MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                Jul 27 2018, 8:43 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.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Adam J. Sedia                                             Cassandra Hine
Hoeppner, Wagner & Evans, LLP                             Law Office of Cassandra Hine, P.C.
Merrillville, Indiana                                     San Pierre, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                         July 27, 2018
J.G.L.:                                                   Court of Appeals Case No.
                                                          18A-JP-496
Kenya Roberson,                                           Appeal from the Starke Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Kim Hall, Judge
        v.                                                The Honorable Jeanene Calabrese,
                                                          Magistrate
Quentin Lenig,                                            Trial Court Cause No.
Appellee-Petitioner.                                      75C01-1701-JP-1




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018                     Page 1 of 13
                                 Case Summary and Issue
[1]   Quentin Lenig (“Father”) and Kenya Roberson (“Mother”) have one child

      together, J.L. (“Child”). In early 2017, the parties stipulated to Father’s

      paternity and signed an agreement on custody, support, and parenting time in

      the Starke County Circuit Court (“trial court”). Mother was granted primary

      physical custody of Child and relocated to California with Child permanently.

      Mother then filed a Verified Motion to Transfer Jurisdiction to California,

      under the Uniform Child Custody and Jurisdiction Act (“UCCJA”), and a

      Verified Motion for UCCJA contact between the trial court and the Superior

      Court of San Diego County, California (“the California Court”), where Mother

      now resides. The trial court denied Mother’s motions. Mother now appeals,

      raising only one issue for our review which we restate as whether the trial court

      erred in denying Mother’s motion to transfer jurisdiction to California.

      Concluding the trial court erred, we vacate the trial court’s order and remand

      with instructions.



                             Facts and Procedural History
[2]   Child was born on March 10, 2016, and paternity was established on February

      8, 2017. The trial court granted Mother temporary physical and legal custody

      of Child and granted Father temporary supervised parenting time. In so doing,

      the court noted that Child had been living in California, and that Mother had

      requested permission for Child to return there, but the court ordered Child

      remain in Indiana pending final resolution of custody, parenting time, and

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 2 of 13
      support. Shortly thereafter, Father and Mother signed an agreement on

      custody, support, and parenting time, which the trial court adopted as its order

      on March 20, 2017. The order granted Mother primary physical custody of

      Child, and she was permitted to relocate to California permanently. The order

      also specified Father’s parenting time schedule and addressed the payment of

      travel expenses.


[3]   In August 2017, Father moved for a rule to show cause, arguing Mother was

      wrongfully interfering with his parenting time. Two months later, Mother

      requested supervised parenting time for Father, alleging Father had become

      violent, threatened her, and was using illegal drugs. Following a hearing, the

      trial court denied both parties’ requests and entered an order providing

      additional parenting time for Father and stating that “All orders not modified

      by this order remain in full force and effect.” Appendix of Appellant, Volume

      II at 21.


[4]   Mother retained new counsel and requested the trial court transfer venue to the

      California Court pursuant to the UCCJA. Mother attached an exhibit titled

      “Restraining Order After Hearing (Order of Protection)” (“California

      Restraining Order”). App. of Appellant, Vol. II at 25-28; 30-39. The California

      Restraining Order provided that the California Court held a hearing on January

      29, 2018, which Father and Mother attended, and the court ordered Father to

      stay at least one hundred yards from Mother and Child and restricted Father’s

      contact for three years. The California Restraining Order also incorporated two



      Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 3 of 13
      attachments: (1) “Child Custody and Visitation Order,” id. at 37; and (2)

      “Court[’]s Findings and Orders 1/29/18,” id. at 39.


[5]   The Child Custody and Visitation Order ordered “[n]o visitation to . . . Dad,”

      id. at 37, while the handwritten Court’s Findings and Orders provided:


              (1) Court finds that Father has not been truthful with the court.
                  The Court does not believe Father as Father has lied to the
                  Court about the abusive text messages, threats and his
                  behavior. Father has sought to minimize his actions and does
                  not understand the extent or significance of his behavior.


              (2) Counsel for Mother is to file a request for Order regarding
                  modification of child custody / visitation. Court sets hearing
                  date on custody for March 12, 2018 at 11:15 a.m.


              (3) Court exercised child custody [j]urisdiction pursuant to
                  Family Code 3424.


              (4) Court finds that Mother’s allegations of abuse by Father are
                  substantiated and issues a 3 year restraining order, listing both
                  Mother and [Child] as protected parties. Court will reassess
                  custody and whether it retains emergency jurisdiction [sic]
                  March 12, 2018 FO [sic] hearing.


      Id. at 39.


[6]   The trial court held a hearing on Mother’s Motion Verified Motion to Transfer

      Jurisdiction to California on February 19, 2018. Both Father’s and Mother’s

      counsel attended in person, as did Father, and Mother attended by telephone.




      Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 4 of 13
Mother rested on the verified statements in her motion. Following arguments

from counsel, the trial court made the following ruling on the motion:


        [The Court]: Yeah. You know, here’s the deal. I’m not – I’m
                     not losing jurisdiction over this case. From day one
                     (1) the mother has repeatedly attempted to keep
                     [Father] out of this child’s life. We – I accepted the
                     agreement and allowed her to remove herself and
                     the child – at first I had to order the child to remain
                     in Indiana and she could go back to California or
                     wherever she was, by herself, but she chose to stay
                     here and she just keeps doing it, and doing it, and
                     I’m not gonna’ do it. I’m not giving up jurisdiction
                     on this case. So, I don’t know where that leaves
                     either one of you but I’m not gonna’ do it. The
                     [UCCJA] allows this Court to retain it because this
                     is where the decree of paternity was entered. And
                     I’m keeping it. And I’m not giving it away. So,
                     [Mother], if you want this Court to address any
                     issues regarding [Child], I suggest that you show up
                     in this courtroom for hearings. Do you have any
                     questions ma’am?


        [Mother]:         Um – I don’t have any questions, but –


        [The Court]: Okay. So, I’m denying your request to transfer the
                     case out to California. That’s all for today.


Transcript, Volume II at 8-9. The trial court then entered the following order

on February 21, 2018:


        [T]he Court denies the Verified Motions for the following
        reasons:


Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 5 of 13
        1.       In open court on February 8, 2017, the Court was made
                 aware of [Mother] relocating to the State of California
                 with [Child] and being in violation of I.C. 31-17-2.2.


        2.       On February 8, 2017, after the submission of evidence the
                 Court granted temporary custody of [Child] to [Mother]
                 based upon [Mother]’s promise that she would remain in
                 Indiana with [Child] until a final hearing could be held
                 regarding custody, parenting time and child support.


        3.       Since the inception of this case, the Court has observed
                 that [Mother] has continuously attempted to inhibit the
                 relationship between [Father] and [Child] without
                 reasonable justification for doing so.


        4.       On March 20, 2017, the Court approved the parties’
                 agreement allowing for [Mother] to relocate to the State of
                 California with [Child] because [Father] was given
                 extended parenting time with [Child] . . . .


        5.       The Court would not have allowed for [Child] to relocate
                 to California with [Mother] if there had not been a
                 provision in the agreement allowing for reasonable
                 parenting time for [Father] because it has been found by
                 this Court that it is in the best of interest [sic] of the child
                 that [Child] has a relationship with [Father].


        6.       The Court reaffirms [Father]’s parenting time pursuant to
                 the agreement approved and ordered by this Court on
                 March 20, 2017, and [Father] is entitled to parenting time
                 with [Child] from March 26, 2018 through April 6, 2018
                 which is [sic] the dates for spring break for 2018 based
                 upon the local school year.



Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018        Page 6 of 13
      App. of Appellant, Vol. II at 9-10. Mother now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   We review a court’s decision to exercise jurisdiction for an abuse of discretion.

      Barwick v. Ceruti, 31 N.E.3d 1008, 1014 (Ind. Ct. App. 2015). “In reviewing the

      court’s decision, we consider only the evidence most favorable to the decision

      and reverse only where the result is clearly against the logic and effect of the

      facts and the reasonable inferences to be drawn therefrom.” Id. We review

      matters of statutory interpretation de novo because they present pure questions of

      law. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).


                                             II. Jurisdiction
[8]   Mother argues the trial court abused its discretion in denying her motion to

      transfer jurisdiction to California. Specifically, Mother argues the trial court

      failed to consider the factors enumerated in Indiana Code section 31-21-5-8(b).

      In turn, Father argues application of the statute is unnecessary because he

      continues to reside in Indiana.


[9]   We begin by noting that Father’s argument confuses jurisdiction with an

      inconvenient forum. The question before us is not one of jurisdiction—the trial

      court’s jurisdiction over this matter is undisputed. See Brief of Appellant at 11.

      “The fundamental principle underlying the UCCJA is that once a court with a

      jurisdictional basis exercises jurisdiction over a ‘custody’ issue, that court

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 7 of 13
       retains exclusive jurisdiction over all custody matters so long as a ‘significant

       connection’ remains between the controversy and the state.” In re Custody of

       A.N.W., 798 N.E.2d 556, 561 (Ind. Ct. App. 2003) (citation omitted), 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. at 561-

       62.


[10]   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. Barwick, 31 N.E.3d at 1015. 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:


                        (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

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 8 of 13
               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.


                        (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.


[11]   Mother argues she referenced the foregoing factors and gave verified supporting

       facts for each, but the trial court “completely disregarded all of the eight factors,

       both in its oral ruling and its written Order.” Brief of Appellant at 13.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018     Page 9 of 13
       Considering the statute states the court “shall consider” the factors, Mother

       contends the trial court abused its discretion. We agree.


[12]   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). And, in the

       few cases applying the current statute,1 the trial court has considered all relevant

       factors. See Barwick, 31 N.E.3d at 1015 (the trial court “thoroughly reviewed

       each of” the factors and made specific findings); Tamasy, 929 N.E.2d at 834 (the

       trial court made findings regarding seven of the factors, save domestic violence,

       as well as additional findings that supported its determination). However,

       whether a trial court must consider all relevant factors appears to be an issue of

       first impression.


[13]   Statutory interpretation is a function for the courts, and our goal in statutory

       interpretation is to determine, give effect to, and implement the intent of the

       legislature as expressed in the plain language of its statutes. State v. Prater, 922

       N.E.2d 746, 749 (Ind. Ct. App. 2010), trans. denied. We look first to the

       statutory language, and we presume that the words of the statute were selected

       and employed to express their common and ordinary meanings. F.D. v. Indiana

       Dep’t of Child Servs., 1 N.E.3d 131, 136 (Ind. 2013). “Where the statute is




       1
         Under the previous version of the statute, Indiana Code section 31-17-3-7 (1997), a trial court “may take
       into account” the section’s five enumerated factors when determining whether it is an inconvenient forum.
       Ind. Code § 31-17-3-7(c) (1997).

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018                    Page 10 of 13
       unambiguous, the Court will read each word and phrase in this plain, ordinary,

       and usual sense, without having to resort to rules of construction to decipher

       meanings.” Id. (citation omitted). Accordingly, clear and unambiguous

       statutes leave no room for judicial construction.


[14]   Indiana Code section 31-21-5-8(b) states that, “[b]efore 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,”

       and that, “[f]or this purpose, the Indiana court shall allow the parties to submit

       information and shall consider the relevant factors.” (Emphases added.) The

       word “shall” is presumptively treated as mandatory “unless it appears clear

       from the context or the purpose of the statute that the legislature intended a

       different meaning.” Indiana Civil Rights Comm’n v. Indianapolis Newspapers, Inc.,

       716 N.E.2d 943, 947 (Ind. 1999). Here, we find no indication the legislature

       intended a different meaning for the word “shall.” Therefore, we conclude the

       plain language of Indiana Code section 31-21-5-8(b) requires a trial court to

       consider the enumerated factors as well as any additional relevant factors for

       which the parties submit information. This is not to say, however, that a trial

       court need explicitly address each enumerated factor; as the statute’s use of

       “relevant” suggests, the trial court need not consider factors not implicated by

       the evidence. Ind. Code § 31-21-5-8(b).


[15]   Here, the trial court neither issued findings concerning the relevant factors nor

       orally explained that it had considered them. Apparently, the trial court’s only

       consideration was its finding that Mother had “continuously attempted to

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 11 of 13
       inhibit the relationship” between Father and Child. App. of Appellant, Vol. II

       at 9; see also Tr., Vol. II at 8-9. Although a permissible consideration, this alone

       is insufficient to satisfy the statute. Moreover, the trial court clearly stated:


               I’m not gonna’ do it. I’m not giving up jurisdiction on this case.
               So, I don’t know where that leaves either one of you but I’m not
               gonna’ do it. The [UCCJA] allows this Court to retain it because
               this is where the decree of paternity was entered. And I’m
               keeping it. And I’m not giving it away. So, [Mother], if you
               want this Court to address any issues regarding [Child], I suggest
               that you show up in this courtroom for hearings.


       Tr., Vol. II at 8-9.


[16]   Clearly, the trial court was determined to retain jurisdiction—regardless of

       whether California was a more convenient forum. Indiana Code section 31-21-

       5-8(b) requires a trial court consider all relevant factors before making such

       determination. Therefore, we conclude the trial court abused its discretion.


[17]   Since Mother submitted information regarding the enumerated factors, we find

       it unnecessary for the trial court to conduct another hearing. On remand, we

       direct the trial court to consider the relevant factors before determining whether

       California is a more convenient forum.



                                                Conclusion
[18]   Concluding the trial court erred by failing to consider relevant factors pursuant

       to Indiana Code section 31-21-5-8(b), we vacate the trial court’s order and

       remand with instructions.
       Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 12 of 13
[19]   Vacated and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-496 | July 27, 2018   Page 13 of 13
