avery filed a motion to withdraw. On August 28,
2013, counsel Christopher LaPan filed an appearance on behalf of Mother.
That same day, Mother filed a petition to annul the parties’ marriage, a motion
for an expedited hearing on her petition, and a motion for telephonic testimony
wherein she conceded that the trial court had “ongoing jurisdiction over the
subject matter and parties in this cause of action.” Appellee’s App. p. 4. On
October 9, 2013, Mother filed a motion to dismiss her petition to annul, which
the trial court granted. Less than a week later, attorney Christopher LaPan
filed a motion to withdraw his appearance.
[5] On October 21, 2013, the trial court held a hearing on Father’s motion to
preserve and retain jurisdiction of the final orders concerning custody, parenting
time, and child support. Mother telephoned the trial court from Canada during
the hearing and requested a continuance. The trial court denied Mother’s
request but allowed her to participate in the hearing by telephone. At the
hearing, Father testified that Mother had previously demanded that he pay her
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$100,000 if he wanted to prevent her from getting an abortion. After returning
to Canada, Mother also became involved in a sexual relationship with a former
boyfriend who had previously threatened to kill her. Father expressed concern
for the health and safety of his unborn child.
[6] On December 2, 2013, the trial court issued an order finding that the parties’
child was not yet born, there was no case pending in Canada, Father had never
been to Canada, K.M. was conceived in Indiana, the parties lived together in
Indiana, and Father had a business in Indiana. Based on these findings and the
Uniform Child Custody Jurisdiction Act (UCCJA), the trial court concluded
that pursuant to Stewart v. Vulliet, 888 N.E.2d 761 (Ind. 2008), it had the
authority to exercise jurisdiction over the issue of the unborn child’s custody.
In this order, the trial court awarded Father “full and co-equal parenting time
rights with regard to the child when born.” Appellant’s App. p. 41. The trial
court also ordered Mother to include Father’s name on the child’s birth
certificate when the child was born and to provide Father with her current
address. The trial court further ordered Mother to execute consent for the
exchange of information with regard to the child’s prenatal, birth, and post-
birth medical care.
[7] The parties’ child, daughter K.M., was born on December 11, 2013. Mother
did not notify Father of their child’s birth or include his name on the child’s
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birth certificate.1 On December 20, the Ontario Superior Court of Justice
(Court of Justice) issued an ex parte order that K.M. would reside with her
mother and was not to be removed from Ontario. The Court of Justice also
ordered Mother to “issue an application for custody of the child . . . together
will all supporting material on or before February 1, 2014 and serve that
material on the respondent, [Father].” Appellant’s App. p. 117. On January
31, 2014, the Court of Justice stayed Mother’s custody application “pending
argument of the jurisdictional question.” Appellee’s App. p. 34. On March 19,
2014, Justice Patterson of the Court of Justice issued an order finding that the
Court of Justice had jurisdiction over the custody of the child. Specifically, the
justice recognized that there was an outstanding custody order in Indiana but
concluded that the custody order was granted before K.M. was born and was
“of no force or effect in Ontario.” Appellant’s App. p. 122. Accordingly,
Justice Patterson permitted Mother to proceed with her custody application.
[8] On May 9, the Indiana trial court held a hearing on the dissolution petition.
Testimony at the hearing revealed that Mother would not allow Father to see
his daughter. Mother received an ex parte protective order against Father and
told him she would contact the police if he entered her property. She also
threatened to have Father arrested at the Canadian border. Father testified that
Mother had given their daughter a surname that was neither Father’s nor
1
Father learned of his daughter’s birth and saw her first picture on a social-media site two weeks after she
was born.
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Mother’s. Father was not listed on his daughter’s birth certificate so he was not
able to apply for citizenship for her or get her a passport. Father estimated he
had spent $250,000 on American and Canadian attorneys, experts, and private
investigators in an unsuccessful attempt to meet his daughter. Father further
testified that Mother’s brother sent him a threatening email. Last, Father
testified that he had a nursery prepared for K.M. and had hired a nanny to
assist him. He had also found a pediatrician and researched schools in Fort
Wayne.
[9] On July 10, 2014, the trial court took judicial notice of its December 2013 order
and issued an order dissolving the parties’ marriage and determining custody.
Specifically, the trial court found that K.M.’s interests were best served by the
trial court exercising jurisdiction over custody.
[10] The trial court further concluded that Indiana was the appropriate forum to
hear the case for the following reasons: 1) although Father has no history of
domestic violence, Mother has been involved in a relationship with a man who
threatened her; 2) although K.M. has resided in Canada since her birth, her
current domicile is a direct result of Mother’s conduct; 3) given K.M.’s young
age, there are no significant bonds binding her to either jurisdiction because she
has not yet started any school, religious, or community program that would
provide greater evidence regarding her best interests in Canada; 4) Father is a
business owner who has the ability to provide for K.M.’s needs while Mother’s
income is more limited; 5) the distance between Windsor, Canada, and Fort
Wayne is 166 miles, which is an approximately three-hour drive; 6) although
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Mother has said she was not able to enter the United States to participate in a
custody proceeding, immigration attorneys testified she could enter the country
if she presented documentation of the divorce; 7) Mother obtained an ex parte
order in Canada precluding Father from contacting her, and she has not
complied with any of the trial court’s orders that were calculated to preserve
Father’s rights to K.M., such as Mother placing his name on the birth certificate
or even advising him of his daughter’s birth; 8) Mother did not challenge
jurisdiction at the beginning of the case; 9) significant evidence about the
marriage, the marital estate, and the circumstances of the parties’ relationship
exists in Indiana; 10) ex parte orders have been put in place against Father in
Canada, but Mother has been afforded due process in Indiana; and 11) the
present case was the first one initiated with regard to the marriage and custody
of the child, and Mother has had the opportunity to participate in all hearings.
Father has not participated in the Canadian proceedings.
[11] After determining that it had jurisdiction over the custody of K.M. and that
Indiana was the appropriate forum, the trial court awarded custody of the child
to Father. Mother appeals.2
Discussion and Decision
2
On October 2, 2014, the Court of Appeal for Ontario affirmed the Court of Justice’s March 19, 2014 order and
on November 14, 2014, the Court of Justice awarded custody of K.M. to Mother and ordered Father to pay
Mother $1,077 per month in child support.
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I. Jurisdiction
[12] Mother first contends that the trial court did not have “jurisdiction over the
custody of K.M.” Appellant’s Br. p. 11. Specifically, she appears to argue that
the Indiana trial court never obtained exclusive and continuing jurisdiction over
the case, and even if it did, it should have deferred jurisdiction to Canada when
the Court of Justice issued its ex parte order on December 20, 2013, preventing
the removal of K.M. from Canada.
[13] Mother, however, has waived appellate review of this issue because she
expressly consented to the trial court’s authority to determine her daughter’s
custody when she conceded that the trial court had “ongoing jurisdiction over
the subject matter and parties in this cause of action” after Father filed his
motion to preserve and retain jurisdiction of final orders concerning custody
and parenting time, Appellee’s App. p. 4, requested a continuance of the
October 21, 2012 hearing on this motion, and subsequently participated in the
hearing telephonically when her motion was denied. See Williams v. Williams,
555 N.E.2d 142, 145 (Ind. 1990) (stating that Mother’s express consent to trial
court’s authority to determine custody resulted in waiver of jurisdictional issue);
Paternity of B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App. 2014) (explaining that
Father waived his challenge to trial court’s jurisdiction when he consented to
trial court appointing guardian for his daughter).
[14] Waiver notwithstanding, we find no error. Under the UCCJA, an Indiana
court has an affirmative duty to question its jurisdiction when it becomes aware
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of an interstate dimension in a child-custody dispute.3 Bowles v. Bowles, 721
N.E.2d 1247, 1249 (Ind. Ct. App. 1999). When confronting an interstate
custody dispute, the trial court must engage in a multi-step analysis to
determine: 1) whether it has subject-matter jurisdiction; 2) whether there is a
custody proceeding pending in another state which would require the court to
decline its jurisdiction; and 3) whether the trial court should exercise its
jurisdiction because Indiana is the most convenient forum. Id.[15] We review a trial court’s UCCJA jurisdiction determination for an abuse of
discretion. Id. 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. Id. The court also abuses its discretion when it misinterprets or
misapplies the law. Id.[16] The UCCJA provides that a trial court has jurisdiction if Indiana is the home
state of the child when the proceedings were commenced or the home state
declines to exercise jurisdiction. Ind. Code § 31-21-5-1. For the purposes of the
UCCJA, the home state of a child less than six months old is the state in which
the child has lived since birth with a parent. Ind. Code § 31-21-2-8.
3
Although neither party challenges the status of Canada as a state under the UCCJA, we note that the
statute defines “State” as a “state of the United States, the District of Columbia, Puerto Rico, the United
States Virgin Islands, or a territory or an insular possession subject to the jurisdiction of the United States.”
Ind. Code § 31-21-2-19. However, this Court has broadly interpreted “state” to include foreign countries. See
Ruppen v. Ruppen, 614 N.E.2d 577 (Ind. Ct. App. 1993) (concluding Italy was a “state” for the purposes of the
UCCJA, which was known as the UCCJL before its recodification in 2007).
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[17] However, where, as here, a parent files his or her petition before the child is
born, the child does not have a home state when the proceedings were
commenced, and no other state has custody jurisdiction over her because she
has not been born, Indiana has child-custody jurisdiction. See Stewart, 888
N.E.2d at 765. This jurisdiction is exclusive and continuing so long as the
Indiana court has made a child-custody determination. Ind. Code § 31-21-5-2.
A child-custody determination is a “court order providing for . . . legal custody,
physical custody, or visitation . . . .” Ind. Code § 31-21-2-4.
[18] Here, Mother first argues that the Indiana court did not have exclusive and
continuing jurisdiction because it did not issue a legal or physical custody order
before the Canada court’s December 20 order. However, a child-custody
determination also includes a visitation order. See id. The trial court’s
December 2, 2013 order awarded Father “full and co-equal parenting time
rights with regard to the child when born.” Appellant’s App. p. 41. The phrase
“parenting time” is now used instead of the term “visitation” to emphasize the
importance of time spent with the child. J.M. v. N.M., 844 N.E.2d 590, 599 n.6
(Ind. Ct. App. 2006). Because the trial court’s December 2, 2013 order
provided for visitation, the trial court assumed exclusive and continuing
jurisdiction at that time.
[19] We further note that although Canada later became K.M.’s home state, Indiana
did not necessarily lose jurisdiction. See Stewart, 888 N.E.2d at 766. “The mere
fact that the child and her custodial parent live in another state does not compel
dismissal.” Id. Although the physical presence of the child is desirable, it is not
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a prerequisite for jurisdiction to determine custody. Ind. Code § 31-21-5-1(c).
Here, the trial court issued a child-custody determination on December 2, 2013.
Because a custody case was already pending in Indiana in conformity with the
UCCJA, when K.M. was born on December 11, the Indiana trial court could
have either continued jurisdiction or deferred it to Canada. See Stewart, 888
N.E.2d at 766. In its July 10, 2014 order, the trial court determined that it
would continue to exercise jurisdiction over the case. Specifically, the trial
court explained that Father has never lived in Canada, Mother lived in Indiana,
K.M. was conceived in Indiana, Father owns a business and real estate in
Indiana, Mother only recently became employed in Canada, and the parties
own real estate in Indiana. Based upon this evidence, the trial court did not
abuse its discretion in continuing jurisdiction over K.M.’s custody.
II. Appropriate Forum
[20] Mother next argues that even if the trial court has jurisdiction, Indiana is not
the appropriate forum. Under the UCCJA, a trial court may decline to exercise
its jurisdiction any time before issuing a decree if it finds that it is an
inconvenient forum and that a court of another state is a more appropriate
forum. Ind. Code § 31-17-3-7. A court’s decision as to whether to exercise
jurisdiction is reviewable for an abuse of discretion. Stewart, 888 N.E.2d at 766.
In reviewing the court’s decision, we consider only the evidence most favorable
to the decision and reverse only where the result is clearly against the logic and
effect of the facts and the reasonable inferences to be drawn therefrom. Id.
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[21] In determining whether to relinquish its jurisdiction to a more convenient
forum, a court is required to consider whether it is in the child’s interest that
another state assume jurisdiction. Id. In making that determination, the court
may consider the following factors:
(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 what 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 issue in
the pending litigation.
Ind. Code § 31-21-5-8(b).
[22] Here, the trial court thoroughly reviewed each of these factors and noted that 1)
Father has no history of domestic violence, but Mother was involved with a
man who threatened her; 2) although K.M. has resided in Canada since her
birth, her current domicile is a direct result of Mother’s conduct; 3) the Indiana
trial court is three hours from Ontario, Canada; 4) Father is a longtime business
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owner who has the resources to provide for K.M.’s needs while Mother’s
income is more limited; 5) K.M. has no significant bonds to either jurisdiction
because she has not yet started any school, religious, or community program
that would provide greater evidence regarding her best interests in Canada; 6)
Mother has obtained an ex parte order in Canada precluding Father from
contacting her and has not complied with any of the Indiana trial court’s orders
that were calculated to preserve Father’s rights to K.M.; 7) Mother did not
challenge the Indiana trial court’s jurisdiction at the beginning of the case; 8)
significant evidence about the marriage, the marital estate, and the
circumstances of the parties’ relationship exists in Indiana; 9) ex parte orders
have been issued against Father in Canada, but there are no such orders against
Mother in Indiana; and 10) the present case was the first one initiated with
regard to the marriage and custody of the child.
[23] We further note that the two primary purposes of the UCCJA are to discourage
forum shopping and to protect the best interests of the child. Bowles, 721
N.E.2d at 1250. Both of these purposes would be served by the Indiana court
continuing to exercise jurisdiction over the case. The trial court did not abuse
its discretion in concluding that Indiana is a convenient forum for the resolution
of this case.
[24] Affirmed.
Baker, J., and Riley, J., concur.
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