Chance v. Chance

• Decision Date: 05 March 1980
• Docket Number: No. 2-778A237,2-778A237
• Citation: 400 N.E.2d 1207
• Parties: Mary Jane CHANCE (Spence), Appellant, (Petitioner Below), v. Robert L. CHANCE, Appellee, (Respondent Below).
• Court: Indiana Appellate Court

Page 1207

400 N.E.2d 1207

Mary Jane CHANCE (Spence), Appellant, (Petitioner Below), v. Robert L. CHANCE, Appellee, (Respondent Below).

No. 2-778A237.

Court of Appeals of Indiana, Second District.

March 5, 1980.

Mark A. Yegerlehner, Indianapolis, for appellant.

Gregory F. Hahn, William T. Rosenbaum, Dillon, Hardamon & Cohen, Indianapolis, for appellee.

SHIELDS, Judge.

Appellant Mary Jane Chance Spence appeals the trial court's alleged modification of the visitation provision ¹ of a dissolution agreement executed by herself and her former husband, appellee Robert Chance. The dissolution agreement was approved and incorporated within a Decree of Dissolution.

Spence bases error on:

(1) The improper form of Chance's Petition for Instructions;

(2) The trial court's judgment restricting visitation;

(3) The trial court's reduction of support during Chance's summer visitation; and

(4) The trial court's bias and prejudice against her.

Spence argues numerous other errors which raise issues involving the sufficiency of the evidence to support the trial court's finding and judgment. Despite that, Spence's Appellant's Brief is devoid of any recitation of the evidence presented during the trial court proceedings as required by Ind. Rules of Procedure, Appellate Rule 8.3(A)(5). Nor is the deficiency cured by the Appellee's Brief. It, too, is devoid of any statement of facts relevant to the issues presented for review.

While this Court prefers to reach the merits of any issue when at all possible, nevertheless there are circumstances when this simply cannot be done. To so do would subvert the minimal requirements of the Appellate Rules, penalize good appellate practice and reward totally deficient appellate practice. We therefore regretfully deem waived all issues preserved and argued by Spence raising the insufficiency of the evidence to support the trial court's judgment.

I

In response to Chance's Petition for Instructions, Spence filed a Verified Motion in Opposition to Petition for Instructions. The motion attacked the petition on the grounds that the issues raised in the petition were either without merit or were ". . . before the Court in improper form." The other objection made by Spence was in open court immediately before the presentation of evidence. Then Spence, by her counsel, again objected to the form of the petition in that "it contains matters . . . which address themselves to modification . . ." and yet was not signed nor verified by Chance.

Spence argues Chance's Petition for Instructions was improper for several reasons. It

(1) was neither signed nor verified by Chance as required by Official Rules, Practice and Procedure, Circuit and Superior Courts of Marion County, Rule 20, and

(2) was vague in that it did not allege specifics as to Spence's conduct, a change of circumstances affecting the best interests of the children, nor the extent of the relief sought.

Rule 20 ² is inapplicable to Chance's petition. It only applies to petitions to modify custody. We do not construe Chance's Petition for Instructions as a petition to modify custody. Rather, it is what it purports to be a petition to clarify a decree of dissolution which merely declared the rights of Chance in regard to visitation without any express command or prohibition.

Ideally the rights and privileges accorded to parents, both as to custody and visitation, should be exercised with good judgment and discretion, with mutual forbearance, and with proper regard to the rights of each other and the best interests of the child. Under such circumstances, the mere allowance of reasonable visitation privileges to the non-custodial parents would suffice.

The flexibility allowed thereby promotes a continued spirit of cooperation between the parents and may aid the child in its right to a meaningful relationship of both mother and father. Of course, such orders do not always operate as intended.

Milligan v. Milligan, (1977) Ind.App., 365 N.E.2d 1244 (Garrard, J., concurring opinion). Once it is shown the orders do not operate as intended, history, experience, and human nature show that a trial court should amend the decree to specify the visitation rights in detail as to times, places, and circumstances. This is the course of action pursued by Chance. We understand there is an articulable point where a petition to clarify becomes so sweeping it seeks to make substantial changes in custodial rights and thereby transforms itself into a petition to modify custody.

We do not so construe this petition and hence we find no error because the Petition for Instructions was neither signed nor verified by Chance.

Only by liberally construing Spence's objections made in the court below to the petition are we able to reach her second contention. Spence urges the petition was improper because it was vague in not alleging specifics as to her conduct, the extent of the relief sought, nor a change of circumstances affecting the best interests of the children.

The petition did not seek relief by contempt. That fact, coupled with the principle that evidentiary allegations are improper within a pleading and the fact Spence deposed Chance before trial, defeats Spence's argument of vagueness. Spence was put on notice Chance was seeking specific visitation rights and would, in all likelihood, introduce evidence of his desires on visitation as well as circumstances which made the existing visitation undesirable. Paragraph 4 of the petition requested the trial court review the reasonable visitation clause in the decree and specify "visitation rights by which the parties can abide for and provide the respondent (Chance) with adequate visitation with his minor children." She was sufficiently advised as to the issues raised by the petition to adequately prepare and defend against the petition.

Also without merit is Spence's final contention that the petition is improper because it did not allege "any change of circumstances, affecting the best interests of the children."

The Dissolution of Marriage Act ³ does not specifically require a change of conditions before a trial court can modify custody, let alone specify and detail visitation. Franklin v. Franklin, (1976) Ind.App., 349 N.E.2d 210. Were we to assume the trial court modified a visitation order, rather than specifying and detailing visitation, the directive of the applicable statute is that the modification serve the best interests of the child. IC 31-1-11.5-24 (Burns Supp.1979). ⁴ While such a specific allegation is missing from Chance's petition, we would not deem its omission fatal. Inherent within the request for adequate visitation with his children is the concept that adequate companionship by a non-custodial parent with his children is inherently beneficial to those children and in their best interests. ⁵

II

Spence argues the trial court restricted the original visitation schedule by eliminating a portion of each holiday the children would spend with each parent or by eliminating New Years Day, July 4th, and Labor Day as visitation days. By so doing, Spence argues the trial court is required to find "the visitation might endanger the child's physical health or significantly impair his emotional development." Milligan v. Milligan, (1977) Ind.App., 365 N.E.2d 1244.

We are at a loss to understand Spence's standing to urge any such error. ⁶ Logic tells us Chance would be the more appropriate party to urge a restriction in visitation, if indeed it was restricted. However, we do not perceive visitation has been restricted within the meaning of IC 31-1-11.5-24(b) (Burns 1979 Supp.). The original agreement, incorporated within the Decree of Dissolution, provided Chance with reasonable visitation upon two days prior notice to Spence and with split time on various holidays, including New Years Day, July 4th, and Labor Day. The trial court has now specified the visitation to include alternate weekends from 6 p. m. on Friday until 6 p. m. on Sunday, four continuous weeks during the summer and alternated certain holidays. The visitation as now specified is neither a restriction nor an expansion of the visitation as specified in the original dissolution agreement. Rather, it is a determination of what is reasonable visitation.

III

Spence contends the trial court erred in reducing the child support by one-half during Chance's four weeks of continuous summer visitation. We agree.

The issue of reduction in child support was not raised in the Petition for Instructions. Furthermore, the issue was not tried to effect an amendment of the pleadings under Ind. Rules of Procedure, Trial Rule 15(B)...