MEMORANDUM DECISION
                                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                                Apr 07 2016, 5:34 am

this Memorandum Decision shall not be                                                     CLERK
                                                                                      Indiana Supreme Court
regarded as precedent or cited before any                                                Court of Appeals
                                                                                           and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Bryan Lee Ciyou                                          Stephenie K. Gookins
Ciyou & Dixon, P.C.                                      Cate, Terry & Gookins, LLC
Indianapolis, Indiana                                    Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sadia Khan,                                              April 7, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         29A05-1507-DR-870
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Syed Hussain,                                            The Honorable Wayne A.
Appellee-Petitioner.                                     Sturtevant, Judge
                                                         Trial Court Cause No.
                                                         29D05-0904-DR-828



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016       Page 1 of 11
                                        Statement of the Case
[1]   Sadia Khan (“Mother”) moved to Michigan with the parties’ daughter when

      she was an infant. When their daughter was four-years-old, Syed Hussain

      (“Father”) filed a motion for a custody and parenting time evaluation, which

      the parties had agreed to in their dissolution agreement. Mother filed a motion

      to transfer jurisdiction of the case to Michigan. The trial court denied Mother’s

      motion in a detailed order. Our review of the evidence reveals the trial court

      did not abuse its discretion in denying Mother’s motion.


[2]   We affirm.


                                                      Issue
              Whether the trial court abused its discretion in denying Mother’s
              motion to transfer jurisdiction to Michigan.


                                                     Facts
[3]   Mother and Father were married in May 2007. At the time, Mother was a

      physician in Michigan, and Father was a physician in Indianapolis. When

      Mother completed her employment obligation in Michigan in September 2008,

      she moved to Indianapolis. Mother and Father’s daughter, S., was born in

      Indianapolis in December 2008. Father filed a petition for dissolution of

      marriage in the Hamilton Superior Court in April 2009. The following month,

      Mother and Father agreed that Mother would have sole physical and legal


      Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 2 of 11
      custody of S. and that Mother would return to Michigan with S. Father was

      granted parenting time in Michigan supervised by Mother during S.’s infancy.


[4]   After Mother and Father reached an agreement, they filed a twenty-page final

      settlement agreement in the Hamilton Superior Court in January 2011.

      Pursuant to the terms of the agreement, Mother and Father’s marriage was

      dissolved and Mother was awarded sole physical and legal custody of S. Father

      was granted parenting time in Michigan supervised by Mother. Mother also

      agreed to take S. to Indiana to visit Father no less than three times per year.

      Mother and Father agreed that after S. turned three years old, Meridian

      Psychological Associates in Indianapolis would perform parenting time and

      custody evaluations. In addition, Mother and Father further agreed that “any

      legal actions to enforce this Agreement shall be governed by the . . . laws of the

      State of Indiana applicable at the time of any such modification action.” (App.

      103).


[5]   Six months after Mother and Father signed the agreement, Father filed a

      motion for rule to show case wherein he alleged that Mother had been

      uncooperative in allowing him to exercise his parenting time. Specifically,

      according to Father, Mother was denying Father’s requests for parenting time

      and refusing to allow Father to make up any missed parenting time. In October

      2011, Mother and Father entered into an agreement, which allowed Father to

      make up his missed parenting time in Indianapolis.




      Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 3 of 11
[6]   In June 2013, Father filed a petition for evaluation and modification of

      parenting time wherein he pointed out that S. was over four years old. He

      requested an evaluation with Meridian Psychological Associates as set forth in

      the final settlement agreement. Father alleged that it would be in S.’s best

      interest for the father-daughter relationship to be strengthened by unsupervised

      and more regular parenting time to occur at Father’ residence rather than at a

      hotel in Michigan.


[7]   The trial court immediately ordered Mother and Father to participate in an

      evaluation with Meridian Psychological Associates. Mother filed a motion to

      stay the evaluation as well as a petition to transfer jurisdiction to Michigan. In

      her petition, Mother argued that based upon the factors set forth in section 8(b)

      of the Uniform Child Custody Jurisdiction Act (“UCCJA”), Indiana should

      decline to exercise jurisdiction and should order the matter transferred to

      Michigan.


[8]   In July 2013, the trial court denied Mother’s motion to stay, explaining that the

      “parties themselves agreed in their Settlement Agreement to utilize an

      evaluation from Meridian Psychological Associates and [Mother] has failed to

      provide a sufficient reason why this should not be done.” (App. 174).

      Thereafter, in August 2013, the trial court also denied, without a hearing,

      Mother’s petition to transfer jurisdiction. Specifically, the trial court explained

      that the parties “ha[d] done an excellent job in setting forth facts (mostly

      uncontested) and law supporting their positions so that a hearing [was]

      unnecessary.” (App. 190).

      Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 4 of 11
[9]   In September 2013, the trial court granted Mother’s motion for reconsideration

      as well as a hearing. After granting two unopposed motions to continue, the

      trial court held the hearing in March 2014, shortly after a clinical psychologist

      from Meridian Psychological Associates had completed a thirty-seven page

      detailed parenting time and custody evaluation. Neither Mother nor Father

      called witnesses at the hearing. Rather, both parties simply presented legal

      argument. Following the hearing, the trial court issued a detailed order that

      provides in relevant part as follows:

              2.   The Court has considered the factors set out in INDIANA
              CODE § 31-21-5-8(b).

              3.     The first factor is whether domestic violence has occurred
              and is likely to continue occurring in the future. While Mother
              has alleged violence in the marriage, Father has denied her
              allegations. In the absence of any evidence in the record
              corroborating Mother’s allegations, the Court finds that domestic
              violence is not a factor.

              4.      The length of time the parties’ child, [S.], has resided
              outside of Indiana. [S.] . . . has continuously resided in Saginaw,
              Michigan, for more than five years. . . . Given the child’s age,
              however, her degree of involvement in the community and her
              range of activities would not be as great as with an older child,
              and therefore, the Court finds that this is not a major factor at
              this time. Further, the parties are agreed that the long-term goal
              is the reinstitution of reasonable parenting time for Father . . .
              that would involve Father exercising parenting time in Indiana,
              and [S.] being in Indiana.

              5.     The distance between the Indiana court and the Michigan
              court. Mother asserts without contradiction that the distance is
              approximately 370 miles one way with a driving time of six and

      Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 5 of 11
        one-half hours. This is not an unreasonable travel time by itself
        and does not consider the lesser travel time for air travel, which
        both parties are financially able to afford.

        6.     The relative financial circumstances of the parties.
        Although Mother points out a financial disparity in the income
        between the parties, travel would not impose a financial hardship
        on either party, with Mother’s annual income being $190,000
        and Father’s being approximately $240,000.

        7.     An agreement of the parties as to which state should
        assume jurisdiction. While no explicit agreement exits to litigate
        issues in Indiana, the parties’ Settlement Agreement implies that
        the parties intended to resolve future issues through the Indiana
        court by relying on Indiana law. First, the parties’ Decree recites
        that “any legal actions to enforce this Agreement shall be
        governed by the applicable laws of the State of Indiana . . . [and]
        any modifications pertaining to child-related issues, shall be
        governed by the laws of the State of Indiana.” Mother lived in
        Michigan at the time she signed the Settlement Agreement and
        Dissolution Decree and could have asked to leave the application
        of law issue open or to have the laws of Michigan apply. Instead,
        the parties agreed on the application of Indiana law. This implies
        that any post-dissolution litigation would be heard by an Indiana
        court that is more readily able to interpret and apply Indiana law
        than a Michigan court.

               The parties’ agreement expressly states that Indiana law
        will govern “any modifications pertaining to child related issues,”
        and it is clear the parties considered the Indiana Parenting Time
        Guidelines in crafting their agreement. . . . Finally, the parties
        specifically agreed that any change in the parenting time would
        be preceded by a parenting time evaluation and legal custody
        evaluation by an evaluator from Meridian Psychological
        Associates located in Indianapolis, Indiana. Again, the parties
        could have named a service provider from Michigan or could
        simply have said nothing as to who would conduct the


Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 6 of 11
        evaluation. Instead, they consciously tied themselves to Indiana
        for the purpose of resolving this issue.

        8.     The nature and location of evidence . . . required to resolve
        the pending issue. [S.] herself, as a five-year-old, will likely not
        be testifying in this matter. Mother assets that [S.] is particularly
        close to a number of relatives in Michigan that [may need to be
        called as witnesses]. There has been no assertion, however, that
        traveling to Indiana would impose any undue hardship on any of
        these relatives if they are called to testify. Moreover, to the
        extent that professional witnesses are required, these can be
        accommodated by telephone . . . or video conferencing facilities
        available to the Court here in Indiana. . . .

               While a number of witnesses could be called to testify, the
        parties themselves have placed the highest priority on the custody
        evaluator. This is the only potential witness set forth in the
        parties’ Settlement Agreement. Moreover, the parties agreed that
        this evaluator would be chosen from Meridian Psychological
        Associates, showing their faith in that practice’s expertise. Dr.
        Janine Miller was selected and has completed the custody
        evaluation, and Dr. Miller resides in Indiana, making it a
        hardship to travel to Michigan to testify in person. While Dr.
        Miller could also testify electronically, given the importance the
        parties attached to the selection of a custody evaluator from
        Meridian Psychological Associates, Dr. Miller is a key witness
        who should be heard and seen in person. . . . Finally, it also
        appears that the faith that the parties put in Meridian
        Psychological Associates was well placed, as Dr. Miller has
        provided a series of recommendations that both parties seem to
        agree form a blueprint for a resolution of their dispute. This
        would eliminate the need for any immediate hearing on the
        pending issue.

        9.    The ability of each court to decide the issue expeditiously
        and procedures necessary to present the evidence. The Court has
        already indicated above that teleconferencing and
        videoconferencing facilities exist to accommodate Michigan
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 7 of 11
               witnesses, and the Court has no reason to believe that it cannot
               resolve the issues as expeditiously here in Indiana as a Michigan
               court. . . .

               10. The familiarity of the court of each state with the facts and
               issues in the pending litigation. . . . [t]he Court has acquired a
               familiarity based upon the parties’ pleadings, and most recently,
               the custody evaluation report filed by Dr. Miller. This is far
               more familiarity than the Michigan court would have at this
               point. . . .

               For the above reasons, the Court finds that it is not appropriate
               for the Michigan court to exercise jurisdiction in this case and
               that the Indiana court is not an inconvenient forum to resolve the
               issues that are pending.

       (App. 252-57).


[10]   Mother filed a motion asking the trial court to certify the jurisdictional issue for

       interlocutory appeal, which the trial court denied. In June 2015, the trial court

       issued an order that resolved all pending issues. This Court granted Mother’s

       motion to stay the June 2015 order pending her appeal of the denial of her

       motion to transfer jurisdiction to Michigan.


                                                   Decision
[11]   Mother argues that the trial court erred in denying her motion to transfer

       jurisdiction to Michigan. 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. Barwick v. Ceruti, 31 N.E.3d

       Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 8 of 11
       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.


[12]   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. at 1015. 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; and

       Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 9 of 11
               (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).


[13]   Here, the trial court thoroughly reviewed each of these factors and noted that:

       (1) domestic violence was not a factor because there was no evidence to

       corroborate Mother’s allegations; (2) S.’s five years in Michigan was not a

       major factor because her degree of involvement in the community and activities

       were not as great as with an older child; (3) Mother and Father agreed that the

       long-term plan involved S. visiting Father in Indiana; (4) distance was not a

       factor because both parties could afford to travel; (5) Mother earns $190,000 per

       year and Father earns $240,000 per year; (6) although there was no explicit

       agreement as to which state should assume jurisdiction, the settlement

       agreement implied that the parties intended to resolve future issues in an

       Indiana court; (7) the parties specifically agreed to an evaluation from a clinical

       psychologist from Meridian Psychological Associates, located in Indiana; (8) S.

       would not be testifying and any adult witnesses could be accommodated by

       telephone or video conferencing; (9) the child custody evaluation had been

       completed, and the evaluator is a key witness who should be seen and heard in

       person; (10) the Indiana court could resolve issues as expeditiously as a

       Michigan court; and (11) the Indiana court was familiar with the pleadings and

       the thirty-seven-page custody evaluation.


[14]   In light of the evidence that (1) the parties contemplated resolving future issues

       in Indiana and agreed to use a clinical psychologist in Indiana to complete the
       Court of Appeals of Indiana | Memorandum Decision 29A05-1507-DR-870 | April 7, 2016   Page 10 of 11
       custody and parenting time evaluation; (2) the trial court’s familiarity with the

       pleadings and detailed custody evaluation; and 3) the importance of the

       evaluator as a key witness being able to testify in person, we find no abuse of

       the trial court’s discretion.


[15]   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. Ceruti, 31 N.E.3d

       at 1015. Both of these purposes would be served by the Indiana Court’s

       jurisdiction over the case. The trial court did not abuse its discretion in denying

       Mother’s motion to transfer jurisdiction to Michigan.


[16]   Affirmed.


       Kirsch, J., and Riley, J., concur.




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