Farley v. Farley
| Decision Date | 10 February 1977 |
| Docket Number | No. 1--376A37,1--376A37 |
| Citation | 359 N.E.2d 583,172 Ind.App. 120 |
| Parties | Charlotte M. FARLEY, Petitioner-Appellant, v. Billy Joe FARLEY, Respondent-Appellee. |
| Court | Indiana Appellate Court |
Kenneth L. Nunn, Gregory D. Lantz, Bloomington, for appellant.
George B. Mathes, George W. Languell, Spencer, for appellee.
The petitioner-appellant Charlotte Farley (wife) brings this appeal from the granting of a petition for dissolution of marriage and awarding custody of the minor child of the parties to the respondent-appellee Billy Farley (husband).
Five issues are presented for review:
1. Whether the trial court abused its discretion by failing to grant the wife's motion for continuance of the final hearing.
2. Whether the trial court committed error by refusing to set aside the judgment on the grounds of newly discovered evidence.
3. Whether the trial court committed error in overruling the wife's motion for change of judge and in refusing to disqualify himself.
4. Whether the trial court committed error by refusing to grant the wife's motion to dismiss the action as not properly before the court.
5. Whether the trial court abused its discretion in awarding custody of the parties' minor child to the husband.
Finding no reversible error, we affirm the trial court's decision.
The facts pertinent to this appeal show that the parties filed separate actions for dissolution of their marriage on the 6th of June, 1974. Each sought custody of their then four month old son. The trial court granted the husband's motion prohibiting the wife from removing the child from the jurisdiction of the court during the pendency of the suit or until further order of the court. The hearing regarding temporary custody was continued by agreement after assurance by the wife's attorney that she would remain within the jurisdiction of the court.
Several attempted reconciliations failed, and the wife, again pregnant, left Indiana to live with her parents in Texas in early April, 1975. The following August the husband sought a hearing on child custody. The wife, after receiving notice of the Indiana hearing, filed an action in Texas for dissolution and a determination of custody of the child. The husband then moved that the final hearing on the dissolution be combined with the custody hearing. Notice was given to the wife and her counsel. Wife's counsel, after receiving notice of the hearings, advised the wife that she should retain another attorney (because of a potential conflict of interest). Her new attorney appeared at the final hearing and orally moved for a dismissal, for a continuance, and for a change of judge. All of these motions were overruled. The wife was not present at the hearing and did not present any witnesses.
The trial court dissolved the marriage and awarded custody of the child to the husband. The wife, by counsel, then sought a stay of enforcement and to amend the judgment. At the hearing on these motions, evidence was heard on, among other things, the mother's fitness for custody. Her trial counsel also introduced a doctor's note saying that the wife should not travel any distance because of her pregnancy. At this same hearing the wife's attorney attempted to call as witnesses the husband and the husband's mother who also was the court reporter. Neither was allowed to testify because they had been present and available to testify at the previous hearing on dissolution and custody. The wife's attorney also did not prevail on motions to set aside the decree and to have the trial judge disqualify himself. The trial court did set another hearing at a time when the wife should be able to appear.
The wife's first issue alleges an abuse of discretion by the trial court in refusing her request for a continuance of the dissolution hearing.
Indiana Rules of Procedure, Trial Rule 53.4--Continuances, reads in pertinent part: 'Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon agreement of all the parties or upon a showing of good cause established by affidavit or other evidence.' (Emphasis added).
The burden is placed upon the wife as the moving party to establish 'good cause' for such continuance. She asserts that the withdrawal of her counsel one week prior to the hearing and her own inability to travel to attend trial were sufficient to establish 'good cause' for continuance.
As this Court said in Terry v. Terry (1974), Ind.App., 313 N.E.2d 83, 91:
The wife was served notice of the hearing on motion for custody of child through her attorney of record on August 11, 1975. Actual notice was also sent to her by her attorney of record on August 22, 1975, that entry and motion for custody had been filed, advising her of the September 19 hearing date, and also advising her that her attorneys of record wished to withdraw from her case.
The trial court considered the lack of opportunity for the wife's present attorney to prepare, as well as her absence in light of her awareness (for approximately 30 to 40 days) of both the hearing scheduled for September 19 on the husband's motion for custody of child and the anticipated withdrawal of her original counsel; her continued violation of the June 6, 1974, restraining order; her commencement of action for dissolution of the marriage in the State of Texas; and the litigation she commenced which had been pending in the trial court for over a year.
We decline to reweigh the evidence which the trial court had available in making its ruling on the motion for continuance, and cannot, therefore, say as a matter of law that the trial court abused its discretion.
The wife next argues that the trial court committed error by refusing to set aside the judgment on the ground of newly discovered evidence.
At the October 3 hearing on the wife's motion for stay of enforcement of order and motion for immediate hearing, she, through her attorney, offered a motion to set aside the judgment on the basis of newly discovered evidence consisting of an affidavit by her attorney stating that he had been retained by her grandmother on the day prior to the final hearing and had not had sufficient time to prepare adequately for the hearing; affidavits by her grandmother and great-aunt attesting to her 'fitness' as a mother; and an August 29, 1975, letter from her physician in Texas which advised her not to travel 'any distance' due to her pregnancy.
The wife maintains that Clause 8 of Indiana Rules of Procedure, Trial Rule 60(B), which reads, in part: 'On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment, order, default or proceeding for the following reasons: . . . (8) any other reason justifying relief from the operation of the judgment' provides a basis for the remedy she seeks.
This Court has stated on more than one occasion, that:
Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867, 871, 872, cited in Offutt v. Sheehan (1976), Ind.App., 344 N.E.2d 92, 96, 97. (Emphasis added).
This Court in Offutt also stated: '. . . there is a strong presumption that the evidence could have been discovered prior to trial, Trout v. Summit Lawn Cemetery Association, Inc. (1974), Ind.App., 312 N.E.2d 498, 500, and that every such motion should be received with caution and carefully scrutinized.' Kelly v. Bunch (1972), 153 Ind.App. 407, 287 N.E.2d 586, 588; Shaw v. Shaw (1973), Ind.App., 304 N.E.2d 536, 541; Anderson v. State (1928), 200 Ind. 143, 148, 161 N.E. 625.
The trial court held that the wife had 40 days' notice of the proceedings even if her attorney did not. The court also found that the affidavits by her grandmother and great-aunt, even when bolstered by testimony at the hearing, and the letter from her physician which was admitted into evidence, were not of sufficient weight to change the court's decision on the final hearing. The wife has not established a clear abuse of trial court's discretion which would compel this court to substitute its judgment for that of the trial court.
The next issue is whether the trial judge committed error in overruling the wife's motion for change of judge and in refusing to disqualify himself.
The wife argues that the trial court was prejudiced in favor of the...
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