Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: DANIEL D. BROWN Danville, Illinois

ATTORNEY FOR APPELLEE: JASON A. CHILDERS Hulse Lacey Hardacre Austin Sims & Childers, P.C. Anderson, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN RE THE GUARDIANSHIP OF S.M. and N.M. ) ) S.M., ) ) Appellant, ) ) vs. ) ) S.G., ) ) Appellee. )

Dec 31 2009, 9:55 am

CLERK

No. 48A02-0904-CV-337

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Judge The Honorable George Pancol, Master Commissioner Cause No. 48D03-0811-GU-90

December 31, 2009

OPINION - FOR PUBLICATION

BAILEY, Judge

Case Summary S.M. ("Father"), an Illinois resident, appeals the trial courts order appointing S.G. ("Aunt"), an Indiana resident, as the permanent guardian of S.M., age ten, and N.M., age eight ("Boys"). We reverse and remand with instructions. Issue Whether the trial court had subject matter jurisdiction.1 Facts and Procedural History Father and T.B. ("Mother") were married and were the Boys parents. In 2002, a trial court in Vermilion County, Illinois ("Illinois court") dissolved their marriage and granted custody of the Boys to Father. In 2007, the Illinois court modified its order by transferring custody to Mother, who resided in Indiana. As Mother worked in the evenings, the Boys spent much of their time with Aunt. The Boys moved into Aunts home when Mother began to struggle with cancer. Mother died on November 1, 2008. Two days later, Aunt filed an emergency petition for temporary guardianship of the Boys in the Madison Superior Court ("trial court"). The Chronological Case Summary indicated that the emergency petition was approved that day. The record on appeal does not include the trial courts emergency order. During an evidentiary hearing in January 2009, the following exchange occurred between Father and the trial court:

1

As the dispositive issue is subject matter jurisdiction, we do not address Fathers other argument.

2

Father: Our divorce was handled in Vermilion County [Illinois]. All of our proceedings with the children have been handled in Vermilion County. It has, I mean the Vermilion County Court has always handled everything with the children. Court: Father: So youre seeking this through the Illinois courts? Yes sir. I havent . . .

Court: Thats a separate matter and you can proceed with that. If youre successful, thats something else. Theyll have to respond to it. This is a matter now of my determining whats to the best interest of your two sons. And let me say the thing that bothers me in a temporary guardianship hearing. You keep hearing the matter of should that temporary guardianship be made permanent. That sounds like permanent means youre out. Thats not the case at all. If at any time during the guardianship, the guardianship is just to protect the children, take care of them, get them to school. Shes shown that shes had them and shes been doing that. But in the interim youre going to be given that opportunity to go to your court in Illinois and if they ah, determine jurisdiction there thats something else. But, Im not going to interfere with that. I have nothing to do with that. So the purpose of this hearing today is to determine whats best for your sons until thats done. Transcript at 27-28. The trial court appointed Aunt as the Boys permanent guardian and granted parenting time to Father, who continues to reside in Illinois. The trial court subsequently denied Fathers motion to correct error. Father now appeals. Discussion and Decision I. Standard of Review If the facts are not in dispute, then the question of subject matter jurisdiction is purely one of law, to be reviewed de novo. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001); and Novatny v. Novatny, 872 N.E.2d 673, 679 (Ind. Ct. App. 2007). A claim that the tribunal lacked subject matter jurisdiction cannot be waived. Ind. Dept of Envtl. Mgmt. v. 3

Raybestos Products Co., 897 N.E.2d 469, 474 (Ind. 2008) (citing Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1223 n.8 (Ind. 2000)), technical error granted on rehg, cert. denied. "When a court lacks jurisdiction of the subject matter, its actions are void ab initio and have no effect whatsoever." Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000). II. Analysis The parties agree that, as the courts of two states are involved in the matter, a critical determination is whether the trial court had jurisdiction under the UCCJL

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