Eyler v. Eyler

• Decision Date: 26 November 1985
• Docket Number: No. 1-385A74,1-385A74
• Citation: 485 N.E.2d 657
• Parties: In re the Marriage of Candace K. EYLER, Appellant (Petitioner Below), v. Gary EYLER, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 657

485 N.E.2d 657

In re the Marriage of Candace K. EYLER, Appellant (Petitioner Below), v. Gary EYLER, Appellee (Respondent Below).

No. 1-385A74.

Court of Appeals of Indiana,

First District.

Nov. 26, 1985.

Peter G. Tamulonis, Kightlinger, Young, Gray & DeTrude, Indianapolis, for appellant (petitioner below).

Gregory F. Hahn, William T. Rosenbaum, Dillon & Cohen, Indianapolis, for appellee (respondent below).

ROBERTSON, Judge.

Petitioner-appellant Candace Eyler (Candace) appeals from the decree of the Boone Circuit Court dissolving her marriage with respondent-appellee Gary Eyler (Gary), dividing their property and determining custody of their two children.

We affirm.

Candace and Gary were married on December 4, 1971. Two children were born of the marriage. On June 15, 1983, Candace petitioned for dissolution of the marriage. The trial court entered its decree of dissolution, which Candace now challenges on five grounds:

1) Whether the award of custody to Gary was erroneous;

2) Whether the trial court improperly relied upon a custody evaluation conducted by Tri-County Mental Health Center;

3) Whether the division of personal property constituted reversible error 4) Whether the trial court erroneously applied a minority discount in its valuation of stock in Gary's business;

5) Whether the trial judge should have disqualified himself.

ISSUE ONE:

The trial court granted to Gary and Candace joint custody of the children, with Gary having primary custody. Candace asserts that the custody award was erroneous, because it was contingent upon a change in circumstances. To support her assertion, Candace emphasizes that the original language of Finding of Fact No. 25 was conditional:

25. That pursuant to testimony given before the court, Mr. Eyler is going to marry Peggy Patterson. Mary Smith, an employee of the Husband, who works on a daily basis in the Husband's home has a close and daily relationship with the children. The Court's Order awarding the Husband physical custody of the children is contingent upon Miss Patterson becoming more knowledgeable about child rearing through attending parenting classes, literature and continued involvement in the children's activities. The Order is also contingent upon the fact that Mary Smith, or someone who is of the same demeanor and temperament as Mrs. Smith be employed by Mr. Eyler so that individual can provide the children the needed necessary [sic] discipline and structure. In addition, the Court also instructs Mr. Eyler to be more accessible to the children by working closer to home.

Both Gary and Candace filed motions to correct error which challenged the language of Finding of Fact Number 25. The trial court ruled on the motions to correct error:

20. Both the Petitioner and the Respondent have contended that this Finding of Fact is erroneous or ambiguous and the Court finds that portions of this Finding will lead to further controversy if not amended.

21. The Court did not intend for the award of joint custody with primary custody to Husband to be contingent and the usage of that word in Finding of Fact 25 was unintentional and mistaken.

22. The Court hereby corrects, clarifies and amends Finding of Fact 25 as follows:

"25. That pursuant to testimony given before the court, Mr. Eyler is going to marry Peggy Patterson. Mary Smith, an employee of the Husband, who works on a daily basis in the Husband's home, has a close and daily relationship with the children."

The trial court explained that the award of primary custody to Gary was not contingent upon a change in present circumstances. In its discretion, the trial court may grant custody to either parent, or deny it to both, according to their fitness and ability at the time of the decision. Stone v. Stone, (1902) 158 Ind. 628, 64 N.E. 86. Amended Finding of Fact Number 25 manifests no error in the award of custody.

Candace argues that even if the custody award was not contingent upon a change in circumstances, it constituted an abuse of discretion. To constitute an abuse of discretion, the court's decision must be one which is clearly against logic and effect of the facts and circumstances before the court. The reviewing court must determine whether the evidence adduced at trial can serve as a rational basis for the court's decision. However, the court of appeals will neither reweigh the evidence nor assess the credibility of witnesses. In re Marriage of Julien, (1979) Ind.App., 397 N.E.2d 651, 653.

In making the determination of custody, the trial court in the instant case had a substantial amount of contradictory evidence before it. Although the evidence might have supported a conclusion different from the one reached by the court, we will not substitute our judgment for that of the trial court. See id. Candace has failed to show a manifest abuse of discretion warranting reversal of the trial court's decision.

ISSUE TWO:

Candace contends that undue credence was given to the custody evaluation report prepared by Tri-County Mental Health Center, because the trial judge served on the Board of Directors of Tri-County. On August 1, 1984, Tri-County was appointed to conduct an evaluation pursuant to IND.CODE Sec. 31-1-11.5-22(a) (1982). Candace did not object to the appointment of Tri-County at that time or later when the report was introduced into evidence. Candace failed to preserve the alleged error. See Winkler v. Winkler, (1969) 252 Ind. 136, 246 N.E.2d 375.

In the alternative, Candace maintains that the trial court should have granted her motion to strike the custody evaluation report. The motion to strike alleged that Tri-County had exceeded the bounds of the court order by interviewing Gary's housekeeper and that Tri-County had prejudiced Candace by including the testimony of that hostile witness in its report. The trial court properly denied the motion to strike.

IND.CODE Sec. 31-1-11.5-22 (1982) permits the court to order an investigation and report concerning custodial arrangements for the children of a dissolved marriage. The statute authorizes the investigator to consult any person who may have information about the children and their potential custodial arrangements. Tri-County did not exceed its authority by interviewing Gary's housekeeper. The housekeeper took care of the children during the term of her employment, and she had been retained by Gary in the event he was granted primary custody. Thus, the housekeeper had information concerning the children and their potential custodial arrangements.

Including the testimony of the housekeeper in the evaluation report was not erroneous. Tri-County's report was a compilation of information gathered during its investigation, and the housekeeper was a person properly consulted by Tri-County. Although the housekeeper's testimony reflected unfavorably on Candace, the inclusion of such testimony did not constitute a basis for striking the custody evaluation report.

ISSUE THREE:

In its distribution of personal property, the trial court referred to an appraisal of the parties' assets introduced into evidence by Gary. The trial court awarded to Gary the items marked by yellow pen and to Candace the remaining items. When ruling on the parties' motions to correct error, the trial court stated that it had reversed the intended distribution of assets. The amended distribution gave to Candace the items marked by yellow pen and to Gary the remaining items.

On appeal, Candace maintains that the exchange of personal property awarded to each party constituted an abuse of discretion. Yet a close examination of the trial court's original distribution reveals such incongruities as an award of Candace's golf clubs to Gary and Gary's golf clubs to Candace. By amending the distribution of assets, the trial court effected a property division consistent with the logic and effect of the evidence before the court. We find no abuse of discretion. See In re Marriage of Hirsch, (1979) 179 Ind.App. 166, 385 N.E.2d 193.

Additionally, Candace notes that the trial court changed the specific items of personal property being awarded to each party without adjusting the dollar values originally assigned to each party's respective share of personal property. According to Candace, reversible error is manifest.

Contrary to Candace's position, the clerical error in the distribution of personal property was not reversible error. A court on appeal may correct a trial court's judgment without awarding a new trial, unless such relief is impracticable or unfair to any of the parties. Ind. Rules of Procedure, App.Rule 15(N); Anacomp, Inc. v. Wright, (1983) Ind.App., 449 N.E.2d 610. Moreover, the trial court could have corrected the arithmetical error by nunc pro tunc entry at any time, even after appeal. Ind. Rules of Procedure, T.R. 60(A); Drost v. Professional Building Service Corp. (1978) 176 Ind.App. 172, 375 N.E.2d 241. We therefore order modification of the decree of dissolution to accurately reflect the dollar values assigned to each party's respective share of personal property.

ISSUE FOUR:

The major marital asset in the instant case was 90.2% of the outstanding stock in...