                                                                      May 11 2015, 10:55 am




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Andrea L. Ciobanu                                        Michael H. Michmerhuizen
      Alex Beeman                                              Fort Wayne, Indiana
      Ciobanu Law, P.C.
                                                               Cornelius B. Hayes
      Indianapolis, Indiana
                                                               Hayes & Hayes
                                                               Fort Wayne, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jennifer L. Barwick,                                     May 11, 2015

      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               02A05-1407-DR-350
              v.                                               Appeal from the Allen Superior
                                                               Court

      Joseph A. Ceruti,                                        The Honorable Charles F. Pratt,
                                                               Judge
      Appellee-Petitioner
                                                               Case No. 02D08-1306-DR-841




      Vaidik, Chief Judge.



                                          Case Summary
[1]   Jennifer Barwick (Mother) moved to Indiana from Canada in March 2013. She

      lived with Joseph Ceruti (Father) and became pregnant six weeks later. Mother

      and Father were married in May 2013. After marital difficulties, Mother

      returned to Canada three months after she arrived in Indiana. Father filed a

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      petition for dissolution and a motion to preserve and retain jurisdiction of final

      orders for the child that was expected to be born on December 25, 2013.

      Following a hearing where Mother appeared telephonically, the trial court

      issued a December 2, 2013 order concluding that it had jurisdiction over the

      unborn child’s custody. When the child was born two weeks later, Mother did

      not tell Father about the child’s birth or include Father’s name on the birth

      certificate. On December 20, the Ontario Superior Court of Justice, which is

      the Canadian trial court, issued an ex parte order that K.M. would reside with

      Mother. In May 2014, the Indiana trial court held a hearing on the dissolution

      petition and awarded custody of the child to Father.


[2]   Mother argues that the trial court never obtained exclusive and continuing

      jurisdiction and, even if it did, the court should have deferred jurisdiction to the

      Canadian court when it became involved in the case at the end of December

      2013. However, because the trial court made a child-custody determination, we

      find no error. Mother also argues that even if the Indiana court had

      jurisdiction, it should have relinquished it to Canada because Canada is a more

      appropriate forum. However, our review of the evidence reveals that Indiana

      was the appropriate forum, and the trial court did not err. We therefore affirm

      the trial court.



                            Facts and Procedural History
[3]   On March 2, 2013, Mother arrived in Fort Wayne, Indiana, from Ontario,

      Canada, and moved in with Father, an established local business owner. Six

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      weeks later, Mother was pregnant. Father and Mother were married on May

      13, 2013, in Florida. Mother listed her Indiana address on the marriage license.

      Because of marital difficulties, Mother told Father that she was returning to

      Canada. On June 18, Father filed a petition for dissolution.


[4]   On July 5, 2013, counsel Melissa Avery filed an appearance on behalf of

      Mother. On August 5, 2013, Father filed a motion to preserve and retain

      jurisdiction of final orders concerning custody, parenting time, and child

      support for the child of the marriage that was expected to be born on December

      25, 2013. Four days later, Avery filed a motion to withdraw. On August 28,

      2013, counsel Christopher LaPan filed an appearance on behalf of Mother.

      That same day, Mother filed a petition to annul the parties’ marriage, a motion

      for an expedited hearing on her petition, and a motion for telephonic testimony

      wherein she conceded that the trial court had “ongoing jurisdiction over the

      subject matter and parties in this cause of action.” Appellee’s App. p. 4. On

      October 9, 2013, Mother filed a motion to dismiss her petition to annul, which

      the trial court granted. Less than a week later, attorney Christopher LaPan

      filed a motion to withdraw his appearance.


[5]   On October 21, 2013, the trial court held a hearing on Father’s motion to

      preserve and retain jurisdiction of the final orders concerning custody, parenting

      time, and child support. Mother telephoned the trial court from Canada during

      the hearing and requested a continuance. The trial court denied Mother’s

      request but allowed her to participate in the hearing by telephone. At the

      hearing, Father testified that Mother had previously demanded that he pay her

      Court of Appeals of Indiana | Opinion 02A05-1407-DR-350 | May 11, 2015   Page 3 of 14
      $100,000 if he wanted to prevent her from getting an abortion. After returning

      to Canada, Mother also became involved in a sexual relationship with a former

      boyfriend who had previously threatened to kill her. Father expressed concern

      for the health and safety of his unborn child.


[6]   On December 2, 2013, the trial court issued an order finding that the parties’

      child was not yet born, there was no case pending in Canada, Father had never

      been to Canada, K.M. was conceived in Indiana, the parties lived together in

      Indiana, and Father had a business in Indiana. Based on these findings and the

      Uniform Child Custody Jurisdiction Act (UCCJA), the trial court concluded

      that pursuant to Stewart v. Vulliet, 888 N.E.2d 761 (Ind. 2008), it had the

      authority to exercise jurisdiction over the issue of the unborn child’s custody.

      In this order, the trial court awarded Father “full and co-equal parenting time

      rights with regard to the child when born.” Appellant’s App. p. 41. The trial

      court also ordered Mother to include Father’s name on the child’s birth

      certificate when the child was born and to provide Father with her current

      address. The trial court further ordered Mother to execute consent for the

      exchange of information with regard to the child’s prenatal, birth, and post-

      birth medical care.


[7]   The parties’ child, daughter K.M., was born on December 11, 2013. Mother

      did not notify Father of their child’s birth or include his name on the child’s




      Court of Appeals of Indiana | Opinion 02A05-1407-DR-350 | May 11, 2015    Page 4 of 14
      birth certificate.1 On December 20, the Ontario Superior Court of Justice

      (Court of Justice) issued an ex parte order that K.M. would reside with her

      mother and was not to be removed from Ontario. The Court of Justice also

      ordered Mother to “issue an application for custody of the child . . . together

      will all supporting material on or before February 1, 2014 and serve that

      material on the respondent, [Father].” Appellant’s App. p. 117. On January

      31, 2014, the Court of Justice stayed Mother’s custody application “pending

      argument of the jurisdictional question.” Appellee’s App. p. 34. On March 19,

      2014, Justice Patterson of the Court of Justice issued an order finding that the

      Court of Justice had jurisdiction over the custody of the child. Specifically, the

      justice recognized that there was an outstanding custody order in Indiana but

      concluded that the custody order was granted before K.M. was born and was

      “of no force or effect in Ontario.” Appellant’s App. p. 122. Accordingly,

      Justice Patterson permitted Mother to proceed with her custody application.


[8]   On May 9, the Indiana trial court held a hearing on the dissolution petition.

      Testimony at the hearing revealed that Mother would not allow Father to see

      his daughter. Mother received an ex parte protective order against Father and

      told him she would contact the police if he entered her property. She also

      threatened to have Father arrested at the Canadian border. Father testified that

      Mother had given their daughter a surname that was neither Father’s nor




      1
       Father learned of his daughter’s birth and saw her first picture on a social-media site two weeks after she
      was born.

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       Mother’s. Father was not listed on his daughter’s birth certificate so he was not

       able to apply for citizenship for her or get her a passport. Father estimated he

       had spent $250,000 on American and Canadian attorneys, experts, and private

       investigators in an unsuccessful attempt to meet his daughter. Father further

       testified that Mother’s brother sent him a threatening email. Last, Father

       testified that he had a nursery prepared for K.M. and had hired a nanny to

       assist him. He had also found a pediatrician and researched schools in Fort

       Wayne.


[9]    On July 10, 2014, the trial court took judicial notice of its December 2013 order

       and issued an order dissolving the parties’ marriage and determining custody.

       Specifically, the trial court found that K.M.’s interests were best served by the

       trial court exercising jurisdiction over custody.


[10]   The trial court further concluded that Indiana was the appropriate forum to

       hear the case for the following reasons: 1) although Father has no history of

       domestic violence, Mother has been involved in a relationship with a man who

       threatened her; 2) although K.M. has resided in Canada since her birth, her

       current domicile is a direct result of Mother’s conduct; 3) given K.M.’s young

       age, there are no significant bonds binding her to either jurisdiction because she

       has not yet started any school, religious, or community program that would

       provide greater evidence regarding her best interests in Canada; 4) Father is a

       business owner who has the ability to provide for K.M.’s needs while Mother’s

       income is more limited; 5) the distance between Windsor, Canada, and Fort

       Wayne is 166 miles, which is an approximately three-hour drive; 6) although

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           Mother has said she was not able to enter the United States to participate in a

           custody proceeding, immigration attorneys testified she could enter the country

           if she presented documentation of the divorce; 7) Mother obtained an ex parte

           order in Canada precluding Father from contacting her, and she has not

           complied with any of the trial court’s orders that were calculated to preserve

           Father’s rights to K.M., such as Mother placing his name on the birth certificate

           or even advising him of his daughter’s birth; 8) Mother did not challenge

           jurisdiction at the beginning of the case; 9) significant evidence about the

           marriage, the marital estate, and the circumstances of the parties’ relationship

           exists in Indiana; 10) ex parte orders have been put in place against Father in

           Canada, but Mother has been afforded due process in Indiana; and 11) the

           present case was the first one initiated with regard to the marriage and custody

           of the child, and Mother has had the opportunity to participate in all hearings.

           Father has not participated in the Canadian proceedings.


[11]       After determining that it had jurisdiction over the custody of K.M. and that

           Indiana was the appropriate forum, the trial court awarded custody of the child

           to Father. Mother appeals.2



                                       Discussion and Decision


       2
        On October 2, 2014, the Court of Appeal for Ontario affirmed the Court of Justice’s March 19, 2014 order and
       on November 14, 2014, the Court of Justice awarded custody of K.M. to Mother and ordered Father to pay
       Mother $1,077 per month in child support.




           Court of Appeals of Indiana | Opinion 02A05-1407-DR-350 | May 11, 2015                         Page 7 of 14
                                             I. Jurisdiction
[12]   Mother first contends that the trial court did not have “jurisdiction over the

       custody of K.M.” Appellant’s Br. p. 11. Specifically, she appears to argue that

       the Indiana trial court never obtained exclusive and continuing jurisdiction over

       the case, and even if it did, it should have deferred jurisdiction to Canada when

       the Court of Justice issued its ex parte order on December 20, 2013, preventing

       the removal of K.M. from Canada.


[13]   Mother, however, has waived appellate review of this issue because she

       expressly consented to the trial court’s authority to determine her daughter’s

       custody when she conceded that the trial court had “ongoing jurisdiction over

       the subject matter and parties in this cause of action” after Father filed his

       motion to preserve and retain jurisdiction of final orders concerning custody

       and parenting time, Appellee’s App. p. 4, requested a continuance of the

       October 21, 2012 hearing on this motion, and subsequently participated in the

       hearing telephonically when her motion was denied. See Williams v. Williams,

       555 N.E.2d 142, 145 (Ind. 1990) (stating that Mother’s express consent to trial

       court’s authority to determine custody resulted in waiver of jurisdictional issue);

       Paternity of B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App. 2014) (explaining that

       Father waived his challenge to trial court’s jurisdiction when he consented to

       trial court appointing guardian for his daughter).


[14]   Waiver notwithstanding, we find no error. Under the UCCJA, an Indiana

       court has an affirmative duty to question its jurisdiction when it becomes aware


       Court of Appeals of Indiana | Opinion 02A05-1407-DR-350 | May 11, 2015     Page 8 of 14
       of an interstate dimension in a child-custody dispute.3 Bowles v. Bowles, 721

       N.E.2d 1247, 1249 (Ind. Ct. App. 1999). When confronting an interstate

       custody dispute, the trial court must engage in a multi-step analysis to

       determine: 1) whether it has subject-matter jurisdiction; 2) whether there is a

       custody proceeding pending in another state which would require the court to

       decline its jurisdiction; and 3) whether the trial court should exercise its

       jurisdiction because Indiana is the most convenient forum. Id.


[15]   We review a trial court’s UCCJA jurisdiction determination for an abuse of

       discretion. Id. An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before the

       court. Id. The court also abuses its discretion when it misinterprets or

       misapplies the law. Id.


[16]   The UCCJA provides that a trial court has jurisdiction if Indiana is the home

       state of the child when the proceedings were commenced or the home state

       declines to exercise jurisdiction. Ind. Code § 31-21-5-1. For the purposes of the

       UCCJA, the home state of a child less than six months old is the state in which

       the child has lived since birth with a parent. Ind. Code § 31-21-2-8.




       3
         Although neither party challenges the status of Canada as a state under the UCCJA, we note that the
       statute defines “State” as a “state of the United States, the District of Columbia, Puerto Rico, the United
       States Virgin Islands, or a territory or an insular possession subject to the jurisdiction of the United States.”
       Ind. Code § 31-21-2-19. However, this Court has broadly interpreted “state” to include foreign countries. See
       Ruppen v. Ruppen, 614 N.E.2d 577 (Ind. Ct. App. 1993) (concluding Italy was a “state” for the purposes of the
       UCCJA, which was known as the UCCJL before its recodification in 2007).

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[17]   However, where, as here, a parent files his or her petition before the child is

       born, the child does not have a home state when the proceedings were

       commenced, and no other state has custody jurisdiction over her because she

       has not been born, Indiana has child-custody jurisdiction. See Stewart, 888

       N.E.2d at 765. This jurisdiction is exclusive and continuing so long as the

       Indiana court has made a child-custody determination. Ind. Code § 31-21-5-2.

       A child-custody determination is a “court order providing for . . . legal custody,

       physical custody, or visitation . . . .” Ind. Code § 31-21-2-4.


[18]   Here, Mother first argues that the Indiana court did not have exclusive and

       continuing jurisdiction because it did not issue a legal or physical custody order

       before the Canada court’s December 20 order. However, a child-custody

       determination also includes a visitation order. See id. The trial court’s

       December 2, 2013 order awarded Father “full and co-equal parenting time

       rights with regard to the child when born.” Appellant’s App. p. 41. The phrase

       “parenting time” is now used instead of the term “visitation” to emphasize the

       importance of time spent with the child. J.M. v. N.M., 844 N.E.2d 590, 599 n.6

       (Ind. Ct. App. 2006). Because the trial court’s December 2, 2013 order

       provided for visitation, the trial court assumed exclusive and continuing

       jurisdiction at that time.


[19]   We further note that although Canada later became K.M.’s home state, Indiana

       did not necessarily lose jurisdiction. See Stewart, 888 N.E.2d at 766. “The mere

       fact that the child and her custodial parent live in another state does not compel

       dismissal.” Id. Although the physical presence of the child is desirable, it is not

       Court of Appeals of Indiana | Opinion 02A05-1407-DR-350 | May 11, 2015      Page 10 of 14
       a prerequisite for jurisdiction to determine custody. Ind. Code § 31-21-5-1(c).

       Here, the trial court issued a child-custody determination on December 2, 2013.

       Because a custody case was already pending in Indiana in conformity with the

       UCCJA, when K.M. was born on December 11, the Indiana trial court could

       have either continued jurisdiction or deferred it to Canada. See Stewart, 888

       N.E.2d at 766. In its July 10, 2014 order, the trial court determined that it

       would continue to exercise jurisdiction over the case. Specifically, the trial

       court explained that Father has never lived in Canada, Mother lived in Indiana,

       K.M. was conceived in Indiana, Father owns a business and real estate in

       Indiana, Mother only recently became employed in Canada, and the parties

       own real estate in Indiana. Based upon this evidence, the trial court did not

       abuse its discretion in continuing jurisdiction over K.M.’s custody.



                                    II. Appropriate Forum
[20]   Mother next argues that even if the trial court has jurisdiction, Indiana is not

       the appropriate forum. 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. Ind. Code § 31-17-3-7. A court’s decision as to whether to exercise

       jurisdiction is reviewable for an abuse of discretion. Stewart, 888 N.E.2d at 766.

       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.


       Court of Appeals of Indiana | Opinion 02A05-1407-DR-350 | May 11, 2015        Page 11 of 14
[21]      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 interest that

          another state assume jurisdiction. Id. In making that determination, the court

          may consider the following factors:

                  (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 what 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 issue in
                      the pending litigation.

       Ind. Code § 31-21-5-8(b).


[22]      Here, the trial court thoroughly reviewed each of these factors and noted that 1)

          Father has no history of domestic violence, but Mother was involved with a

          man who threatened her; 2) although K.M. has resided in Canada since her

          birth, her current domicile is a direct result of Mother’s conduct; 3) the Indiana

          trial court is three hours from Ontario, Canada; 4) Father is a longtime business


          Court of Appeals of Indiana | Opinion 02A05-1407-DR-350 | May 11, 2015              Page 12 of 14
       owner who has the resources to provide for K.M.’s needs while Mother’s

       income is more limited; 5) K.M. has no significant bonds to either jurisdiction

       because she has not yet started any school, religious, or community program

       that would provide greater evidence regarding her best interests in Canada; 6)

       Mother has obtained an ex parte order in Canada precluding Father from

       contacting her and has not complied with any of the Indiana trial court’s orders

       that were calculated to preserve Father’s rights to K.M.; 7) Mother did not

       challenge the Indiana trial court’s jurisdiction at the beginning of the case; 8)

       significant evidence about the marriage, the marital estate, and the

       circumstances of the parties’ relationship exists in Indiana; 9) ex parte orders

       have been issued against Father in Canada, but there are no such orders against

       Mother in Indiana; and 10) the present case was the first one initiated with

       regard to the marriage and custody of the child.


[23]   We further note that the two primary purposes of the UCCJA are to discourage

       forum shopping and to protect the best interests of the child. Bowles, 721

       N.E.2d at 1250. Both of these purposes would be served by the Indiana court

       continuing to exercise jurisdiction over the case. The trial court did not abuse

       its discretion in concluding that Indiana is a convenient forum for the resolution

       of this case.


[24]   Affirmed.


       Baker, J., and Riley, J., concur.




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