The Indiana Court of Appeals reversed a lower court’s ruling that Illinois proceedings on child support were null because jurisdiction was never properly transferred, noting it found an ex parte proceeding that excluded the mother “extremely troubling.”
Judith Lombardi and Robert Van Deusen divorced when they lived in Clark County. Van Deusen was ordered to pay $45 a week in child support. He later moved to Illinois and the parties, following the requirements of a child support enforcement transmittal based on the Uniform Interstate Family Support Act, had jurisdiction over child support moved to DuPage County, Ill. The Clark Superior Court signed and entered an order transferring jurisdiction. The Illinois court modified Van Deusen’s obligation to $1,000 per month and established an arrearage of $5,000.
Van Deusen later asked the Clark County court to reassume jurisdiction, arguing Illinois didn’t have jurisdiction anymore because he now lived in Pennsylvania. Lombardi objected. Magistrate William Dawkins held a hearing on the motion to reassume jurisdiction, but had a 36-minute conference in his chambers with Van Deusen’s attorney and a Clark County deputy prosecutor, who supported the father’s motion. The magistrate didn’t allow Lombardi to attend and evidence was presented that was referred to at the hearing but never actually introduced into evidence.
Magistrate Dawkins cut mother’s testimony short and entered an order granting Van Deusen’s motions. He reinstated the original child support order of $45 a week.
The Court of Appeals reversed in Judith C. Lombardi v. Robert R. Van Deusen, No. 10A01-0910-CV-491, finding the magistrate erred by basing his ruling in part on the fact that Lombardi and the child have always lived in Clark County. Her place of residency is irrelevant under the UIFSA because both parties filed written consent with the Indiana court to move jurisdiction.
Indiana relinquished jurisdiction in November 2002 and Illinois properly assumed continuing, exclusive jurisdiction before modifying the child support order, the appellate court held. The Clark County court had no authority to make a retroactive modification to the order that would modify the Illinois court’s order, wrote Chief Judge John Baker. Jurisdiction hasn’t been properly re-established in Indiana, and when that occurs, the Clark County court could only issue a prospective modification.
The judges also found Lombardi’s due process rights were violated when the magistrate held a conference in his chamber’s that excluded her.
“It would be difficult to imagine a clearer example of prohibited ex parte communications, but the story does not end there. The conference lasted for thirty-six minutes – just eleven minutes shorter than the hearing itself. Evidence was discussed and documents changed hands that were never formally made part of the record – until Mother tracked down the documents herself and requested, after the fact, that they be included,” wrote Chief Judge Baker.
They reversed the trial court’s judgment and ordered that this case be re-assigned to a judicial officer other than Magistrate Dawkins.