Blue v. Brooks, 673S131

• Decision Date: 16 November 1973
• Docket Number: No. 673S131,673S131
• Citation: 261 Ind. 338,303 N.E.2d 269
• Parties: G. David BLUE, Appellant (Plaintiff Respondent below), v. Joanne E. (Blue) BROOKS, Appellee (Defendant Petitioner below).
• Court: Indiana Supreme Court

Page 269

303 N.E.2d 269

261 Ind. 338

G. David BLUE, Appellant (Plaintiff Respondent below), v. Joanne E. (Blue) BROOKS, Appellee (Defendant Petitioner below).

No. 673S131.

Supreme Court of Indiana.

Nov. 16, 1973.

Rehearing Denied Jan. 15, 1974.

Sherwood Blue, Indianapolis, John R. Berry, Crawfordsville, for appellant.

Samper & Samper, Indianapolis, for appellee.

HUNTER, Justice. ^*

This is an appeal from the partial modification of an original divorce decree. The original decree granted the appellant-father custody of two minor children. The modified decree granted custody of the minor daughter to appellee-mother and ordered that custody of the minor son remain unchanged. The appellant has properly presented four issues for our determination:

(1) Whether there existed such a change of circumstances so as to warrant a modification of the original decree;

(2) Whether the trial court erred in excluding from the record the results of its private conversations with the children;

(3) Whether out-of-court statements made to a psycholoigst were properly excluded;

(4) Whether the trial court was without jurisdiction to reverse a previous ruling upon the motion to correct errors.

The parties were divorced on January 15, 1965. Custody of the children, ages eight (8) and four (4) years, was granted to the father for 'so long as Dorothea Blue, his mother lives in his house with him and the two children.' On March 22 1972, the appellee filed her petition seeking modification of the custody decree. At the time of the filing, both parties were remarried and the grandmother no longer resided with appellant. In her petition the appellee alleged that circumstances had changed so as to warrant a modification of child custody in the best interests of the children. She specifically alleged, inter alia, that the children were unhappy in the custody of their natural father, that said unhappiness was causing harm to their mental and physical health, that the children had repeatedly expressed a desire to live with their natural mother, that the children were prohibited, as a form of punishment, from freely telephoning their natural mother, that the father's attitude is one of vindictiveness toward the natural mother, and that the emotional development of the children has been severely hampered by conditions existing in the father's home. On August 7, 1972, the appellant filed his answer denying the allegations set out above. Trial was held and on August 23, 1972, judgment was rendered as follows:

'Comes now the court and being duly advised, now sustains (appellee's) petition to modify in part, and the decree of divorce heretofore entered is now modified and custody of the minor daughter of the parties, Lorayna Blue, is now awarded to (appellee) mother. The matters of support and visitation is taken under advisement pending conference with counsel.'

Appellant contends that there was insufficient evidence before the trial court to sustain appellee's allegations that a change of conditions had occurred to warrant the custody order modification. Indeed, the burden was properly upon the appellee to allege and prove that such change of conditions did exist. Wible v. Wible (1964), 245 Ind. 235, 196 N.E.2d 571. The appellee herein carried that affirmative burden at trial. On appeal, this Court cannot weigh the evidence, but must affirm the trial court's decision if it is substantially supported by the record. Winkler v. Winkler (1969), 252 Ind. 136, 246 N.E.2d 375. As we stated in Heckman v. Heckman (1956), 235 Ind. 472, 134 N.E.2d 695:

'. . . In considering the sufficiency of the evidence to sustain the finding of the court, a fragment, part or portion of the evidence is not plucked from the whole and appraised alone, but all the evidence, together with all the permissible and reasonable inferences deductible therefrom, is surveyed to determine the ultimate facts and circumstances established thereby favorable to the decision of the trial court. A reversal of a judgment predicated upon a finding results only when there exists no competent evidence to support such finding.

'The trial court has before it, within its sight and hearing, the physical presence of the parties and oftimes their children. It hears their testimony, notes their actions and reactions, observes their sincerity, emotions, inflections and tones of voice, apparent state of health, and experiences the tenseness of the human drama enacted there within the confines of the court room. The appellate tribunal, on the other hand, has before it only the cold, written record. It sees only words, phrases, sentences, questions, answers, and exhibits. It is without the authority to weigh the evidence and determine(s) only that the requisite principles of law have been observed and duly applied, and that justice has been fairly and impartially administered.' 235 Ind. 478--479, 134 N.E.2d 698.

Considering the evidence in the light most favorable to the appellee, we find that the decision of the trial court is supported by substantial evidence of probative value. The petition for modification alleged twenty-six (26) paragraphs of circumstances calling for a change of custody. The original custody order was conditioned upon the paternal grandmother's continued residence in the natural father's home. The trial court found that such condition had not existed for quite some time before the petition for modification was filed. The evidence before the court showed that the minor daughter was in the physical company of three (3) male children, one of whom was suffering from a mental disorder. There was evidence that the daughter was at times left alone in the company of the mentally retared stepbrother her own age. At times another stepbrother was in the habit of exposing his genitals to the girl and using foul language around her.

The record discloses that the minor daughter is approaching the age of puberty and undergoing emotional as well as physical changes. The trial court found that the best interests of the child would be served by returning her to the custody of her natural mother. We will not disturb its judgment here.

The appellant contends that the trial court committed reversible error by not including in the record the results of its private conversations with the children in chambers. The appellant does not attack the procedure employed by the trial court, but asserts that the trial court based its judgment upon this extrajudicial inquiry. Indeed, both parties consented to the private interview and, therefore, cannot now challenge its outcome. Winkler v. Winkler, supra.

However, the critical issue here is whether the trial court based its judgment upon this confidential discussion with the children. A judgment based upon extra judicial inquiry cannot stand. Watkins v. Watkins (1942), 221 Ind. 293, 47 N.E.2d 606.

We inject here that in cases where child custody is in issue, and with the parties' consent, confidential interviews between the court and the children involved should be encouraged where the minors are of sufficient age and understanding. Such a procedure better enables the trial court to ascertain the best interests of the child, because the constraints of open court with both parents and witnesses present are lifted.

As to appellant's contention, we are persuaded that the better rule is that so long as the trial court's decision does not rest primarily upon the results of a private interview, it is not error to exclude the results of said interview from the record:

'Frequently these conferences are conducted with a promise by the trial judge that the information is confidential, that the child need not repeat that which has been said and the judge will not repeat that which has been said. It is vital that this confidence be observed.

'In this, one of the most difficult responsibilities of a trial judge, the judge is privileged to consider the information so secured in his final decision. The information given to the trial judge during the in chambers conference may well be the crucial and...