Franklin v. Franklin, 1--1275A231

• Citation: 169 Ind.App. 537,349 N.E.2d 210
• Decision Date: 24 June 1976
• Docket Number: No. 1--1275A231,1--1275A231
• Parties: Barbara J. FRANKLIN, Appellant (Defendant below), v. James A. FRANKLIN, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 210

349 N.E.2d 210

169 Ind.App. 537

Barbara J. FRANKLIN, Appellant (Defendant below), v. James A. FRANKLIN, Appellee (Plaintiff below).

No. 1--1275A231.

Court of Appeals of Indiana, First District.

June 24, 1976.

Woodrow S. Nasser, Terre Haute, for appellant.

Wallace H. Grosbach, Brazil, for appellee.

LYBROOK, Judge.

Defendant-appellant, Barbara J. Franklin (Barbara), appeals from the granting of the petition of plaintiff-appellee, James A. Franklin (James), to modify a custody decree. The modification order charged the custody of the minor child to James.

This appeal presents two issues for consideration by this court:

(1) Did the trial court abuse its discretion in modifying the custody order in light of the evidence presented at hearing?

(2) Did James' arrearages in support payments and previous violation of the visitation rights provisions of the original divorce decree preclude the trial court's consideration of James' motion to modify the custody order?

The facts most favorable to the judgment are: On November 16, 1972, after hearing evidence, the trial court granted James an absolute divorce from the defendant, Barbara. Custody of the minor child was awarded to Barbara, James was ordered to pay $15 per week support to Barbara for the minor child and was given reasonable visitation rights. The parties were unable to agree to reasonable visitation rights, and at James' request the court ordered specific dates and times for plaintiff to visit the child.

On November 12, 1974, James filed a petition to modify the decree as to custody of the child. James contended that there had been a change in circumstances in the home life of the minor child and that it was no longer in the best interests of the child to continue in Barbara's custody.

At the hearing on the motion to modify the decree of custody, James testified as to the religous and social contacts of his ex-wife, and related that he had remarried. Barbara also testified as to her religious activities, her social acquaintances, and related that her son could make the decision for himself. In conformance with the parties' wishes, the child was examined privately by the trial judge in chambers.

The relevant findings by the trial court indicate that James was in arrears $240 in his support payments, that James had custody of the child for six weeks and should be credited $90, and that James shall have custody of the minor child.

I.

Barbara first asserts that the trial court abused its discretion in granting James' motion to modify the order of custody. It is her contention that the trial court should not have granted the motion because there had been no change in conditions since the previous hearing and that she was not proven to be an unfit mother.

Examination of Indiana's new Dissolution of Marriage Act ¹ is of some assistance in assessing the scope of the trial court's discretion. This Act specifically delineates the factors to be considered by the trial court in determining the best interests of the child. These factors are:

(1) the age and sex of the child;

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

(3) the wishes of the child;

(4) interaction and interrelationship of a 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; and

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

IC 1971, 31--1--11.5--21(a) (Burns Code Ed.Supp.1975).

In examining the wishes of the child, the court specifically is authorized to:

'. . . interview the child in chambers to ascertain the child's wishes. The court may permit counsel to be present at the interview, in which event a record may be made of the interview and the same may be made a part of the record for purposes of appeal.'

IC 1971, 31--1--11.5--21(d) (Burns Code Ed.Supp.1975).

No cases have yet been reported interpreting these provisions of the Dissolution of Marriage Act. The section dealing with child custody does not specifically provide that a change of conditions must be present before the court can modify the custody decree. The guiding principle in this Act, as under prior decisions, is the best interests of the child. In determining what is in the best interests of the child it is unnecessary to find that the mother is unfit, for the father's position may have improved to the degree that the best interests of the child would dictate that the father have custody of the child. 24 Am.Jur.2d § 823, p. 935. Prior to the enactment of the new statute, the Supreme Court in Marshall v. Reeves (1974), Ind., 311 N.E.2d 807, was faced with the similar argument, namely that petitioner in the trial court had failed to demonstrate a change in conditions justifying modification of the custody decree. The Court of Appeals had reversed with Judge Buchanan dissenting. Justice Hunter affirmed the trial court's decision and adopted Judge Buchanan's opinion which stated:

'. . . (The majority has) substituted the decisive change in conditions' standard described in Adams v. Purtlebaugh (1951), 230 Ind. 269, 102 N.E.2d 499, and Wible v. Wible (1964), 245 Ind. 235, 196 N.E.2d 571 (and other cases), which is an accepted rule governing the trial court in its determination of modification. Differently stated, the majority have used the trial court 'decisive change in conditions' rule as a fulcrum to weigh the evidence.

'By so doing fuel is fed into the flames of the apparent confusion over the respective roles played by these two rules--one designed for appellate tribunals appeal and the other for trial courts. See, e.g., Note, 47 Ind.L.J. 129 (1971).

'In truth there need be no such confusion. A long line of Indiana cases clearly distinguishes these two standards leaving to the trial court the question of whether or not there has been a decisive change in conditions while limiting the appellate tribunal to a determination of whether or not the evidence could serve as a rational basis for the court's findings.'

311 N.E.2d at 811.

It is the duty of the trial court to determine whether there was a change in conditions which warranted a change in custody. This court's function on appeal is to examine the decision of the trial court and determine whether the record discloses...