Burrington v. Howard, 06A01-8709-CV-232

• Citation: 521 N.E.2d 371
• Decision Date: 07 April 1988
• Docket Number: No. 06A01-8709-CV-232,06A01-8709-CV-232
• Parties: Regina V. BURRINGTON, Appellant (Respondent Below), v. Michael A. HOWARD, Appellee (Petitioner Below).
• Court: Court of Appeals of Indiana

Page 371

521 N.E.2d 371

Regina V. BURRINGTON, Appellant (Respondent Below), v. Michael A. HOWARD, Appellee (Petitioner Below).

No. 06A01-8709-CV-232.

Court of Appeals of Indiana,

First District.

April 7, 1988.

Rehearing Denied May 16, 1988.

Lawrence D. Giddings, Thomas A. Whitsitt, Giddings Whitsitt Baker & McClure, Lebanon, for appellant.

Michael J. Andreoli, Donaldson Andreoli & Truitt, Lebanon, for appellee.

ROBERTSON, Judge.

Appellant-respondent Regina Burrington (Regina) appeals from the trial court's order awarding custody of Stacy Howard to Stacy's father Michael Howard, the appellee-petitioner (Michael).

We affirm.

Michael and Regina were divorced in 1984 and agreed to joint custody of their daughter, Stacy. Regina had physical custody of Stacy, who was age six at the time of the modification. After the divorce, Michael married Jane Howard and Regina married Larry Burrington. The parties lived near one another and the joint custody arrangement worked extremely well until August of 1986, when Regina told Michael that she planned to move to Georgia with Stacy and Regina's husband who had a new job there. Her notice of intent to change residence was filed in November, 1986. At the same time, Michael filed his petition to modify the dissolution decree. The trial court granted an order prohibiting Regina from removing Stacy from Indiana until an evidentiary hearing could be held.

The evidence at the hearing included a report of Dr. Richard Lawlor, a psychologist, whose report favored continuing joint custody, but with physical custody in Regina as the "primary psychological parent." However, Dr. Lawlor qualified his recommendation by stating that should the court determine that certain factors, such as the possibility of future relocations from Georgia, are more consequential than Dr. Lawlor deemed, then his recommendation of Regina would not hold.

After hearing testimony from the parties, their spouses, and other witnesses, and without conducting an in camera interview of Stacy, the trial court issued findings of fact and conclusions of law. It awarded custody of Stacy to Michael and granted scheduled visitation to Regina.

Regina brought this appeal, raising four issues which may be consolidated and restated as:

I. Whether the trial court abused its discretion in awarding custody of Stacy to Michael;

II. Whether the trial court erred in refusing to admit Regina's exhibit A.

ISSUE I.

In a custody modification matter, the standard used by the trial court and that used by this court in review are not the same. The trial judge is entrusted with the responsibility for determining whether there has been a change in circumstances so substantial and continuing as to make the existing order unreasonable. Marshall v. Reeves (1974), 262 Ind. 107, 311 N.E.2d 807, 810; Poret v. Martin (1982), Ind., 434 N.E.2d 885, 889.

Upon an affirmative determination by the trial judge that there has been a change in conditions so substantial and continuing as to make the existing order unreasonable, our function is merely to determine whether the trial court abused its discretion. Marshall v. Reeves, supra. To constitute an abuse of discretion, the trial court's decision must be one that is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable and actual deductions to be drawn therefrom. Id. If there is any evidence, or legitimate inferences to support the finding and judgment of the trial court, this court will not intercede or interfere and exercise or use its judgment as a substitute for that of the trial court. Poret, supra at 887; Reeves, supra, 311 N.E.2d at 810.

Regina's principal contention under this issue is that the trial court modified custody because of Regina's move to Georgia although the caselaw states that a custodial parent's move out of state is not per se a substantial change in circumstances such as to make that parent's continued custody unreasonable, citing Poret v. Martin, supra; Marshall v. Reeves, supra; and Lubeznik v. Liddy (1985), Ind.App., 477 N.E.2d 947. However, Regina's argument overlooks analysis of the supreme court in Poret v. Martin, supra. In that case, the supreme court affirmed the trial court's changing of custody when the custodial parent planned an out-of-state move, thus vacating the decision of the court of appeals:

We agree with the court of appeals in concluding that a custodial parent's move out of state is not per se a substantial change in circumstances such as to make that parent's continued custody unreasonable. However, in so concluding, it appears to have considered the removal of the boys to Arizona in isolation from the relevant circumstances of their lives. Whether or not any given change is substantial must be determined in the context of the surrounding circumstances. If, in context it is likely to beget a consequential end result, it must be deemed to be substantial.

Poret, id. at 890.

In the instant case, the trial court concluded from the evidence that given Michael's "significant, frequent and obvious contribution" to Stacy's upbringing, Regina's move to Georgia constituted a substantial and continuing change...