Rebecca Brown v. Eric Brown (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 26 2020, 10:22 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Julie A. Camden
Camden & Meridew, P.C.
Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Marriage of: October 26, 2020
Rebecca Brown, Court of Appeals Case No.
20A-DC-1027
Appellant-Petitioner,
Appeal from the
v. Boone Superior Court
The Honorable
Eric Brown, Matthew C. Kincaid, Judge
Trial Court Cause No.
Appellee-Respondent.
06D01-1911-DC-1767
Kirsch, Judge.
[1] Rebecca Brown (“Mother”) appeals the trial court’s order that granted the
petition to transfer jurisdiction to Illinois filed by Eric Brown (“Father”) and
found that Indiana is an inconvenient forum and Illinois is the more
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appropriate forum to resolve all pending child custody and parenting time
issues. Mother raises the following restated issues for our review:
I. Whether the trial court erred in its judgment that Illinois is
the more appropriate forum because the evidence
presented did not support several of the trial court’s
findings; and
II. Whether the trial court erred when it found that pursuant
to Indiana Code section 31-18.5-2-2, the Uniform
Interstate Family Support Act, Illinois solely had
jurisdiction over child support.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father were married on October 21, 2017 in Illinois, and both
parties resided in Illinois until the end of 2019. Ex. Vol. 3 at 191. During the
course of the marriage, a child, L.B.B. (“Child”), was born on October 22,
2019. Id.; Appellant’s App. Vol. 2 at 11. Mother and Father separated on
September 14, 2019. Appellant’s App. Vol. 2 at 11. After the parties separated
and before Child was born, on September 26, 2019, Mother obtained a driver’s
license in Indiana and changed her address to Zionsville, Indiana. Id. at 22-27.
However, Mother never told Father that she planned to move to Indiana, and
Father thought Mother was still living in Illinois up until November 2019. Tr.
Vol. 2 at 25-26, 52, 53; Ex. Vol. 3 at 197.
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[4] On October 21, 2019, one day before Child was born, Father sent flowers for
their anniversary to Mother at her workplace in Illinois, and although she
acknowledged that the flowers were delivered and sent Father a picture of them
sitting on her desk, she did not inform Father that she was actually in Indiana
on that date and that she received the picture of the flowers from her boss in
Illinois. Tr. Vol. 2 at 57; Ex. Vol. 3 at 199. Child was born in Indiana on
October 2, 2019, but prior to the date of birth, Father was not aware that Child
would be born in Indiana. Ex. Vol. 3 at 191; Appellant’s App. Vol. 2 at 11; Tr. Vol.
2 at 29. A few days prior to Child’s birth, Father asked Mother to tell him the
name of the hospital that Child would be born in, and Mother informed Father
that Child would be born at CDH, a hospital in Illinois, even though she knew
that was not true. Tr. Vol. 2 at 28, 55; Ex. Vol. 3 at 188-89.
[5] After Child was born, on approximately October 29, 2019, Mother and Child
came to Illinois and lived with Mother’s parents for several weeks. Tr. Vol. 2 at
22; Ex. Vol. 3 at 92-112. During this time, Father was able to visit with Child on
several occasions at the home of Mother’s parents. Tr. Vol. 2 at 23; Ex. Vol. 3 at
92-112. Father’s last visit with Child in Illinois was on November 17, 2019. Tr.
Vol. 2 at 23.
[6] On November 25, 2019, Mother filed a petition for custody, parenting time,
and child support in Indiana, in which she alleged that both she and Child were
residents of Indiana and that Father was a resident of Illinois. Appellant’s App.
Vol. 2 at 8-9. Mother also alleged that Indiana had jurisdiction to make an
initial custody determination and requested that she receive sole legal and
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physical custody of Child and that Father receive parenting time in accordance
with Indiana’s parenting time guidelines. Id. The trial court in Indiana set the
petition for hearing on December 20, 2019. Id. at 3.
[7] On December 11, 2019, Father filed a petition for dissolution of marriage in
Illinois and requested the trial court in Illinois to determine that it is in the best
interests of Child that “allocation of parental time be apportioned by and
amongst the parties on an equal basis and that the parties jointly share in the
decision making authority regarding the parental responsibilities” for Child and
that child support be determined according to Illinois law. Id. at 15-18. On
December 13, 2019, Father filed a Notice of Interstate Custody Dispute and a
motion to dismiss Mother’s petition with the Indiana trial court, in which he
asserted that the Indiana trial court did not have subject matter or personal
jurisdiction. Id. at 11-14.1 Father alleged that he and Mother were residents of
Illinois and that Indiana is not the home state of Child because Mother’s
primary residence was in Illinois, she had resided in Illinois throughout her
pregnancy, her employment was in Illinois, she returned to Illinois to reside for
several weeks after Child was born, and Mother was deceptive regarding her
whereabouts and intentions. Id. at 12. Father also asserts that the Indiana trial
court did not have personal and subject matter jurisdiction to make a child
1
In filing Father’s motions and objections to the jurisdiction of Indiana over custody and child support,
Father’s attorneys only filed a limited appearance. See Appellant’s App. Vol. 2 at 11, 30, 41.
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support determination pursuant to the Uniform Interstate Family Support Act.
Id. at 13.
[8] On December 17, 2019, Mother filed an objection to Father’s motion to
dismiss, in which she asserted that she was a resident of Indiana since
September 2019 and that Child was also a resident of Indiana because he was
born in Indiana and lived in Indiana his entire life except for a few trips to
Illinois to allow Father visitation. Id. at 20-21. Mother attached several
exhibits to her objection to show that she had been a resident of Indiana since
September 26, 2019, including a driver’s license, a change of address
acknowledgment from the post office, a letter from her credit card company, a
library card, and paystubs. Id. at 22-27.
[9] On December 17, 2019, Father filed a response to Mother’s objection, alleging
that Mother was not being forthright in her objection because her property, the
marital residence, is located in Illinois and her employer was an Illinois
company. Id. at 31. He further argues that, even if Mother resided in Indiana,
she had been deceptive to Father regarding where she was living. Id. at 32.
Father also asserted that Indiana did not have personal jurisdiction over him
and could not make a child support determination. Id. at 33.
[10] On December 20, 2019, the trial court held a hearing on Mother’s petition for
an initial custody determination and Father’s motion to dismiss. Id. at 40.
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Father did not personally appear2 but appeared by limited appearance by his
counsel.3 Id. After hearing argument regarding the motion to dismiss and
evidence on Mother’s petition for custody, the trial court denied Father’s
motion to dismiss and found it had authority to make an initial custody
determination. Id. The trial court ordered that Mother have primary custody
of Child and that Father have parenting time according to Indiana parenting
time guidelines; the trial court also took Mother’s request for child support
under advisement. Id.
[11] On January 18, 2020, Father filed a Petition to Transfer Jurisdiction to Illinois
Pursuant to Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), in which he alleged that Indiana is an inconvenient forum under
the circumstances and that Illinois is the more convenient and appropriate
forum to make child support and custody determinations. Id. at 41-45. Father
alleged that although Mother and Child were currently in Indiana, Mother had
fled to Indiana from Illinois without the knowledge or consent from Father and
intentionally misled Father to believe she was still in Illinois and would be
giving birth to the minor child in Illinois. Id. at 42. He also asserted that Child
and both Mother and Father have significant connections with Illinois in that
both parties resided in Illinois during the marriage, Mother owned real
2
Father did not appear on advice of his counsel because he did not want to risk waiving personal jurisdiction
on the child support issue, which he risked waiving if he appeared at the hearing. Tr. Vol. 2 at 4, 36.
3
Father’s counsel informed the trial court that her appearance at the hearing was a limited appearance and
that she was appearing only to contest jurisdiction and to argue the motion to dismiss. Tr. Vol. 2 at 2, 3, 4.
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property in Kane County, Illinois, Child was conceived in Illinois, Mother
received virtually all of her prenatal care in Illinois, and both parties are or were
employed on a full-time basis in Illinois. Id. at 43. Father further argued that
Illinois was the more convenient forum because: (1) the Indiana trial court
lacked personal and subject matter jurisdiction to make a child support
determination pursuant to the Uniform Interstate Family Support Act
(“UIFSA”) and did not have personal jurisdiction over Father; (2) the parties
owned property in and are residents of Illinois, which meant that Illinois had
personal and subject matter jurisdiction over child support; (3) neither party
could file a petition for dissolution in Indiana because neither party had been a
resident of Indiana for six months; and (4) Illinois was the more convenient and
appropriate forum to address the child-related issues to avoid two different
courts making decisions regarding Child. Id. at 43-44. On January 9, 2020,
Mother filed an objection to Father’s petition to transfer jurisdiction, claiming
that, pursuant to the UCCJEA, the only state with jurisdiction is Indiana as it is
Child’s home state and that Illinois would be an inconvenient forum because
“everything from [Child’s] life is in Indiana, including his pediatrician, hospital
records, the daycare places Mother contacted . . ., all of his belongings, his
surgeons . . .[,]” and that Mother would have to bring more than ten witnesses
to Illinois. Id. at 46-49.
[12] On January 24, 2020, the Indiana trial court had a telephonic conference with
the Illinois trial court and discussed that a request for an order of child support
was under advisement in Indiana and that Father also had a pending motion to
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transfer jurisdiction to Illinois, and Mother had asked for a final hearing on
custody. Id. at 51. The Illinois trial court stated that a hearing was set in
Illinois on provisional matters related to the dissolution, and the Indiana trial
court explained that it would be ruling on the child support issue under
advisement and setting the other pending motions for hearing. Id. Thereafter,
on January 27, 2020, the trial court in Indiana issued an order finding that “for
purposes of child support establishment governed by the [UIFSA] which
governs personal jurisdiction for . . . child support determinations [that] Indiana
lack[ed] personal jurisdiction over [Father]” to order him to pay child support
and denied Mother’s request for a weekly child support order. Id. at 52.
Mother filed a motion to reconsider or to correct error on the decision denying
to award child support or in the alternative to dismiss Father’s motion to
transfer jurisdiction. Id. at 53-56. Father filed a response and objection to this
motion. Id. at 57-60. Mother then filed a motion to either strike Father’s
pleadings or to find that Father had submitted to the jurisdiction of Indiana by
filing the pleadings. Id. at 61-63.
[13] On March 3, 2020, a hearing was held on Father’s motion to transfer
jurisdiction to Illinois pursuant to the UCCJEA. Tr. Vol. 2 at 19. At the
hearing, Father testified that he was seeking to transfer jurisdiction to Illinois
because it was inconvenient for him to travel to Indiana and that Mother would
already have to travel to Illinois to litigate issues of child support. Id. at 24, 34.
Father also testified that he had no reason to believe that the Illinois court could
not handle the issues of custody and that there was a hearing concerning child
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support set for March 5, 2020 in the Illinois court. Id. at 24-25. Father testified
that he believed that Mother filed her petition for custody in Indiana because of
the difference between the two states’ laws, and Mother testified that she was
aware on the date that the petition for custody was filed that Illinois had no
parenting time guidelines and could favor either party as opposed to Indiana
that has set parenting time guidelines. Id. at 30-31, 55, 74. Mother also testified
that all of her witnesses and Child’s activities, which included Child’s doctors,
swimming instructor, the library, the church they attended, breast feeding
support group, mother’s group, and daycare, were located in Indiana and these
witnesses would have to travel to Illinois at Mother’s expense. Id. at 60, 63-64.
[14] On April 28, 2020, the trial court issued an order that concluded that Indiana is
an inconvenient forum and that Illinois is the more appropriate forum to
resolve all of the pending child custody and parenting time issues and ordered
that all proceedings in Indiana were to be stayed and the jurisdiction of all
issues regarding child custody and parenting time of Child were to be
transferred to the Circuit Court of Kane County, Illinois. Appellant’s App. Vol. 2
at 64-70. On April 28, 2020, the trial court also issued an order denying as
moot Mother’s motion to strike Father’s pleadings or to find Father had
submitted to the jurisdiction of Indiana. Id. at 71. On May 1, 2020, Mother
filed a motion to correct error or reconsider, arguing that the evidence did not
support the trial court’s findings. Id. at 72-76. Mother now appeals.
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Discussion and Decision
[15] We begin by noting that Father has not filed an appellee’s brief. When an
appellee fails to file a brief, we need not undertake the burden of developing an
argument on appellee’s behalf. C.V. v. C.R., 64 N.E.3d 850, 852 (Ind. Ct. App.
2016). Instead, applying a less stringent standard of review, we may reverse the
trial court’ s judgment if the appellant can prove a case of prima facie error. Id.
“Prima facie error in this context is defined as, ‘at first sight, on first appearance,
or on the face of it.’” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.
2006) (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)).
[16] Mother argues that the trial court erred in its order transferring jurisdiction to
Illinois as the more appropriate forum because the evidence did not support the
trial court’s findings. Where, as here, the trial court issued special findings and
conclusions thereon pursuant to Indiana Trial Rule 52, our review of such
findings and conclusions is two-tiered. In re Paternity of D.T., 6 N.E.3d 471, 474
(Ind. Ct. App. 2014). First, we consider whether the evidence supports the
findings, and second, whether the findings support the judgment. Coulibaly v.
Stevance, 85 N.E.3d 911, 915 (Ind. Ct. App. 2018). The trial court’s findings
and conclusions will be set aside only if they are clearly erroneous -- that is,
where a review of the record leaves us with a firm conviction that a mistake has
been made. Id. at 915-16. In conducting our review, we will neither reweigh
the evidence nor judge the credibility of witnesses. Id. at 916. Instead, we will
consider only the evidence favorable to the trial court’s judgment. Id.
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I. Jurisdiction for Custody
[17] Mother contends that the trial court erred when it found that Indiana is an
inconvenient forum to determine custody and parenting time issues and that
Illinois is a more appropriate forum to determine those issues. “‘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.’” In re Paternity of
J.G.L., 107 N.E.3d 1086, 1090 (Ind. Ct. App. 2018) (quoting In re Custody of
A.N.W., 798 N.E.2d 556, 561 (Ind. Ct. App. 2003), trans. denied). As long as
one parent continues to reside in Indiana, a “significant connection” to Indiana
remains, but a trial court has discretion to defer to another court that is a more
convenient forum to litigate the issues. Id.
[18] 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. Barwick v. Ceruti, 31 N.E.3d
1008, 1014 (Ind. Ct. App. 2015). 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 best interest that another state assume jurisdiction. Id.
Indiana Code section 31-21-5-8 provides:
(a) An Indiana court that has jurisdiction under this article to
make a child custody determination may decline to exercise its
jurisdiction at any time if the Indiana court determines that:
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(1) the Indiana court is an inconvenient forum under the
circumstances; and
(2) a court of another state is a more appropriate forum.
The issue of inconvenient forum may be raised on motion of a
party, the court’s own motion, or request of another court.
(b) Before determining whether an Indiana court is an
inconvenient forum, the Indiana court shall consider whether it is
appropriate for a court of another state to exercise jurisdiction.
For this purpose, the Indiana court shall allow the parties to
submit information and shall consider the relevant factors,
including the following:
(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.
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(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.
Ind. Code § 31-21-5-8(a), (b). We have held that this “list is not exclusive, and
that courts may consider all relevant factors, including factors not listed in
Indiana Code section 31-21-5-8(b).” Tamasy v. Kovacs, 929 N.E.2d 820, 827
(Ind. Ct. App. 2010).
[19] Mother argues that the trial court erred in determining that Illinois is the more
appropriate forum to decide the issues of custody and parenting time because
the evidence presented at the hearing did not support the trial court’s findings.
She first contends that the trial court erred in finding that “just prior to filing in
Indiana, Mother resided in Illinois” and “text messages between the parties
were submitted evidencing the Mother had been living with her parents who
reside in Illinois, for some time after [Child] was born.” Appellant’s App. Vol. 2
at 66-67. Mother asserts that the evidence presented did not support these
findings.
[20] The evidence most favorable to the trial court’s judgment showed that,
although Mother submitted evidence that she moved to Indiana in September
2019 and Child was born in Indiana on October 22, 2019, shortly after Child
was born, on October 29, 2019, Mother moved back to Illinois and was living
with her parents for several weeks. Tr. Vol. 2 at 22; Ex. Vol. 3 at 92-114. Mother
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sent text messages to Father in which she stated that she was living with her
parents in Illinois because Child was a newborn and she appreciated the
support and help from them. Ex. Vol. 3 at 95. During the weeks between
October 29 and November 17, 2019, Father was able to visit with Child
frequently and Mother’s text messages, which created a reasonable inference
that she was residing in Illinois at her parents’ home for this approximately
three-week period, especially considering that the evidence showed that it was
an approximately six-hour round trip to get between her parents’ home in
Illinois and the house where she was living in Indiana. Id. at 92-114; Tr. Vol. 2
at 23, 58. Her text messages also made references to her travel back and forth
between the states, and they showed that she arrived in Illinois on October 29,
2019 and stayed in Illinois until November 17, 2019 with a two-day trip back to
Indiana November 8-10. Ex. Vol. 3 at 92-114; Tr. Vol. 2 at 23. Much of
Mother’s argument focuses on the time prior to the birth of Child and Father’s
knowledge that she was in Indiana at that time; however, the trial court’s
findings addressed the span of time after Child was born and Mother filed her
petition, which was about a month. Looking at the evidence most favorable to
the trial court’s judgment, we conclude that the evidence presented supported
these findings.
[21] Mother next asserts that the evidence did not support the following findings by
the trial court: (1) “few records exist in Indiana that would impede or otherwise
delay decisions out of the Illinois Court”; (2) the trial court is “unaware of any
reason to believe that the Illinois Court could not handle custody matters
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expeditiously”; (3) “neither [c]ourt has more familiarity with the facts and
issues pending than the other”; and (4) “the parties will be required to litigate in
two jurisdictions, and subsequently bear an undue financial burden for two sets
of attorneys.” Appellant’s App. Vol. 2 at 68. We first note that, in arguing that
the above findings are not supported by the evidence, Mother only sets forth
portions of the challenged findings. For example, as to (1), the trial court’s
complete finding stated: “The minor Child is a newborn and, given the young
age of the child, few records exist in Indiana that would impede or otherwise
delay decisions out of the Illinois Court.” Id. As to (2), the complete finding
stated: “This Court is unaware of any reason to believe that the Illinois Court
could not handle custody matters expeditiously. Father had requested the
Illinois Court to resolve Child custody and parenting time issues through his
Petition for Dissolution of Marriage.” Id. The full finding that contains (3)
states: “Both the Indiana case and the Illinois case were filed within a month of
the other and, given the young age of the child, neither Court has more
familiarity with the facts and issues pending than the other.” Id. Finally, as to
(4), the full finding stated: “Since this Court does not have the jurisdiction over
the parties dissolution of marriage, nor the issue of child support, if the issue of
custody is not transferred to Illinois, the parties will be required to litigate in
two jurisdictions, and subsequently bear an undue financial burden for two sets
of attorneys.” Id. Reviewing the finding in their full context aids in
determining if the evidence supported them.
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[22] The evidence most favorable to the trial court’s judgement showed that, at the
time that Mother’s petition was filed and throughout the proceedings that
occurred in Indiana, Child was an infant and only a few months old, and,
therefore, few records existed in Indiana that would delay a decision in the
Illinois court. Mother maintains that voluminous amounts of evidence had
been admitted in the Indiana court, including close to 500 pages of medical
records; however, close to 300 pages of those pertained to Mother, and
although close to 200 pages pertained to Child, there was no showing as to how
that evidence would be relevant to determining custody or how it would be
onerous to have the same evidence admitted in the Illinois court. The evidence
also showed that, prior to the March 3, 2020 hearing on Father’s petition to
transfer jurisdiction, the Indiana court had only held one hearing, which was a
brief hearing to establish an initial custody determination. Tr. Vol. 2 at 2-18.
Mother also asserts that all of her witnesses, including Child’s doctors,
swimming instructor, the library they frequented, the church they attended,
breast feeding support group, mother’s group, and daycare, are in Indiana and
that it would be a hardship for more than ten witnesses to travel to Illinois for
custody proceedings and she would be deprived of rebuttal witnesses if she did
not bring them. However, there was no evidence presented that these ten
witnesses would be necessary to make a custody determination and would need
to travel to Illinois for any custody proceedings.
[23] Evidence presented also established that Father filed a petition for dissolution in
Illinois on December 11, 2019 within sixteen days after Mother filed her
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original petition, and that Illinois is the only jurisdiction where the dissolution
could be filed because neither Mother nor Father had resided in Indiana for six
months at the date of filing.4 Appellant’s App. Vol. 2 at 15-18. Father testified at
the March 3, 2020 hearing that there was a hearing set for March 5, 2020 in the
Illinois court regarding child support and that he had no problems getting
prompt hearings set in Illinois and did not foresee a problem with getting
additional hearings expeditiously set in the future for custody proceedings in
Illinois. Tr. Vol. 2 at 24-25. Additionally, in its order on January 27, 2020, the
trial court found that Indiana lacked personal jurisdiction over Father under the
UIFSA to order him to pay child support and denied Mother’s request for a
weekly child support order. Appellant’s App. Vol. 2 at 52. Therefore, Illinois had
jurisdiction over both the dissolution proceedings and any determination of
child support, and if Indiana did not transfer jurisdiction of the custody and
parenting time determinations, the parties would be forced to litigate in two
different jurisdictions and incur the costs of doing so. We conclude that
evidence was presented to support the challenged findings.
[24] Mother next contends that the evidence did not support the trial court’s finding
that “Mother knew Indiana’s parenting time guidelines were more favorable to
her than the child custody laws in Illinois.” Id. at 70. Again, Mother only sets
4
See Ind. Code § 31-15-2-6(a) (requiring that, in order to filed for dissolution in Indiana, one of the parties to
a dissolution must have been a resident of Indiana for six months immediately preceding the filing of the
petition).
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out a portion of the trial court’s finding. The complete finding stated: “Mother
also testified she knew Indiana’s parenting time guidelines were more favorable
to her than the child custody laws in Illinois and that she became aware of this
fact prior to her filing in Indiana.” Id.
[25] At the hearing, Mother testified that it was her understanding that, because
Illinois did not have parenting time guidelines, there could be a more favorable
outcome for either party and that it could be “a free for all,” but that in Indiana
there are parenting time guidelines. Tr. Vol. 2 at 55-56, 74. Mother also
testified that she was aware of these differences on November 25, 2019, the date
that she filed her petition for custody and parenting in Indiana. Id. at 74. From
this evidence, the trial court could make a reasonable inference that, due to
Indiana having parenting time guidelines unlike Illinois, that Mother was aware
that Indiana’s parenting time guidelines were more favorable to her than the
child custody laws in Illinois, which she referred to as a “free for all” and that
she became aware of this fact prior to her filing in Indiana. Id. Evidence was
presented to support this finding.
[26] Finally, Mother argues that the trial court erred in finding that “Mother’s
actions leading up to her November 25, 2019 filing in Indiana were intended to
deceive Father and but for Mother’s actions, there would be no question as to
whether Illinois had jurisdiction over the child custody issues.” Appellant’s App.
Vol. 2 at 69. Mother initially asserts that the trial court could not make this
finding due to claim preclusion under the doctrine of res judicata because on
December 20, 2019, the trial court found that it had jurisdiction to make an
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initial custody determination and denied Father’s motion to dismiss but did not
indicate any finding of deception by Mother, which had been argued by Father
in his motions prior to the hearing on December 20, 2019. Mother contends
that by determining the issue of initial custody and denying Father’s motion to
dismiss, the trial court made a decision not to dismiss due to deception, and
therefore, the issue of whether Mother acted with deception was res judicata
and could not be relitigated.
[27] Claim preclusion, applies where a final judgment on the merits has been
rendered and acts as a complete bar to a subsequent action on the same issue or
claim between those parties and their privies. Freels v. Koches, 94 N.E.3d 339,
342 (Ind. Ct. App. 2018). When claim preclusion applies, all matters that were
or might have been litigated are deemed conclusively decided by the judgment
in the prior action. Id. Here, in denying Father’s motion to dismiss and in
making the initial custody determination, the trial court stated it was basing its
finding on the fact that Indiana was the home state of Child on the date of the
commencement of the proceedings. Tr. Vol. 2 at 7. Although Father had
argued deception by Mother in his pleadings, the trial court made no finding
regarding deception and instead found that it had jurisdiction to make an initial
custody determination because Indiana was the home state of Child on the date
the proceedings were commenced. Mother initiated the proceedings by filing
her petition on November 25, 2019, and although Father argued deception by
Mother on a prior date, from at least the date of the commencement of
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proceedings, there was no further claim of deception. We do not find that the
trial court’s finding of deception by Mother was precluded by claim preclusion.
[28] Mother further argues that the evidence did not support this finding. The
evidence most favorable to the trial court’s judgment showed that Mother never
told Father that she planned to move to Indiana, and Father thought Mother
was still living in Illinois up until November 2019. Id. at 25-26, 52, 53; Ex. Vol.
3 at 197. On October 21, 2019, one day before Child was born, Father sent
flowers for their anniversary to Mother at her workplace in Illinois, and
although she acknowledged that the flowers were delivered and sent Father a
picture of them sitting on her desk, she did not inform Father that she was
actually in Indiana on that date and that she received the picture of the flowers
from her boss in Illinois. Tr. Vol. 2 at 57; Ex. Vol. 3 at 199. Child was born in
Indiana on October 2, 2019, but prior to the date of birth, Father was not aware
that Child would be born in Indiana. Ex. Vol. 3 at 191; Appellant’s App. Vol. 2 at
11; Tr. Vol. 2 at 29. A few days prior to Child’s birth, Father asked Mother to
tell him the name of the hospital that Child would be born in, and Mother
informed Father that Child would be born at CDH, a hospital in Illinois, even
though she knew that was not true. Tr. Vol. 2 at 28, 55; Ex. Vol. 3 at 188-89.
After Child was born, on approximately October 29, 2019, Mother and Child
came to Illinois and lived with Mother’s parents for several weeks. Tr. Vol. 2 at
22; Ex. Vol. 3 at 92-112. On November 16, 2019, Mother told Father that
during her maternity leave, she planned to spend more time with her family in
Indiana but did not inform him that she actually planned to move there
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permanently. Ex. Vol. 3 at 115. In fact, in the same text message, she told
Father that she planned to come back to Illinois after Child’s next doctor’s
appointment. Id. Evidence was presented at the hearing to support the finding
that Mother’s actions leading up to her November 25, 2019 filing in Indiana
were intended to deceive Father.
[29] Lastly, Mother argues that the trial court abused its discretion in determining
that Indiana is an inconvenient forum and that Illinois is a more appropriate
forum for custody and parenting time proceedings. She asserts that the trial
court ignored where the witnesses and evidence were located, that hearings had
already been held in Indiana, and that everything would have to be reheard in
Illinois, thereby duplicating costs. Mother claims that it would be an undue
hardship on her to take her ten witnesses and the evidence to Illinois, when
there was no evidence in Illinois and Father was the only witness in Illinois.
We disagree.
[30] The trial court thoroughly reviewed each of the factors under Indiana Code
section 31-21-5-8(b) and noted that 1) there was no evidence of domestic
violence; 2) Child was born on October 22, 2019, one month prior to Mother’s
initial filing, and although Mother asserted that Child had always resided in
Indiana since birth, evidence showed that Mother and Child had spent nearly as
much time in Illinois as Indiana between his birth and the filing of Mother’s
petition; 3) the distance between the Indiana court and the Illinois court is
approximately three hours; 4) both parties testified that they could not afford to
litigate in both Indiana and Illinois and that neither could afford two sets of
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attorneys to litigate in both jurisdictions; 5) dissolution proceedings were
pending in Illinois and Indiana could not exercise jurisdiction over the
dissolution; 6) the trial court had previously found that it lacked personal
jurisdiction over Father to order him to pay child support, and it appeared that
the Illinois Court would have personal jurisdiction and subject matter
jurisdiction to order child support, to dissolve the marriage and to divide
property; 7) the Indiana court did not have jurisdiction over the parties’
dissolution or the issue of child support and if the issue of custody was not
transferred to Illinois, the parties would be required to litigate in two
jurisdictions, which would cause the parties undue financial burden for two sets
of attorneys; 8) although the parties did not agree which state should exercise
jurisdiction for custody issues, they did agree that Illinois had jurisdiction for
the dissolution; 9) both cases in Indiana and Illinois were filed within a month
of each other and given the young age of Child, neither court was more familiar
with the facts and issues involved, the Illinois court was already aware of the
issues involved, and both parties already retained attorneys in Illinois; and 10)
Father believed that Mother was residing in Illinois prior to Child’s birth and
shortly thereafter, that Mother intentionally misled Father to believe that Child
would be born in Illinois, and Mother’s action leading up to filing her petition
on November 25, 2019 were intended to deceive Father.
[31] Mother’s arguments are requests for us to reweigh the evidence, which we
cannot do. Coulibaly, 85 N.E.3d at 916. The trial court did not abuse its
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discretion in concluding that Indiana is an inconvenient forum and that Illinois
is a more appropriate forum to determine the custody and parenting time issues.
II. Jurisdiction for Child Support
[32] Mother argues that the trial court erred when it found that pursuant to UIFSA,
Indiana Code section 31-18.5-2-1, that Illinois had sole jurisdiction over child
support. Mother asserts that Father submitted to the jurisdiction of Indiana,
and therefore, the Indiana trial court could exercise personal jurisdiction over
Father for purposes of determining child support. She maintains that Father
was served in Indiana and filed several responsive pleadings with the Indiana
trial court, including a response to Mother’s objection to his motion to dismiss
and his petition to transfer jurisdiction to Illinois, which had the effect of
submitting to the jurisdiction of the Indiana trial court.
[33] Indiana Code section 31-18.5-2-1 provides in relevant part:
In a proceeding to establish or enforce a support order or to
determine parentage of a child, an Indiana tribunal may exercise
personal jurisdiction over a nonresident individual or the
individual’s guardian or custodian if:
(1) the individual is personally served with a summons, notice, or
subpoena within this state;
(2) the individual submits to the jurisdiction of Indiana by
consent in a record, by entering a general appearance, or by filing
a responsive document having the effect of waiving any contest
to personal jurisdiction.
Court of Appeals of Indiana | Memorandum Decision 20A-DC-1027 | October 26, 2020 Page 23 of 25
Ind. Code § 31-18.5-2-1(a)(1), (2). Further,
A party to a child custody proceeding, including a modification
proceeding, or a petitioner or respondent in a proceeding to
enforce or register a child custody determination, is not subject to
personal jurisdiction in Indiana for another proceeding or
purpose solely by reason of having participated, or of having
been physically present for the purpose of participating, in the
proceeding.
Ind. Code § 31-21-3-4.
[34] In its order finding that Indiana was not a convenient forum to determine the
custody issues, the trial court reiterated that it had issued an order on January
27, 2020 that found pursuant to Indiana Code section 31-18.5-2-1 that Indiana
lacked personal jurisdiction over Father to order child support. Appellant’s App.
Vol. 2 at 68. The evidence presented showed that, contrary to Mother’s
contention, Father was not served in Indiana as Mother’s attempt to serve him
at the March 3, 2020 hearing had no effect because, under Indiana Code section
31-21-3-4, he was not subject to personal jurisdiction in Indiana for child
support merely because he appeared and participated as a party at a hearing in a
child custody proceeding. The evidence also showed that in filing Father’s
motions and objections to the jurisdiction of Indiana over custody and child
support, Father’s attorneys only filed a limited appearance. Id. at 11, 30, 41.
Additionally, although Mother is correct that Father filed several motions and
responses with the trial court, none of these pleadings had the effect of waiving
his contest to personal jurisdiction. All the pleadings stated that Father was not
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consenting to Indiana having jurisdiction and were all filed for the purposes of
objecting to Indiana exercising jurisdiction over child custody and child support
issues and seeking to either dismiss Mother’s petition or to transfer jurisdiction
to Illinois. Id. at 11-14, 30-34, 41-45, 57-60. None of Father’s pleadings had
“the effect of waiving any contest to personal jurisdiction.” See Ind Code § 31-
18.5-2-1(a)(2). The trial court did not err in finding at pursuant to Indiana Code
section 31-18.5-2-1, Indiana lacked personal jurisdiction over Father to order
child support.
[35] Affirmed.
Pyle, J., and Tavitas, J., concur.
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