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

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 14 2019, 8:54 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE David J. Karnes Jill A. Gonzalez Tara M. Smalstig Muncie, Indiana Michael G. Foley Dennis, Wenger & Abrell P.C. Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of August 14, 2019 R.S. (Minor Child): Court of Appeals Case No. 19A-JP-450 Appeal from the Jay Circuit Court K.B., The Honorable Bob A. Witham, Appellant-Petitioner, Special Judge v. Trial Court Cause No. 38C01-1806-JP-20 J.S., Appellee-Respondent.

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JP-450 | August 14, 2019 Page 1 of 5

Case Summary [1] An Ohio court issued a custody order concerning R.S. (“Child”), the daughter

of K.B. (“Mother”) and J.S. (“Father”). Mother later petitioned to modify

custody. An Indiana court denied the petition without reaching the merits,

determining it lacked authority to modify the Ohio order. Mother now appeals. [2] We reverse and remand.

Facts and Procedural History [3] In 2016, an Ohio court entered a custody order concerning Child, making

Mother the primary physical custodian. The order incorporated a Shared

Parenting Plan with the following provision: “If Mother moves outside of

Warrick County, Indiana, then Father shall be the primary caregiver.” App.

Vol. 2 at 19. In 2018, Mother moved to transfer the case to Jay County,

averring that Mother and Father lived in Indiana and Child had lived in

Indiana for more than six months preceding the motion. Mother also filed

notice of her intent to relocate to Atlanta. Father objected, asserting that—

pursuant to the Ohio order—if Mother relocated, he would become the primary

physical custodian. Mother then petitioned to modify the custody order.

Father filed an objection. Father also filed a document captioned Verified

Petition to Enforce the Court Order and Verified Petition for Contempt in

which he acknowledged the Indiana court “obtained jurisdiction” over the

matter. Id. at 52. The court later held an evidentiary hearing on the petition to

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modify custody. In its ensuing order, the court denied the petition, concluding

it was “without authority to modify the Order of the Ohio Court with respect to

the issue of any move by Petitioner outside of Warrick County, Indiana.” Id. at

6. Mother then filed a motion to correct error, which the trial court denied. [4] Mother now appeals.

Discussion and Decision [5] “We typically review a trial court’s ruling on a motion to correct error for an

abuse of discretion.” State v. Reinhart, 112 N.E.3d 705, 709-10 (Ind. 2018). To

the extent the ruling rests on a question of law, our review is de novo. See id.

Here, the underlying ruling was the denial of a petition to modify custody, with

the trial court concluding it lacked authority to modify an out-of-state order. [6] The Uniform Child Custody Jurisdiction Act (“UCCJA”) applies to custody

matters with interstate dimension. See Ind. Code art. 31-21. “A decision to

retain or relinquish jurisdiction under the UCCJA is reviewed for an abuse of

discretion,” which “occurs when the trial court’s decision is clearly against the

logic and effect of the circumstances before it, or if the court has misinterpreted

the law.” Hays v. Hockett, 94 N.E.3d 300, 304 (Ind. Ct. App. 2018), trans. denied. [7] In the absence of emergency circumstances, an Indiana court has authority to

modify a custody order from a sister state if (1) “an Indiana court has

jurisdiction to make an initial determination” as provided in Indiana Code

Section 31-21-5-1, and (2) “an Indiana court or a court of the other state

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determines that: (A) the child; the child’s parents; and (C) any person acting as

a parent; do not presently reside in the other state.” I.C. § 31-21-5-3. A court

may make an initial determination if “Indiana is the home state of the child on

the date of the commencement of the proceeding.” I.C. § 31-21-5-1. The home

state of the child is “the state in which a child lived with: (1) a parent; or (2) a

person acting as a parent; for at least six (6) consecutive months immediately

before the commencement of a child custody proceeding.” I.C. § 31-21-2-8. [8] At the evidentiary hearing, it was undisputed Mother, Father, and Child resided

in Indiana—not Ohio. It was also undisputed Child lived in Indiana with

Mother for the pertinent time period. Indeed, part of the hearing focused on

custody exchanges taking place “since 2016” between Mother’s residence in

Newburgh and Father’s residence in Dunkirk. Tr. at 29. Moreover, we note

Father does not directly dispute the court’s authority to reach the merits of the

petition. He does not cite to the UCCJA, and he makes no attempt to dispute

that Mother, Father, and Child lived in Indiana at times pertinent to provisions

of the UCCJA. Father instead asserts the court “had discretion to rule as [it]

did.” Br. of Appellee at 8. He argues Mother should have appealed the Ohio

order, and he discusses issues bearing on the merits of Mother’s petition. [9] We conclude the court had authority to modify the Ohio custody order, and it

erred as a matter of law by denying the petition for lack of authority. We

reverse and remand for consideration of the petition and a ruling on its merits.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-450 | August 14, 2019 Page 4 of 5 [10] Reversed and remanded.

Najam, J., and May, J., concur.

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