Elbert v. Elbert

Decision Date30 September 1991
Docket NumberNo. 31A04-8910-CV-444,31A04-8910-CV-444
Citation579 N.E.2d 102
PartiesMildred ELBERT, (Now Middy True), Appellant, v. Stephen ELBERT, Appellee.
CourtIndiana Appellate Court

John R. Garry, Jr., New Albany, for appellant.

Richard R. Fox, Fox & Cotner, New Albany, for appellee.

MILLER, Judge.

Mother Middy True appeals the denial of her petition to gain custody of her son, Jason (eight years old at the time of the hearing), from father Stephen Elbert with whom the child had lived for seven years since the divorce. She claims the trial court abused its discretion when it refused to change custody and improperly relied on religious factors to deny her custody. She also claims the court abused its discretion in ordering her to pay child support and to be responsible for all costs of transportation for her visitations with Jason.

Stephen requests appellate attorney's fees, claiming that Middy is pursuing this appeal for purposes of harassment, and that while this case was pending on appeal--and the trial court was allegedly without jurisdiction to take any action--she obtained an ex-parte order from the trial court relieving her of the responsibility and expenses of transportation for the child.

At the outset, we want to make clear that we are affirming the trial court's decision to deny a change of custody because Middy failed to present evidence there had been a substantial and continuing change in the custodial home which was detrimental to Jason in any way. However, there is merit in Middy's claim that the trial judge overstepped his authority 1) in interrogating Middy and her husband in regard to their church attendance and, 2) in his order, by expressing his religious requirements for a custodial parent. Had Middy presented substantial evidence on her behalf sufficient to permit the judge to exercise his discretion to change custody--which she did not do--we might have been faced with a judgment that was tainted, requiring a new trial. We also find that Stephen waived the issue of appellate attorney's fees--on the basis of harassment--by his failure to supplement the record in accordance with our appellate rules.


Middy and Stephen Elbert were married on August 21, 1976, and divorced on July 23, 1980. The custody of their one year-old son, Jason, was awarded to Stephen pursuant to a settlement agreement. In May, 1984, Middy filed a petition to modify the decree to obtain custody or expanded visitation rights. Her request for custody was denied, but visitation rights were expanded. In September 1986, she married Vance True, a chiropractor in Danville, Kentucky.

After the divorce, Stephen continued to reside in Corydon, Indiana, where he had lived all of his life. Corydon is approximately 110 miles from Danville. At the time of the hearing, he lived in an older home in Corydon which he had remodeled. The house is four houses away from the home of his parents. Jason has a good relationship and enjoys many activities with Stephen's parents. The Corydon home has an acre of play area including a baseball diamond and a basketball goal and Jason has lots of friends in the neighborhood. Middy has relatives in the area who on occasion pick up Jason for visits.

Since the divorce, Stephen, who had always worked in construction, started his own business and remarried. Jason has a good relationship with Stephen's wife, Rhonda. Rhonda has a daughter (11 years old at time of hearing) from a former marriage and Rhonda and Steven had a baby, Shane (age four at the time of the hearing). Jason shared a bedroom with Shane; however, Stephen planned to build a new house with a separate room for each child.

Middy filed a petition to modify on June 26, 1989, based on a change in "her circumstances" which "would allow her to provide a more stable and secure home for Jason: emotionally, physically, and financially." Appellant's Brief, p. 6. A trial was held on August 24, 1989, on her petition and on Stephen's counter-petition requesting support. The court found there was "no reason to change custody." (R. 41). However, the court modified the support order by requiring Middy to begin paying twenty-five dollars per week support for Jason and modified her visitation rights (because of the distance she lives from Jason) by expanding her visitation periods and requiring her to be responsible for the transportation of Jason for visitations. However, the order included a contingency provision that "if [Middy] shall become pregnant, she is allowed to file an ex-parte motion and obtain an order requiring [Stephen] to be responsible for said transportation if her doctor determines that she cannot drive for long distances". 1 (R. 42).

I. Did the trial court abuse its discretion in denying custody modification?

Middy recognizes that in an appeal from a refusal to modify custody, this court will only reverse where the trial court's decision is clearly against the logic and effect of the facts and circumstances. The noncustodial parent bears the burden of a "strict showing" that the present custody arrangement is unreasonable. Moutaw v. Moutaw (1981), Ind.App., 420 N.E.2d 1294; IC 31-1-11.5-22(d). On appeal, she claims the court's decision was clearly against the logic of the evidence presented in that:

1) both parents wanted Jason, but that Jason wanted to live with his mother. The court stated that he had talked with Jason and that he wanted to live with his mother.

2) She had not been kept informed of Jason's life and well-being and that she had been deprived of an opportunity to develop a parental relationship with her son.

3) Steven interferes with her relationship with Jason and attempts to discredit her in front of him.

4) She has more time to spend with Jason, has a nice home, and was at the time of the hearing in the process of "building an even nicer one" adjacent to a golf course, with a pool and tennis courts.

5) Her husband is financially secure and she would not ask for any support if she were granted custody.

The trial court is vested with broad discretion in custody determinations. While there may have been changes in Jason's life since the original custody order was entered, these changes do not automatically justify a change in custody. Walker v. Chatfield (1990), Ind.App., 553 N.E.2d 490. At the initial custody determination, the trial court presumes that both parents are equally entitled to custody, but determines which parent would be the better choice. Id. In a subsequent petition to modify custody, the noncustodial parent bears the burden of overcoming the custodial parent's right to continued custody. Id. Continuity in custody is a key element in determining what is in the best interests of a child, Dunlap v. Dunlap (1985), Ind.App., 475 N.E.2d 723, and, only a strict showing that the present arrangement is unreasonable will justify a change in custody because of the potentially disruptive influence upon the child. Walker, supra; Gerber v. Gerber (1985), Ind.App., 476 N.E.2d 531. As an appellate court, we do not weigh evidence nor judge credibility of witnesses, Barnett v. Barnett (1983), Ind.App., 447 N.E.2d 1172, and, in determining whether the trial court abused its discretion, we consider only the evidence which supports the trial court's decision. Smith v. Dawson (1982), Ind.App., 431 N.E.2d 850.

Middy, as the petitioning party, had the burden of proving that material changes of a significant, decisive, and on-going nature warranted a change of custody. In her petition to modify, she claimed:

1) She married a chiropractor and moved to Danville, Kentucky, over two hours away, making visitation difficult;

2) Stephen and his wife work, requiring day care for Jason, but she does not work and can care for Jason full-time;

3) Stephen acts in bad faith in regard to her visitation;

4) Jason must share a bedroom with his four-year old step-brother whereas she can provide him with a room of his own;

5) Jason's grades have fallen.

With regard to Middy's first claim, our courts have held that a move by the noncustodial parent which makes visitation inconvenient is not sufficient to warrant a change in custody. Moutaw, supra, citing Partridge v. Partridge (1971), 257 Ind. 81, 272 N.E.2d 448.

The record indicates Stephen works long hours in his business; however, there was no evidence that Jason has been affected in a detrimental way. Stephen admitted that he did not have as much time to spend with Jason as he would like due to the demands of his business--on the other hand, Stephen had managed to coach Jason's soccer and baseball teams (quality minutes). Before the hearing, Stephen's wife quit her job to work full-time at home handling the bookkeeping and other matters for Stephen's business, which means that she will be at home to care for the children. The record also reflects that Jason's grades did fall during the fourth grade, but the principal at Jason's school testified that this was a common occurrence because the teachers imposed a stricter grading system beginning in the fourth grade. The principal also testified that Jason was a well-adjusted, outgoing, happy child. Stephen testified that it is difficult to raise three children from different marriages, but that he and Rhonda try to treat each child equally and that both he and Rhonda have a close relationship with Jason. Stephen also testified that he felt Jason would like to live with his mother because of the "things" which Middy can provide--a bedroom with his own telephone and television which he doesn't have to share with another child. Although the testimony indicates that there have been occasional breakdowns in communication regarding visitation, there is no evidence to support Middy's allegation that Stephen deliberately interferes with her visitation rights. In fact, Stephen had encouraged the development of Jason's relationship with his mother by permitting Middy additional periods of visitation not...

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