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Barwick v. Ceruti

Court of Appeals of Indiana

May 11, 2015

Jennifer L. Barwick, Appellant-Respondent,
v.
Joseph A. Ceruti, Appellee-Petitioner

Page 1009

Appeal from the Allen Superior Court. The Honorable Charles F. Pratt, Judge. Case No. 02D08-1306-DR-841.

ATTORNEYS FOR APPELLANT: Andrea L. Ciobanu, Alex Beeman, Ciobanu Law, P.C., Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Michael H. Michmerhuizen, Fort Wayne, Indiana; Cornelius B. Hayes, Hayes & Hayes, Fort Wayne, Indiana.

Vaidik, Chief Judge. Baker, J., and Riley, J., concur.

OPINION

Page 1010

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 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 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

Page 1011

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 bye telephone. At the hearing, Father testified that Mother had previously demanded that he pay her $100,000 if he wanted to prevent her from getting an abortion. After returning to Canada, Mother also became involved in a sexual ...


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