BAILEY, Judge.
C.T. ("Father") established his paternity of L.T. ("Child") in the Marion County Circuit Court. The custodial parent ("Mother") died, and Father allowed maternal grandparents J.M. and S.M. ("Grandparents") to assume guardianship. A guardianship order was entered by the Hamilton County Superior Court, although Child did not reside there. Paternal grandparents ("Interveners") intervened and secured transfer of the matter to the Marion County Superior Court, Probate Division, where it was consolidated with Grandparents' adoption petition. In a non-evidentiary hearing, Father contended that the Hamilton County Superior Court order was void for lack of subject matter jurisdiction. The probate court granted relief from the order and summarily awarded Father physical custody of Child. We reverse and remand for a hearing on the best interests of the child.
Grandparents present two issues for review:
Child was born on October 2, 2010. On December 19, 2011, in the Paternity Division of the Marion County Circuit Court, paternity was established in Father. Mother was granted custody and Father was granted parenting time and ordered to pay child support. On October 25, 2012, Mother died.
On November 5, 2012, Grandparents filed a petition in the Hamilton County Superior Court seeking guardianship of Child. Attached to the petition was a "Waiver of Notice of Hearing and Consent to Guardianship," purportedly bearing Father's notarized signature.
On January 3, 2013, Father filed, in the Hamilton County Superior Court, his "Combined Motion to Set Aside and Dismiss Due to Lack of Subject Matter and Personal Jurisdiction." (App. 37.) Interveners filed a petition in the Marion County Circuit Court to transfer the Hamilton County guardianship proceedings to the Marion County paternity court.
Meanwhile, on February 22, 2013, Grandparents had filed a petition to adopt Child in the Marion County Superior Court, Probate Division.
On April 8, 2013, the probate court conducted a hearing at which argument was heard on the issue of whether Hamilton County Superior Court lacked subject matter jurisdiction over the guardianship proceedings. The parties were ordered to submit post-hearing briefs. On June 19, 2013, a "Motion for Relief from Judgment" was filed in Marion County. (App. 15.) On October 8, 2013, the probate court issued its "Order Granting Motion to Dismiss
(App. 23.) The order was stayed pending the resolution of Grandparents' appeal.
Indiana Trial Rule 60(B)(6) provides: "On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons: ... The judgment is void[.]" In the probate court, Father contended that the order vesting guardianship in Grandparents was void for lack of subject matter jurisdiction; the probate court agreed.
Normally, this Court employs an abuse of discretion standard in reviewing a trial court's ruling on a motion to set aside a judgment. Rice v. Com'r, Indiana Dept. of Envtl. Mgmt., 782 N.E.2d 1000, 1003 (Ind.Ct.App.2003). However, when a motion for relief from judgment is made pursuant to Trial Rule 60(B)(6), alleging that the judgment is void, discretion on the part of the trial court is not employed because either the judgment is void or it is valid. Id. An order is void where the trial court lacks the authority to act. Kitchen v. Kitchen, 953 N.E.2d 646, 651 (Ind.Ct. App.2011).
To render a valid judgment, a court must have both subject matter jurisdiction and personal jurisdiction. Buckalew v. Buckalew, 754 N.E.2d 896, 898 (Ind. 2001). These are the only types of jurisdiction. K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006). Subject matter jurisdiction is the power of a court to hear and decide the general class of actions to which a particular case belongs. Id. When a court lacks subject matter jurisdiction, its actions are void ab initio and have no effect whatsoever. Allen v. Proksch, 832 N.E.2d 1080, 1095 (Ind.Ct.App.2005).
An Indiana court obtains subject matter jurisdiction only through the Constitution or a statute. State v. Sproles, 672 N.E.2d 1353, 1356 (Ind.1996). Subject matter jurisdiction cannot be waived or conferred by agreement and can be raised at any time. Santiago v. Kilmer, 605 N.E.2d 237, 240 (Ind.Ct.App.1992), trans. denied.
Indiana Code section 29-3-2-1(b)(1) provides in pertinent part: "Except as provided in subsections (c) through (e), the [probate] court has exclusive original jurisdiction with respect to an individual who is not an adult ... over all matters concerning the following: Guardians." Subsection (c)(1), setting forth one such exception, provides: "A juvenile court has exclusive original jurisdiction over matters relating to the following: Minors described in IC 31-30-1-1." Indiana Code section 31-30-1-1(1)(3) provides: "A juvenile court has exclusive original jurisdiction ... in ...
Proper venue in guardianship actions is established by Indiana Code section 29-3-2-2, which provides that the proper or preferred venue for appointment of a guardian of a minor is the county where the minor resides. It is stipulated that Child is not a Hamilton County resident. As such, while the Hamilton County Court, Probate Division has statutory authority to hear and decide guardianship actions, this is not to say that the initial invocation of the court's jurisdiction was proper. Rather, because venue was properly in Marion County, the action should have been filed there. Moreover, even where there are alternate venues for determining child custody, concurrent jurisdiction is not an option.
Exclusivity in a custody dispute was addressed by a panel of this Court in In re Paternity of Fox, 514 N.E.2d 638 (Ind.Ct. App.1987), trans. denied. A father had filed a paternity action in Bartholomew County and shortly thereafter, the minor's relatives (with whom he resided) filed a guardianship petition in their county of residence, Lawrence. Id. at 63940. On appeal from an award of custody of the minor to his father, we explained the concept of exclusive exercise of jurisdiction:
Id. at 641.
Had the subject of Child's custody been first properly brought before the Marion County juvenile court for litigation, the Hamilton County probate court would have been precluded from making a custody determination regarding the same child, even if Child was a Hamilton County resident. See In re Marriage of Huss, 888 N.E.2d 1238, 1241 (Ind.2008). Child's best interests would have been a matter for consideration by the Marion County juvenile court.
In other words, the instant controversy distills to the consequences of improper venue. The filing of a case in a county in which venue does not properly reside does not divest the trial court of subject matter jurisdiction. State ex rel. Knowles v. Elkhart Circuit Court, 256 Ind. 256, 258, 268 N.E.2d 79, 80 (1971). Indiana Code section 29-3-2-2(c) directs that a guardianship proceeding that was commenced in the wrong county may be transferred by the court in which the matter was filed to another court in Indiana. Upon transfer, the receiving court shall complete the proceeding as if it were originally commenced in that court. Id. (emphasis added.)
The Hamilton County Superior Court, Probate Division did not lack subject matter jurisdiction to conduct guardianship proceedings. When the court was informed of its lack of proper venue and the Marion County paternity proceedings, the matter was transferred. Upon consolidation in the Marion County Superior Court, Probate Division, it was then incumbent upon the probate court to complete the proceeding. The probate court erred in granting relief from the guardianship order on grounds that the order was void for lack of subject matter jurisdiction.
Grandparents also contend that the probate court erred in summarily ordering that physical custody of Child be given to Father. According to Grandparents, the probate court is required to consider Child's best interests and they were afforded no opportunity to present evidence in this regard.
Grandparents maintain that a change of child custody can be ordered only upon a showing that modification is in the best interests of the child and there is a change in a factor that the court may consider. They direct our attention to In re The Matter of the Paternity of K.I., 903 N.E.2d 453, 457 (Ind.2009), wherein a "central issue" was "what standard a trial court should apply when ruling on a parent's petition to modify custody of a child who is already in the custody of a third party." The Court recognized that modification of child custody is to occur only when a party
Importantly, the K.I. Court did not summarily dispense with the necessity of inquiry into the child's best interests in a custody dispute between a parent and non-parent, but rather recognized that the trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. The natural parent must meet a minimal burden of showing a change in a permissible custodial factor, but then the third party must prove by clear and convincing evidence that the child's best interests are substantially and significantly served by placement with another person. Id. at 460-61. "If the third party carries this burden, then custody of the child remains in the third party. Otherwise, custody must be modified in favor of the child's natural parent." Id. at 461.
Father does not directly address K.I., but argues that a hearing is unnecessary because he is automatically entitled to custody of his child upon the death of the other natural parent.
The interpretation of a statute is a question of law which we review de novo. Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct.App.2008), trans. denied. The best evidence of legislative intent is the language of the statute, giving all words their plain and ordinary meaning unless otherwise indicated by the statute. Chambliss v. State, 746 N.E.2d 73, 77 (Ind.2001). We will presume that the legislature intended the language used in the statute to be applied logically and to avoid an unjust or absurd result. Nash, 881 N.E.2d at 1063. Here, we will give effect both to the language providing for custody and the language providing for exceptions. We are not persuaded that the statute under consideration confers upon Father an absolute right to physical custody regardless of a prior order of court.
Father also directs our attention to language of the concurring opinion in In re Paternity of J.A.C., 734 N.E.2d 1057 (Ind. Ct.App.2000), for the proposition that custody should be immediately returned to the surviving parent when paternity has already been established prior to the death of the custodial parent. The J.A.C. case involved a visitation dispute after a mother's death. A few days before the custodial mother's death, she had, with the father's consent, secured appointment of her sister as her infant's guardian. Id. at 1058. After a bench trial, the father was awarded custody and the maternal aunt was awarded visitation. Id. The father appealed and a panel of this Court reversed
Judge Robb concurred in the result, observing: "Because Colter is J.C.'s father, J.C. should have been immediately turned over to Colter when Barkdull died. As such, the previous decision of the probate court to appoint Koenig temporary guardian was also in error." Id. at 1060-61. A statement unnecessary in the determination of the issues presented (there, the review of a visitation order) is obiter dictum, not binding, and not law. Henley v. State, 881 N.E.2d 639, 648 (Ind.2008). We also observe that, nonetheless, the trial court did not dispense with inquiry into the best interests of the child after the father had signed a consent to guardianship; rather, a bench trial was conducted. J.A.C., 734 N.E.2d at 1058.
Ultimately, however, we need not decide whether, upon death of one parent, the surviving parent is entitled to automatic extinguishment of an existing guardianship. Those are not the circumstances of this case. Here, Father relinquished a right to custody of Child immediately upon Mother's death. For reasons not yet developed in a best interests hearing, Father signed — subsequent to Mother's death — a consent to guardianship of Child.
Reversed and remanded with instructions to conduct a hearing on the best interests of the child.
KIRSCH, J., and BROWN, J., concur.
