Dwyer v. Wynkoop

• Decision Date: 21 August 1997
• Docket Number: No. 49A05-9703-CV-101,49A05-9703-CV-101
• Citation: 684 N.E.2d 245
• Parties: Kimberly (Wynkoop) DWYER, Appellant-Respondent, v. Troy D. WYNKOOP, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 245

684 N.E.2d 245

Kimberly (Wynkoop) DWYER, Appellant-Respondent, v. Troy D. WYNKOOP, Appellee-Petitioner.

No. 49A05-9703-CV-101.

Court of Appeals of Indiana.

Aug. 21, 1997.

Transfer Denied Dec. 4, 1997.

Denise F. Hayden, Indianapolis, for Appellant-Respondent.

Richard M. Mantel, Indianapolis, for Appellee-Petitioner.

OPINION

SHARPNACK, Chief Judge.

Kimberly Winkoop Dwyer appeals the judgment of the trial court modifying custody of her minor child in favor of the child's father, Troy Winkoop. The sole issue raised for our review is whether the trial court erroneously modified the existing custody order. We affirm.

The facts most favorable to the judgment follow. On March 16, 1994, Troy and Kimberly dissolved their marriage. They waived a final dissolution hearing and the summary dissolution decree incorporated an agreement between them stipulating that physical custody of the couple's minor child, S.W., would be with Kimberly.

On or about September 10, 1995, Kimberly telephoned Troy's wife, Christy. Kimberly requested that Christy pick up S.W. at Kimberly's residence. Upon arriving at Kimberly's home, Christy learned that Kimberly had attempted to commit suicide by overdosing on prescription medication after a dispute with her boyfriend. Kimberly was crying and stated that she "couldn't handle it anymore." Record, p. 434. On September 12, 1995, Troy filed a Combined Verified Emergency Petition for Ex Parte Custody Determination, Psychiatric and/or Psychological Evaluation and Restraining Order which alleged that Kimberly had attempted suicide on September 10, 1995. Because Troy did not return S.W. to Kimberly immediately following this incident, Kimberly filed a Verified Petition for Immediate Return of Minor Child on September 12, 1995.

On September 13, 1995, Troy was granted temporary emergency custody of S.W. pending a hearing on the matter of custody. Following this hearing on October 2, 1995, the trial court ordered Kimberly to seek counseling and held that S.W. would be returned to her custody provided that Kimberly comply with the order. Thereafter, three evidentiary hearings were conducted between August and November of 1996 on the matter of custody. On December 9, 1996, the trial court ordered a modification of custody granting sole legal and physical custody to Troy. The trial court issued findings of fact and conclusions thereon in part as follows:

"(9) Since March 16, 1994 Kimberly has neglected [S.W.'s] dental hygiene, resulting in numerous cavities, which have been treated by Dr. Annette T. Farthing, a specialist in children's dentistry.

(10) Kimberly suffers from a mixed personality disorder which in the past has been characterized by relationship difficulties, depression, hysteria, irritability, hostility, and angry outbursts. These are traits which are likely to reoccur.

(11) Kimberly's psychological condition existed on and before March 16, 1994 [the date of original dissolution decree] and there is no evidence that it has exacerbated since the dissolution of her marriage to Troy.

(12) The Court does not find that there has been a substantial change in Kimberly's mental health.

(13) The Court does, however, find that there has been a substantial change in a relevant factor to the issue of [S.W.'s] custody. That is the fact that Kimberly's mental health was not submitted to the Court as an issue in the summary proceedings by which the parties' marriage was dissolved, and the substantial change lies in the fact that the issue of Kimberly's mental health is now submitted to the Court for the first time.

(14) This Court would be remiss in it's [sic] duty to [S.W.] if it continued to submit the child to the custody and care of a Kimberly who suffers, albeit without fault of her own, from a personality disorder likely to result in emotional harm to the child.

(15) It is in [S.W.'s] best interests that her custody be changed from her mother to her father."

Record, pp. 285-286 (original emphasis)(citations omitted). Kimberly now appeals this modification of custody.

The sole issue raised for our review is whether the trial court erroneously modified the existing custody order. The standard for modification of an existing custody arrangement is found in Ind.Code § 31-1-11.5-22 which provides in part:

"(d) The court may not modify a child custody order unless:

(1) It is in the best interests of the child; and

(2) There is a substantial change in one (1) or more of the factors which the court may consider under section 21(a) [IC 31-1-11.5-21(a) ] of this chapter.

(e) In making its determination, the court shall consider the factors listed under section 21(a) of this chapter.

(f) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described under section 21(a) of this chapter."

The factors to be considered set forth in I.C. § 31-1-11.5-21(a) include:

"(1) the age and sex of the child;

(2) the wishes of the child's parent or parents;

(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;

(4) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

(5) the child's adjustment to his home, school, and community;

(6) the mental and physical health of all individuals involved; and

(7) evidence of a pattern of domestic violence by either parent."

Kimberly contends that under the statute the trial court, before modifying custody, was required to find a substantial change in her mental health between the time of the original dissolution decree and the time of the petition for modification. She therefore concludes that because the trial court found that her psychological problems had not worsened during that time period, that the statutory requirement for a "substantial change in one (1) or more of the factors" was not met. I.C. § 31-1-11.5-22(d)(2)

However, the current version of this statute reflects an amendment that became effective in July 1, 1994. ¹ Unlike previous versions of the statute, the current version no longer requires a change in circumstances, but rather a change in "one or more of the factors which the court may consider." I.C. § 31-1-11.5-22(d)(2) (emphasis added). In Joe v. Lebow, we reviewed this change in detail:

"Upon reading the revised statutes, however, it is clear that the legislature has deleted or modified certain language which embodied the strict standard. Most notably, the statutory language requiring that the changed circumstances 'make the existing custody order unreasonable' has been deleted. Further, the requirement that there be substantial and continuing changes in the 'circumstances' has been modified, so that the court need now find only a 'substantial change' in one or more of the factors which the court considers in determining the child's best interests. When a statute contains language which is deleted by the legislature, we presume that the legislature intended the deletion to represent a change in the law.... We find from these rules strong support for [the] argument that the legislature 'deliberately lessened the [strict] standard' for modification."

Joe v. Lebow, 670 N.E.2d 9, 19 (Ind.Ct.App.1996)(original emphasis)(citations omitted). Thus, the first part of the statutory test which required a substantial change in circumstances now requires only a substantial change in one of the statutory factors. I.C. § 31-1-11.5-22(d)(2) After this part of the test is satisfied, the trial court must still make a determination of whether a modification would be in the best interests of the child. I.C. § 31-1-11.5-22(d)(1).

Here, the trial court found that because it had no knowledge of Kimberly's psychological problems at the time it approved the original decree, such new information constituted "a substantial change in a relevant factor " used to determine custody. Record, p. 286 (original emphasis). The trial court also noted that it "would be remiss in it's [sic] duty to [S.W.] to submit the child to custody and care of a Kimberly who suffers ... from a personality disorder likely to result in emotional harm to the child." Record, p. 286.

However, Kimberly interprets the statute to mean that such new information would not constitute a change in a statutory factor. Interpreting the statute in this way would mean that when a serious circumstance, currently jeopardizing the welfare of the child, comes to the attention of the court for the first time upon a petition for modification, a trial court must ignore such circumstance solely because it finds that the current circumstance also existed to the same degree prior to the original decree. Such a conclusion would be contrary to the policies underlying the law of custody modification. The focus of judicial custody decisions must be the best interests of the child. Winderlich v. Mace, 616 N.E.2d 1057, 1059 (Ind.Ct.App.1993), reh'g denied. "In a modification hearing, the trial judge must consider the evidence with the best interests of the child or children as the paramount concern." Id. We find that the trial court's interpretation of the statute better supports the well established policy of focusing on the welfare of the child.

In recognizing this strong policy, however, we emphasize that maintaining stability in a child's life is still a significant component of a best interests determination. Wallin v. Wallin, 668 N.E.2d 259, 262 (Ind.Ct.App.1996)(holding that continuity of custody remains the key in determining the best interests of the child.). The importance of stability was the underlying policy of the traditionally strict "changed circumstances" rule. "The animating principle behind these relatively 'bright-line' rules ... was that...