In the Matter of the GUARDIANSHIP OF C.M.W., a minor child,
Carl Dennis White, Appellant-Petitioner,
v.
Lisa White, Appellee-Respondent.
Court of Appeals of Indiana.
*645 *646 Thomas B. O'Farrell, McClure & O'Farrell, P.C., Westfield, IN, Attorney for Appellant.
Jill E. Goldenberg, Cohen Garelick & Glazier, Indianapolis, IN, Attorney for Appellee.
OPINION
KIRSCH, Judge.
Cаrl Dennis White (Grandfather) appeals the trial court's order finding him in contempt, raising the following issues for review:
I. Whether the trial court had subject matter and personal jurisdiction over the guardianship of a child who had lived in Indiana, but moved to Arkansas prior to the commencement of the guardianship proceedings.
II. Whether the trial court's order of contempt was detailed enough to satisfy Grandfather's right to due process where it stated only generally that Grandfather was in contempt.
III. Whether the trial court erred in setting Grandfather's appeal bond *647 for the amount of the other party's hearing and appellate аttorney fees.
We affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
C.M.W. was born on January 7, 1997 in Clinton County, Illinois to Lisa White (Mother). From his birth until January 2000, Mother and C.M.W. lived in Illinois. In January 2000, Mother and C.M.W. moved to Indiana. For the first two months, they lived with Grandfather and his wife in their residence. After that time, Mother and C.M.W. lived in an apartment on Grandfather's property.
In November 2000, Mother and C.M.W. moved to Arkansas and established residence with Mother's boyfriend and two roommates. Mother obtained an Arkansas driver's license and health insurance for C.M.W. from the State of Arkansas. She also registered to vote and secured employment.
In mid-January 2000, Mother and C.M.W. returned to Indiana with Mother's boyfriend while he was on a temporary work assignment in Indiаna. They lived in a hotel room paid for by Mother's boyfriend's employer. After a few days, Mother sent C.M.W. to live in Illinois with her mother, C.M.W.'s grandmother.
On February 27, 2001, Grandfather filed an emergency petition to establish guardianship of C.M.W. alleging that C.M.W. was in immediate danger, which the trial court granted. Grandfather traveled to Illinois to C.M.W.'s grandmother's hоuse, retrieved the child, and assumed custody of him. In response, Mother filed a motion to dismiss Grandfather's petition.
After a hearing on March 20, 2001, the trial court found that it did not have subject matter or personal jurisdiction over the case and granted Mother's motion to dismiss. In addition, it found Grandfather in contempt and ordered him tо pay Mother's attorney fees of $2640 or spend twenty-one days in jail. Thereafter, the trial court set the appeal bond in an amount equal to Mother's attorney fees for the case, including appeal. Grandfather now appeals.
DISCUSSION AND DECISION
Grandfather first argues that the trial court erred in determining that it lackеd jurisdiction over the guardianship proceedings. There are three types of jurisdiction: 1) jurisdiction of the subject matter; 2) jurisdiction of the person; and 3) jurisdiction of the particular case. In re Guardianship of K.T.,
The jurisdiction of Indiana courts to hear guardianship actions is set by statute. The statute explains that an Indiana court has exclusive original jurisdiction over "[t]he business affairs, physical pеrson, and property of every incapacitated person and minor residing in Indiana." IC 29-3-2-1(a)(1). Here, there was sufficient evidence to support the conclusion that C.M.W. did not reside in Indiana. First, C.M.W. was not physically present in Indiana when the petition was filed, but was in Illinois. He and Mother had recently moved to Arkansas from Indianа. Mother returned temporarily to Indiana to accompany her boyfriend on a work assignment and left C.M.W. with her mother in Illinois. The trial court did not err in *648 determining that it did not have jurisdiction under the guardianship statute.
Nonetheless, Grandfather points to In re Support of Seligman,
Assuming the UCCJA applies here, our conclusion that the trial court lacked subject matter jurisdiction would remain unchanged. Under the UCCJA, an Indiana court has an affirmative duty to quеstion its jurisdiction when it becomes aware of an interstate dimension in a child custody dispute. Pryor v. Pryor,
(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this state
(A) is the home state of the child at the time of commencement of the proceeding, or
(B) had been the child's home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(2) it is in the best interest of the child that a court of this state assume jurisdiction because
(A) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and
(B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(3) the child is physically present in this state and the child has been abandoned; or
(4) (A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
(B) it is in the best interest of the child that this court assume jurisdiction.
*649 (b) Except under paragraphs (3) and (4) of subsection (a) physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not prerequisite for jurisdiction to determine his custody.
Jurisdiction is established under subsection (1) only if Indiana is or has been the home state of the child. Rios v. Rios,
Here, during the three months prior to Grandfather's emergency petition, C.M.W. lived in Arkansas with Mother. Prior to that, he lived in Indiana with Mother. Thus, neither Arkansas nor Indiana qualifies as C.M.W.'s home state.
When the "home state" test does not apply to the facts, the "significant connection" test found in IC 31-1-11.6-3(a)(2) may be used to provide an alternative basis for subject matter jurisdiction. Rios,
In Brokus v. Brokus,
By contrast, here, Mother and C.M.W. have not lived in Indiana for three months prior to the filing of the emergency petition. Grandfather's emergency petition was based on the conditions of Mother's home. Indiana has no connection to that home. If nеcessary, Arkansas authorities can investigate Grandfather's allegations, implement a plan for C.M.W.'s welfare, and monitor compliance with the plan. Moreover, to the extent that the conduct Grandfather complains of is criminal, Arkansas has jurisdiction to bring criminal charges. In short, all of the evidence сoncerning C.M.W.'s welfare and upbringing is available in Arkansas. The trial court did not err in finding that Indiana did not have a significant connection to this controversy to establish personal and subject matter jurisdiction. See Williams,
Grandfather next contends that the trial court's contempt order is too vague to comport with the requirements of due process. The court's order states merely that the court found Grandfather in contemрt. At a subsequent hearing, Grandfather asked the court to specify which actions it found contemptuous. The trial court stated *650 that it "found the grandfather in contempt because of his misrepresentation[s] to the Court which were clearly evident from his testimony." Transcript of Proceedings of March 29, 2001 at 3. The court then explained that Grandfather's actions аmounted to civil contempt, "[b]ut it has over tones as well of criminal contempt in the sense that the Court also found that his statements were perjurious as well." Id. at 4. When Grandfather specified that the trial court had found indirect contempt, the trial court added "And direct contempt." Id. Thus, the Record is less than clear about what the trial court intended.
In reviewing a contempt judgment we will not reweigh evidence or judge credibility of witnesses. Funk v. Macaulay,
Citations for civil contempt are intended to be coercive, while those for criminal contempt are meant to be punitive. Hopping v. State,
In this case, Grandfather did not fail to conform to a court order issued for Mother's benefit. Indeed, the trial court had not issued any orders beyond the granting of the temporary guardianship at the time. Thus, the trial court abused its discretion in finding Grandfather in civil contempt.
Direct criminal contempt involves actions occurring near the court that interfere with the business of the court, and of which the judge has personal knowledge. Hopping,
IC XX-XX-X-X provides summary proceedings for disposing of direct contempt. Our supreme court has explained that such summary procedures are nеcessarily because of the immediate threat to the integrity of the court from direct contempt. "It is essential for a court to be able `[t]o protect itself against gross violations of decency and decorum ...' as it pursues justice." Id. at 1296-97 (quoting Brown v. Brown,
However, in In re Marriage of Neiswinger,
Likewise, here, the trial court's contempt finding was issued in response to Grandfather's misrepresentations in his emergency petition. However, the misleading nature of these statements was not evident until the trial court heard the testimony of other witnesses. Grandfather did not cause a disruption or disturbance of the proceedings. His actions may have been frivolous, unethical, malicious, or even perjurious, but they are not directly contemptuous.
Indirect contempt undermines the аctivities of the court but fails to satisfy one of the other direct contempt requirements. Hopping,
In such cases, IC XX-XX-X-X provides clear due process protections.It states:
(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt; to be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defеndant; and
(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.
(d) A rule provided for under subsection (b) may not issue until the facts alleged to constitute the contempt have been:
(1) brought to the knowledge of the court by an information; and
(2) duly verified by the oath of affirmation of some officers of the court or other responsible рerson.
None of these due process considerations were afforded Grandfather before the trial court found him in contempt. Therefore, we must reverse that portion of the trial court's order finding Grandfather in contempt.
Finally, Grandfather argues that the trial court erred in setting the amount of his appеal bond equal to the total cost of Mother's attorney fees for the hearing and appeal. Trial courts have the authority to set an appeal bond. See Ind. Trial Rule 62(D)(2). Further, the fixing of the amount of the appeal bond is in the discretion of the trial court. Anthrop v. Tippecanoe Sch. Corp.,
Affirmed in part and reversed in part.
BAILEY, J., and BROOK, J., concur.