Michael G. Hays v. Shanna Hays

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cassandra A. Kruse Michael H. Hagedorn
Emswiller, Williams, Noland & Clarke, P.C. Hagedorn Law Office
Indianapolis, Indiana Tell City, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael G. Hays, January 12, 2016
Appellant-Respondent, Court of Appeals Case No.
62A04-1501-DR-33
v. Appeal from the Perry Circuit
Court
Shanna Hays, The Honorable William E.
Appellee-Petitioner Weikert, Special Judge
Trial Court Cause No.
62C01-1201-DR-23
Robb, Judge. Jan 12 2016, 9:30 am
Case Summary and Issues
[1] In 2008, the marriage of Michael Hays (“Father”) and Shanna Hays
(“Mother”) was dissolved pursuant to a Stipulated Decree of Divorce
(“Decree”) in the State of Wyoming. The Decree made provisions for the
custody and support of the parties’ three children, fixing Father’s arrearage
through November 2007 at $27,372.00 and ordering him to pay support of
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 1 of 26
$777.00 per month. In 2011, Father filed petitions for modification of child
custody and visitation in both Wyoming and Wisconsin, where he and the
parties’ oldest child then resided. Wyoming transferred jurisdiction of the
proceeding to Wisconsin. In January 2012, Mother registered the Decree and
petitioned for modification of child support in Indiana, where she and two of
the children were residing. The parties agreed Wisconsin would have
jurisdiction regarding the oldest child and Indiana would have jurisdiction
regarding the two younger children. Father then filed a petition to determine
his child support arrearage in the Wyoming court. The Wyoming court—after
a hearing Mother did not attend—reduced Father’s arrearage to $0.00. Father
was eventually given legal custody of all three children. In December 2014, on
Mother’s Trial Rule 60(B) motion, the Indiana court declared the Wyoming
court’s order on Father’s arrearage null and void.
[2] At the end of 2012, both parties requested allocation of the tax deductions for
the children. At the beginning of 2013, the trial court ordered that neither party
claim the children as dependents on their federal, state, or local tax returns
pending further order of the court. The trial court’s December 2014 order is
silent as to the tax exemptions and the order that neither party claim the
children on their taxes remains in effect.
[3] Father now appeals, raising two issues for our review: 1) whether the trial court
erred in declaring the Wyoming order on arrearage to be null and void; and 2)
whether the trial court erred in failing to address the tax exemptions.
Concluding the trial court’s grant of Trial Rule 60(B) relief to Mother by
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 2 of 26
declaring Wyoming’s arrearage determination null and void is erroneous, we
reverse. Concluding further that the trial court’s order precluding either party
from taking the dependent exemption on their taxes should be vacated, we
remand.
Facts and Procedural History
[4] Father and Mother were divorced in Wyoming in February 2008. Their
Stipulated Decree of Divorce included the following relevant provisions
regarding child support for their three children, N., R., and T.:
It is proper for Mother to have primary custody, care and control
of the minor children, subject to . . . reasonable visitation by
[Father].
***
The parties have agreed that [Father] shall pay child support to
[Mother] in the amount of $777.00 per month. [Father] shall
commence paying child support on December 1, 2007. Father
may be liable for child support arrearages since November 28,
2004. Such arrearages shall be subject to the agreement between
the parties as stated below.
***
It is further ordered, adjudged and decreed that . . . [a]ll child
support payments shall be paid to the Clerk of District Court . . .
Newcastle, Wyoming . . . . The Clerk shall forward the support
payments to [Mother] at the address supplied by [Mother].
It is further ordered, adjudged and decreed that in order to
facilitate payment of child support, immediate income
withholding is required.
***
d. Enforcement. Wyoming Statute § 20-2-113 provides that any
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 3 of 26
installment of child support not paid when due shall
automatically become a judgment against the obligated parent on
the due date. Wyoming Statute § 1-16-103(b) makes child
support not paid within 32 days of the due date subject to a ten
percent (10%) late payment penalty. . . .
e. Changes. For good cause (See Wyoming Statute § 20-2-311)
either party may petition the court for a modification of support.
The parents may agree to increase the obligated parent’s child
support obligation and, if no public funds are being expended for
the support of their children, they may agree to reduce the
obligated parent’s child support obligation. Any modification
agreement must be in writing, signed by both parties, and
accompanied by a financial affidavit on a form approved by the
Wyoming Supreme Court. The agreement and affidavits may be
filed with the clerk and must be approved by the court.
Regardless of the parties’ agreement, modification of child
support is not effective unless it is approved by a written order of
the court.
f. Child Support Arrearages. The parties agree there is a time-
value to money and agree any arrearages which may be owed to
Mother shall be reduced if paid as specified below. The parties
hereby agree that in exchange for sixteen thousand dollars
($16,000.00) cash, payable as follows, Mother shall waive any
arrearages which may be owed to her. Father shall pay two
thousand dollars ($2,000.00) to Mother upon the entry of this
order. Father shall then pay the remaining fourteen thousand
dollars ($14,000.00) within six (6) months of the entry of this
order. If Father fails, neglects, or refuses to pay the entire sixteen
thousand dollars ($16,000.00) within six (6) months after entry of
this order, the full sum of twenty-seven thousand three hundred
seventy-two dollars ($27,372.00) shall become immediately due
and payable by Father to Mother. This sum, if it becomes due
and payable, shall be considered to reflect the unpaid child
support (arrearages) from December, 2004, through November,
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 4 of 26
2007. This sum is and shall be a judgment by operation of law
pursuant to Wyo. Stat. § 20-2-310(c). The judgment shall bear
the statutory rate of interest beginning six (6) months and one (1)
day from the entry of this Order.
Appellant’s Appendix at 137, 141-44 (emphasis omitted).
[5] Soon after the divorce, Mother moved to West Virginia with the children. In
mid-2008, Mother and the children moved to Indiana. At some point prior to
August 2009, Father moved to Wisconsin; in August 2009, N. went to live with
Father. Mother consented to the arrangement but there was no court order
formally modifying custody.
[6] In July 2011, Father filed in the Wyoming court a petition for modification of
child custody and visitation requesting primary physical custody of all three
children be modified. Mother moved to dismiss the petition for lack of
jurisdiction and because Wyoming was an inconvenient forum, citing
provisions from Wyoming’s version of the Uniform Child Custody Jurisdiction
Act (“UCCJA”). See id. at 167-68 (citing Wyo. Stat. Ann. §§ 20-5-302, -307).
Then, in September 2011, Father filed a petition for modification of child
custody and visitation in a Wisconsin court. Following a hearing, the
Wisconsin court issued an order on November 2, 2011, finding that Wisconsin
was the home state of Father and N.; Indiana was the home state of Mother
and the other two children, but no action regarding custody had been
commenced in Indiana; and Wyoming was no longer the home state of either
party or their children. Accordingly, “the Court finds it has jurisdiction and
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 5 of 26
Wisconsin is a proper forum to modify the parties’ previous Wyoming order
regarding legal custody and physical placement of the parties’ minor children.”
Id. at 187 (citing Wis. Stat. ch. 822.32(2), Wisconsin’s version of UCCJA). On
November 28, 2011, the Wyoming court issued an order transferring
jurisdiction to Wisconsin.
[7] In January 2012, Mother registered the Decree in Perry County, Indiana, and
filed a petition to modify Father’s parenting time and child support. Father
initially objected to the Indiana court’s jurisdiction, but in May 2012, the parties
agreed that Wisconsin would continue to have jurisdiction regarding N., and
Indiana would have jurisdiction regarding R. and T. Father then filed a
petition to modify custody of R. and T. in the Indiana court. In August 2012,
the Wisconsin court issued an order granting temporary legal and physical
custody of N. to Father, stating, “[n]o child support for the parties’ minor child
[N.] is ordered at this time.” Id. at 189.
[8] On June 13, 2012, Father filed a petition to determine child support arrears in
the Wyoming court, alleging:
1. That the [Wyoming court] ordered [Father] to pay child
support to [Mother] in the Stipulated Decree of Divorce in
February of 2008 for the parties [sic] minor children.
***
4. [Father] made frequent and regular payments, some to [Clerk
of the Wyoming court], some as cash deposits, or in-kind directly
to [Mother].
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 6 of 26
5. Said payments of cash and deposits were not made through
the Clerk of Court, and should be credited to [Father].
6. The Clerk of Court currently calculates an arrearage in excess
of $37,303.19.
Id. at 50. The Wyoming court held a hearing in December 2012, which Father
attended with counsel. Mother “did not appear and, after proper service, was
defaulted.” Id. at 71. Mother filed an objection to the default order in January
2013, alleging she was unable to appear in person at the hearing because she
lacked the financial means to travel to Wyoming. In February 2013, the
Wyoming court issued a Default Order and Determination of Child Support
Arrears, finding that “for the reasons given in that certain Decision Letter dated
February 5, 2013, . . . the child support arrears in this case are $0, through
February 28, 2013.” Id. at 201. The Decision Letter states,
The court has considered the Objection to Default Order and
Determination of Child Support Arrears [Mother] recently filed
. . . . The court cannot grant the relief she has requested.
Following a thorough inquiry of the other jurisdictions
potentially involved in this matter, the court has concluded that it
does have jurisdiction over the child support arrears
determination. Further, the court conducted a hearing on
December 19, 2012 at which [Mother] had the opportunity to
attend. The court understands it was financially not possible for
[Mother] to travel to Wyoming but she could have appeared by
telephone. The court is aware that [Mother] did, in fact,
telephone with respect to that hearing, albeit after the hearing had
concluded and too late for her to participate.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 7 of 26
Beyond that belated telephone call, however, [Mother] did
nothing with respect to this case. She did not file an answer or
provide any information that could assist the court in its
determination. Therefore, the court must enter its order based
only upon the evidence provided by [Father]. The court finds
that he has made financial contributions toward the maintenance
of the parties’ children by making payments to various people
....
Given that many of the transfers of funds and payments were
directed to individuals other than [Mother] (those payees being
the children’s grandparents who were providing homes for the
children), it would be inequitable to permit any such payments to
inure to the detriment of [Mother] by characterizing them as
overpayments made by [Father]. Therefore, the court will
determine only that the current child support arrears have been
reduced to $0 through February 28, 2013. . . . The parties are
reminded that there is a current child support order, that being
$777 per month, and that obligation is not modified in any way
by the court’s decision here.
Id. at 72-73.
[9] On February 25, 2013, the Indiana court issued an order on an emergency
hearing which was primarily for the purpose of addressing Father’s parenting
time with R. and T. However, several other pending motions were also
addressed in the order. First, the trial court did not enter an interim order for
child support as Mother requested: “Because the Court did not have sufficient
time to hear evidence to modify any prior support orders, the current order shall
remain in effect. Father’s [sic] shall pay $777.00 a month as previously ordered
. . . .” Id. at 82. Second, with respect to tax deductions for the children, the
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 8 of 26
trial court ordered that “[p]ending further order from this Court, neither party
shall claim the child(ren) as dependents/exemptions on their federal, state or
local tax returns.” Id. On April 17, 2013, the Indiana court ordered Father to
begin making his child support payments through the Clerk of Perry County,
Indiana. At an emergency hearing on August 27, 2013, the Indiana court
ordered that Father have custody of R. and T. The court declined to issue any
orders as to child support and took that matter under advisement.
[10] On August 18, 2014, Mother filed in the Indiana court an Indiana Trial Rule
60(B) Motion, seeking relief from the Default Order and Determination of Child
Support Arrears issued by the Wyoming court in 2013. Mother alleged
the Wyoming court “did not have subject matter or personal jurisdiction over
the parties at the time the Decision Letter was issued and the Default Order and
Determination of Child Support Arrears was entered,” and the Wyoming order
“should be set aside for one or more of the reasons specified in Indiana Trial
Rule 60(B).” Id. at 192. On the same date, Mother filed in the Indiana court a
Motion to Determine Child Support Arrearage, citing the child support and
arrearage provisions from the Decree, alleging Father had failed and/or refused
to comply with the requirements imposed by that paragraph, and requesting the
Indiana court determine Father’s arrearage and reduce it to judgment in
Mother’s favor.
[11] On December 22, 2014, the Indiana court issued an order on various pending
matters. After recounting the proceedings as described above, the trial court
entered the following conclusions of law:
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 9 of 26
1. The Stipulated Decree of Divorce in Wyoming on February 6,
2008, stated “Regardless of the parties’ agreement, modification
of child support is not effective unless it is approved by a written
order of the Court.[”]
2. Although case law may allow the Court to enter a
modification of the support order based on particular
circumstances, this Court will not do so because the parties
specifically agreed to the provision contained in Paragraph 1.
3. Retroactive modification of support as requested by [Father],
based upon the exceptions provided by case law, shall not be
granted because those exceptions are discretionary with the
Court, and the Court has stated it will follow the dictates of the
Stipulated Divorce Decree which specifically prohibits that
exception. There was no written Court order changing support
until the Wisconsin Court properly addressed that issue regarding
[N.] by its order of August 13, 2012.
4. Any argument that Wyoming continues to have jurisdiction
over support issues is not founded on the facts. [Father’s]
petition to modify in Wyoming, filed July 21, 2011, requested
“modification of visitation and support as to the parties’ [minor]
children.”
5. On November 28, 2011, when the Wyoming Court ruled that
“jurisdiction in this matter is transferred to the State of
Wisconsin” it transferred all issues, including custody, parenting
time, and support. There is no reasonable argument that could be
made that Wyoming transferred all issues except support. The
support order in effect when jurisdiction was transferred to
Wisconsin was that [Father] was to pay $777.00 per month to
[Mother].
6. The Wyoming decree of dissolution was properly registered in
the Perry County [Indiana] Circuit Court on February 20, 2012.
7. On May 21, 2012, the parties agreed that Wisconsin would
have jurisdiction over [N.], who was at that time living with
[Father], and that Indiana would have jurisdiction over [R.] and
[T.] who were living with [Mother] in Indiana.
8. The enforceable support order at this time was still that
[Father] owed [Mother] $777.00 per month.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 10 of 26
9. On June 14, [2012], [Father] requested the Wyoming Court to
determine child support arrearage in Wyoming. [Mother] was
defaulted and the Wyoming Court forgave [Father] of $37,303.19
in support arrearage. The Court grants [Mother’s] Indiana Trial
Rule 60(B) motion filed August 18, 2014.
10. The Wyoming Court relinquished its jurisdiction on
November 28, 2011 when it transferred jurisdiction to Wisconsin.
The Wyoming order forgiving [Father] of any support arrearage
is null and void.
11. However, since the divorce decree had been properly
registered in Indiana, its terms, in particular the support order
that [Father] pay [Mother] $777.00 per month was still in effect.
12. The first change in the child support order of the divorce
decree occurred on August 13, 2012 when the Wisconsin Court
ordered that [N.] was in the legal custody of [Father], and that
there would be “no child support for the mother at this time.”
13. Effective August 13, 2012, [Father’s] obligation to pay child
support to [Mother] was reduced by one-third. The Wisconsin
Court order satisfies the original divorce decree from Wyoming
that no change in the support order would be allowed without a
court order.
14. [Father’s] obligation to pay child support in the sum of
$777.00 per month continued until August 13, 2012, when it was
reduced by the Wisconsin Court order to two-thirds of $777.00
($518.00).
15. There is no current obligation for [Mother] to pay support for
[N.] nor will there be unless Wisconsin addresses this issue.
16. This Court gave [Father] custody of [R.] and [T.] on August
27, 2013. This Court considered that to be a sufficient court
order to terminate [Father’s] obligation to pay support to
[Mother] after that date.
17. [Father] had no support obligation to [Mother] since August
27, 2013.
18. Since all three children reside in Wisconsin, the Wisconsin
Court should decide any child support order against [Mother].
19. The Court will hold an evidentiary hearing to determine the
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 11 of 26
amount of support arrearage [Father] owes based upon the
following findings:
(a) The Wyoming Court’s forgiveness of arrearage owed
by [Father] is declared null and void.
(b) [Father’s] obligation to pay $777.00 per month
continued until August 13, 2012, when the Wisconsin
Court gave [Father] custody of [N.] and ordered no
support for [N.] at that time.
(c) After August 13, 2012, [Father] owed [Mother] $518.00
per month until this Court gave [Father] custody of [R.]
and [T.] on August 27, 2013.
(d) Since August 27, 2013, [Father] has owed no support.
(e) Currently [Mother] owes no support.
(f) The evidentiary hearing will be to determine the
amount of support [Father] has paid from the beginning
which will determine the current amount of support
arrearage.
Id. at 25-28. Father now appeals.1
1
Although the trial court’s order leaves the amount of Father’s arrearage to be determined, this is nonetheless
a final appealable order. See Ind. Appellate Rule 2(H)(3) (“A judgment is a final judgment if . . . it is deemed
final under Trial Rule 60(C) . . . .”); Ind. Trial Rule 60(C) (“A ruling or order of the court denying or granting
relief, in whole or in part, by motion under subdivision (B) of this rule shall be deemed a final judgment, and
an appeal may be taken therefrom as in the case of a judgment.”).
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 12 of 26
Discussion and Decision
I. Child Support
A. Standard of Review
[12] Mother filed a Trial Rule 60(B) motion for relief from the judgment of the
Wyoming court determining Father’s child support arrearage. Trial Rule 60(B)
allows for relief from a judgment or order if, among other reasons, the judgment
is void. Ind. Trial Rule 60(B)(6). “A void judgment is a nullity, and typically
occurs where the court lacks subject matter or personal jurisdiction.” Fry v. Fry,
8 N.E.3d 209, 214 (Ind. Ct. App. 2014) (citation and alteration omitted).
Generally, we review a trial court’s ruling on a Trial Rule 60(B) motion for an
abuse of discretion. D.L.D. v. L.D., 911 N.E.2d 675, 678 (Ind. Ct. App. 2009),
trans. denied. However, when the motion alleges the judgment is void,
“discretion on the part of the trial court is not employed because either the
judgment is void or it is valid.” Id.
[13] Because the trial court’s order granting Mother’s Trial Rule 60(B) motion had
the effect of declaring the judgment of another state null and void, we must
consider the Full Faith and Credit Clause of the United States Constitution,
which mandates that “Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State.” U.S.
Const. art. IV, § 1. Full faith and credit means the judgment of a state court
should have the same validity and effect in every state of the United States as it
had in the state where it was made. Gardner v. Pierce, 838 N.E.2d 546, 550 (Ind.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 13 of 26
Ct. App. 2005). Indiana has codified the requirements of the Full Faith and
Credit Clause: “Records and judicial proceedings . . . shall have full faith and
credit given to them in any court in Indiana as by law or usage they have in the
courts in which they originated.” Ind. Code § 34-39-4-3(b). “The judgment of a
sister state, regular and complete upon its face, is prima facie valid.” Tom-Wat,
Inc. v. Fink, 741 N.E.2d 343, 348 (Ind. 2001) (citation omitted). A foreign
judgment is open to collateral attack for want of jurisdiction, however. Gardner,
838 N.E.2d at 550. An Indiana court may inquire into the jurisdictional basis
for a foreign judgment, and if the first court did not have subject matter or
personal jurisdiction, full faith and credit need not be given to the judgment. Id.
The scope of review is limited and “does not entail de novo review of the
jurisdictional issue” by the Indiana court. N. Ind. Commuter Transp. Dist. v.
Chicago S. Shore & S. Bend R.R., 685 N.E.2d 680, 685 (Ind. 1997). “[I]f
jurisdiction was ‘fully considered’ and ‘finally determined’ in the first state,” full
faith and credit must be given “even where the first court’s conclusion as to
jurisdiction was erroneous as a matter of law.” Id. at 686.
B. UIFSA
[14] This case involves a child support order and multiple jurisdictions. The
Uniform Interstate Family Support Act (“UIFSA”) is a uniform law, adopted
by all United States jurisdictions, supplying procedural and jurisdictional rules
for establishing, enforcing, and modifying child support orders nationwide.
Hamilton v. Hamilton, 914 N.E.2d 747, 751 (Ind. 2009). Together with the Full
Faith and Credit for Child Support Orders Act (“FFCCSOA”), 28 U.S.C. §
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 14 of 26
1738B, UIFSA provides a mechanism for cooperation between state courts to
ensure that in every case only one state exercises jurisdiction over making and
modifying a child support order at any given time.2 See Hamilton, 914 N.E.2d at
751; Harris v. Harris, 922 N.E.2d 626, 637 (Ind. Ct. App. 2010). UIFSA
provides a procedure for registering a child support order from one state (the
“issuing state”) in another state (the “responding state”). UIFSA § 602. Once
registered, the child support order may be enforced by the responding state but
may not be modified by the responding state unless all of UIFSA’s
requirements are met. UIFSA §§ 603, 611, 613. Indiana’s version of the UIFSA
is found at Indiana Code chapter 31-18.5-1. See also Wis. Stat. ch. 769; Wyo.
Stat. Ann. § 20-4 et seq.
[15] FFCCSOA provides that a state which first issues a child support order retains
continuing, exclusive jurisdiction over the judgment and all other states shall
enforce the order according to its terms under most circumstances. 28 U.S.C. §
1738B(a)(1), (d). “‘[C]hild support’ means a payment of money, continuing
support, or arrearages or the provision of a benefit . . . for the support of a
child.” 28 U.S.C. § 1738B(b)(4); accord Ind. Code § 31-18.5-1-2(28) (defining
“support order” to mean a judgment, decree, or order “which provides for
monetary support, health care, arrearages, retroactive support, or
reimbursement . . . [and] may include related costs and fees, interest, income
2
The existence of a federal statute and the uniform law covering the same subject “is apparently an accident
of history,” but they are intended “to be viewed as complementary and duplicative, not contradictory.”
Hamilton, 914 N.E.2d at 751.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 15 of 26
withholding, automatic adjustment, reasonable attorney’s fees, and other
relief”). UIFSA also hinges on the concept of “continuing, exclusive
jurisdiction” and the “subtle distinction” between continuing, exclusive
jurisdiction to modify a child support order and the continuing jurisdiction to
enforce an order. UIFSA § 206 cmt. UIFSA limits modification powers to the
one tribunal with continuing, exclusive jurisdiction, but acknowledges
continuing jurisdiction to enforce an order may exist in multiple tribunals.
[16] Both enforcement and modification of a child support order outside of the
issuing state begin with registering the order in the responding state. UIFSA §
602 (procedure to register an order for enforcement); § 609 (registration for
modification uses same procedure as for enforcement). With respect to
enforcement, “[a] keystone of UIFSA is that the power to enforce the order of
the issuing tribunal is not ‘exclusive’ with that tribunal. Rather, on request one
or more responding tribunals may also exercise authority to enforce the order of
the issuing tribunal.” UIFSA § 206 cmt. “A basic principle of UIFSA is that
throughout the process the controlling order remains the order of the tribunal of
the issuing state . . . until a valid modification. The responding tribunal only
assists in the enforcement of that order.” UIFSA § 604 cmt. The law of the
responding state controls with regard to enforcement procedures, but the law of
the issuing state governs the nature, extent, amount, and duration of current
payments; the computation and payment of arrearages and interest; and the
existence and satisfaction of other obligations under the child support order.
UIFSA § 604; accord Ind. Code § 31-18.5-6-4. “Thus, the calculation of whether
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 16 of 26
the obligor has fully complied with the payment of current support, arrears, and
interest on arrears is also the duty of the issuing tribunal. . . . [T]he law of the
issuing state . . . governs whether a payment made for the benefit of a child . . .
should be credited against the obligor’s child support obligation.” UIFSA § 604
cmt.
[17] UIFSA’s “most crucial provision” concerns the power to modify:
As long as one of the individual parties or the child continues to
reside in the issuing state, and as long as the parties do not agree
to the contrary, the issuing tribunal has continuing, exclusive
jurisdiction over its child-support order—which in practical terms
means that it may modify its order.
UIFSA § 205 cmt.; accord Ind. Code § 31-18.5-2-5.3
3
Indiana Code section 31-18.5-2-5 states:
(a) An Indiana tribunal that has issued a child support order consistent with Indiana law has and
shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is
the controlling order and:
(1) at the time of the filing of a request for modification Indiana is the residence of:
(A) the obligor;
(B) the individual obligee; or
(C) the child for whose benefit the support order is issued; or
(2) even if Indiana is not the residence of:
(A) the obligor;
(B) the individual obligee; or
(C) the child for whose benefit the support order is issued;
the parties consent in a record or in open court that an Indiana tribunal may continue to
exercise jurisdiction to modify its order.
(b) An Indiana tribunal that has issued a child support order consistent with Indiana law may
not exercise continuing, exclusive jurisdiction to modify the order if:
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 17 of 26
The other side of the coin follows logically[:] . . . if all the relevant
persons—the obligor, the individual obligee, and the child—
have permanently left the issuing state, absent an agreement the
issuing tribunal no longer has an appropriate nexus with the
parties or child to justify the exercise of jurisdiction to
modify its child-support order. . . . Note, however, that the original
order of the issuing tribunal remains valid and enforceable. That order
is in effect not only in the issuing state, but also in those states in
which the order has been registered. . . . In sum, the original
order remains in effect until it is properly modified in accordance
with the narrow terms of [UIFSA provisions for modification].
UIFSA § 205 cmt. (emphasis added). “[T]he time to measure whether the
issuing tribunal has continuing, exclusive jurisdiction to modify its order, or
whether the parties and the child have left the state, is explicitly stated to be at
the time of filing a proceeding to modify the child-support order.” Id.
Although section 205 identifies how continuing, exclusive jurisdiction is
retained or lost, that section does not confer jurisdiction on another tribunal.
“Modification requires that a tribunal have personal jurisdiction over the parties
and meet other criteria as provided [by UIFSA].” Id. In Indiana, the criteria for
modifying a child support order originating in another state are found at
Indiana Code sections 31-18.5-6-11 and 31-18.5-6-13. “Modification” is not
(1) all of the parties who are individuals file consent in a record with the Indiana tribunal that
a tribunal of another state that has jurisdiction over at least one (1) of the parties who is an
individual or that is located in the state of residence of the child may modify the order and
assume continuing, exclusive jurisdiction; or
(2) its order is not the controlling order.
See also Wyo. Stat. Ann. § 20-4-146.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 18 of 26
defined by UIFSA, but it is defined by FFCCSOA to mean “a change in a child
support order that affects the amount, scope, or duration of the order and
modifies, replaces, supersedes, or otherwise is made subsequent to the child
support order.” 28 U.S.C. § 1738B(b)(8).
C. Application of UIFSA
[18] The trial court granted Mother’s Trial Rule 60(B) motion for relief from the
Wyoming determination of Father’s child support arrearage upon finding that
the Wyoming court “relinquished its jurisdiction on November 28, 2011 when
it transferred jurisdiction to Wisconsin” and that “[a]ny argument that
Wyoming continues to have jurisdiction over support issues is not founded on
the facts.” Appellant’s App. at 26-27. The trial court’s order misunderstands
the procedural history of this case and misinterprets UIFSA.
[19] The proceedings which culminated in the November 28, 2011 order from the
Wyoming court are irrelevant to the question that was before the trial court and
is now before this court with respect to child support. Father’s petitions to
modify, filed in Wyoming in July 2011 and in Wisconsin in September 2011,4
concern only the custody of the children. The petition is captioned, “Petition
for Modification of Child Custody & Visitation.” As the trial court noted in its
order, the opening paragraph of Father’s petition to modify does say he
4
The two petitions are identical, but for the Wyoming petition being submitted by counsel and the
Wisconsin petition being submitted pro se. Appellant’s App. at 150-51 (Wyoming petition), 182 (Wisconsin
petition).
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 19 of 26
“petitions the Court for a modification of visitation and support.” Id. at 150.
However, the substance of the petition concerns primarily custody and
collaterally, visitation. Father asserts circumstances have materially changed
making it necessary that the provisions of the Decree “for the care, custody, and
control of the minor children” be modified and alleges several facts regarding
past and current visitation and the children’s living arrangements that
demonstrate such changed circumstances. Id. at 151. He requests as relief that
the court “Modify Custody to award Primary Physical Custody to [Father] [and]
Determine [Mother’s] visitation rights as in the best interests of the
children.” Id. Support is not mentioned either explicitly or implicitly outside of
opening paragraph. Mother’s response to Father’s Wyoming petition
exclusively addresses the provisions and application of UCCJA to the
Wyoming court’s jurisdiction. See id. at 167-81. The Wisconsin court’s order on
Father’s petition to modify finds, based on Wisconsin’s version of UCCJA,
that Wisconsin has jurisdiction and is the “proper forum to modify the parties’
previous Wyoming order regarding legal custody and physical placement of the
parties’ minor children.” Id. at 187 (emphasis added) (citing Wis. Stat. §
822.23(2)).
[20] This situation is similar to that presented in Tisdale v. Bolick, 978 N.E.2d 30
(Ind. Ct. App. 2012). Indiana granted a divorce to the parties and gave custody
of the children to the mother. The mother later moved to South Carolina with
the children and filed in Indiana a petition to transfer jurisdiction, citing
Indiana’s UCCJA provision regarding inconvenient forum (a concept which
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 20 of 26
does not exist in UIFSA), and referencing only custody and parenting time, not
child support. The Indiana court issued an order ceding jurisdiction of
parenting time and custody issues to South Carolina and making no reference to
child support issues. When the father later filed in Indiana a petition to
modify child support, the court summarily concluded it was without jurisdiction
to hear the petition. We reversed, noting that the UCCJA
specifically excludes from its definition of a “child custody determination” an
order relating to child support, see Ind. Code § 31-21-2-4(b), and allows a court
to decline to exercise its jurisdiction over a child custody determination “while
still retaining jurisdiction over the dissolution of marriage or other proceeding,”
Ind. Code § 31-21-5-8(d). Tisdale, 978 N.E.2d at 35. Therefore, the father was
correct “that matters of child support are governed by an entirely different
Act—the [UIFSA,]” and the Indiana court was directed to hold a hearing to
determine whether it retained the continuing, exclusive jurisdiction over child
support issues it obtained when it issued a decree containing a support order.
Id. at 35-36.
[21] Similar to Tisdale, the Wyoming court’s November 28, 2011, order ceded
jurisdiction to the Wisconsin court only of child custody matters pursuant to
UCCJEA and did not divest it of jurisdiction over child support issues. That is
a separate inquiry to be made under UIFSA.
[22] The three states involved in this dispute have all adopted UIFSA. In 2008, the
parties were divorced in Wyoming and orders were made by the Wyoming
court concerning the support of the parties’ three children as part of the Decree.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 21 of 26
Wyoming, as the issuing state, had continuing, exclusive jurisdiction to modify
its child support order unless and until it lost that jurisdiction. Wyo. Stat. Ann.
§ 20-4-146. The time for determining whether Wyoming had continuing,
exclusive jurisdiction to modify its order is at the time a proceeding to modify
the child support order was filed. In this case, Mother simultaneously
registered the Decree and petitioned for modification of child support in
Indiana in January 2012. Both parties and all the children had left Wyoming
by this time. Therefore, Wyoming no longer had continuing, exclusive
jurisdiction to modify child support. Wyo. Stat. Ann. § 20-4-146(b).
[23] Regardless of whether Wyoming had continuing, exclusive jurisdiction to
modify the child support order, however, it had continuing jurisdiction to enforce
the order. And pursuant to UIFSA section 604, the “computation and payment
of arrearages” is the duty of Wyoming as the issuing state and is governed by
Wyoming law. See Ind. Code § 31-18.5-6-4; Wyo. Stat. Ann. § 20-4-176.
Moreover, when a court in a sister state fully considers and finally determines
jurisdiction, even if the determination is erroneous, we must give the judgment
full faith and credit. See N. Ind. Commuter Transp. Dist., 685 N.E.2d at 686.
Here, the Wyoming court order states the court conducted “a thorough inquiry
of the other jurisdictions potentially involved in this matter [and] concluded
that it does have jurisdiction over the child support arrears determination.”
Appellant’s App. at 72. Indiana may not reconsider the Wyoming court’s
determination regarding jurisdiction. See N. Ind. Commuter Transp. Dist., 685
N.E.2d at 685.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 22 of 26
[24] As to the merits of the Wyoming decision, the trial court characterized the
order as “forgiving” Father’s arrearage which it apparently equates with
retroactively modifying it. Id. at 27-28. Although retroactive modification is
not allowed, see Wyo. Stat. Ann. § 20-2-311(d), there is a difference between
retroactive modification of a child support order and a credit toward a child
support obligation. The Wyoming court heard evidence of Father’s “financial
contributions toward the maintenance of the parties’ children by making
payments to various people” and determined Father’s “current child support
arrears have been reduced to $0.” Appellant’s App. at 72-73 (emphasis added).
The taking of evidence regarding payment and the finding that the payments
reduced the arrearage indicates the Wyoming court was not retroactively
modifying the arrearage, but was giving Father a credit toward his arrearage for
payments made outside the strict parameters of the Decree (which required
payment to the county clerk via income withholding order). The Wyoming
judgment regarding Father’s child support arrearage is regular and complete on
its face and is therefore prima facie valid. See Tom-Wat, Inc., 741 N.E.2d at 348.
Moreover, it is not for an Indiana court to decide if the Wyoming order is in
error. Mother’s recourse was through the appellate process in Wyoming, not
through a collateral attack in Indiana of a sister state’s order. The Wyoming
order, issued in February 2013, was final when it was unchallenged in that
state. See Wyo. R. App. P. 2.01(a) (“An appeal from a trial court to an
appellate court shall be taken by filing the notice of appeal . . . within 30 days
from entry of the appealable order . . . .”); see also Aldrich v. Aldrich, 378 U.S.
540, 543 (1964) (finding that although a Florida trial court had issued an
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 23 of 26
erroneous order regarding alimony, a West Virginia trial court was required to
give full faith and credit to the decree because the Florida court had personal
and subject matter jurisdiction over the issue and its decision had become final
after the time for appeal elapsed).
[25] The trial court’s grant of Trial Rule 60(B) relief to Mother was erroneously
premised on its belief Wyoming lacked jurisdiction over the child support order
and impermissibly modified arrearage retroactively. The trial court’s order
declaring the Wyoming order null and void is reversed.
II. Tax Exemptions for Dependents
[26] On February 25, 2013, the Indiana trial court ordered, in part, that neither party
was to take the tax exemption for the parties’ children pending further order of
the court. The issue has never been decided by the trial court and the
moratorium remains in effect. Father requests the trial court vacate its order
enjoining either party from claiming the children as dependents. Mother did
not respond to Father’s argument on this issue.5
[27] “The federal tax code automatically grants to a custodial parent the dependency
exemption for a child but permits an exception where the custodial parent
executes a written waiver of the exemption for a particular tax year.” Quinn v.
5
Accordingly, Father need only show prima facie error. See Khaja v. Khan, 902 N.E.2d 857, 868 (Ind. Ct.
App. 2009) (noting that an appellee’s failure to respond to an issue raised by the appellant is akin to failing to
file a brief as to that issue and we may reverse upon a showing of prima facie error on that issue).
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 24 of 26
Threlkel, 858 N.E.2d 665, 674 (Ind. Ct. App. 2006). A trial court may, in its
“equitable discretion,” order the custodial parent to sign a waiver of the
dependency exemption. Id.; see also Ind. Child Support Guideline 9 (“[T]he
court cannot award an exemption to a parent, but the court may order a parent
to release or sign over the exemption for one or more of the children to the
other parent . . . .”). Here, the trial court had been asked – by both parties – to
allocate the tax exemptions for 2012. Not only did the trial court not do so, but
it entered an order in January 2013 precluding either party from taking the
exemptions until further order of the court and then never determined who
should take the exemptions for 2012 or any subsequent year.6 Either party
could have and should have brought this outstanding issue to the trial court’s
attention, as three tax years have now passed since the trial court’s order and
presumably, the exemptions have gone unclaimed. Regardless, Father is
correct that the trial court’s order should be vacated so the tax exemptions for
2012 and subsequent years can be allocated.7
6
It appears the trial court initially anticipated addressing the issue at a hearing scheduled shortly after the
order was entered but that hearing was vacated. See Appellant’s App. at 86 (trial court order stating neither
party was to claim the exemption “[p]ending the January 30, 2013 hearing”), 87 (chronological case
summary entry vacating January 30, 2013, hearing due to a criminal trial). The issue again arose at a
February 25, 2013, hearing, following which the trial court entered an order again enjoining either party from
claiming the exemptions pending further order of the court. See id. at 82. That outstanding issue, among
others, was to be addressed at a telephonic attorney conference. See id. That is the last entry from the trial
court on the issue.
7
As Father points out, tax returns may be amended for up to three years, so the exemptions for past years are
not necessarily lost. See 26 U.S.C. § 6511(a).
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 25 of 26
Conclusion
[28] The trial court erred in finding the 2013 order of the Wyoming court enforcing
the child support order it issued in 2008 was null and void. Accordingly, the
trial court’s grant of Trial Rule 60(B) relief to Mother is reversed. In addition,
the trial court’s 2013 order precluding either party from taking tax exemptions
for the children until further order of the court must be vacated.
[29] Reversed and remanded.
Vaidik, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 62A04-1501-DR-33 | January 12, 2016 Page 26 of 26