Franks v. Franks

• Decision Date: 06 March 1975
• Docket Number: No. 3--1173A157,3--1173A157
• Citation: 163 Ind.App. 346,323 N.E.2d 678
• Parties: Robert Edward FRANKS, Plaintiff-Appellant, v. Mary Margaret FRANKS, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 678

323 N.E.2d 678

163 Ind.App. 346

Robert Edward FRANKS, Plaintiff-Appellant, v. Mary Margaret FRANKS, Defendant-Appellee.

No. 3--1173A157.

Court of Appeals of Indiana, Third District.

March 6, 1975.

Alan R. Smulevitz, Gary, for appellant.

Fred A. Malo, Hammond, for appellee.

HOFFMAN, Judge.

This appeal arises from an award of custody of a minor child by the trial court in a divorce action. Plaintiff-appellant Robert E. Franks (Robert) filed a divorce action against defendant-appellee Mary Margaret Franks (Mary), who cross-claimed for a divorce. Both sought custody of the child of the marriage. After granting a divorce to Mary, the trial court awarded custody of the child to her parents. Appellant then filed a motion to correct errors which was overruled, and he perfected this appeal.

Appellant first asserts that the trial court erred in failing to make a finding that he was unfit to have custody of the child before awarding custody to third parties. It is true that the law recognizes certain parental rights to custody, and that such parental rights continue to subsist after an adverse custody ruling. Sanders v. Sanders (1974), Ind.App., 310 N.E.2d 905. However, such rights are subordinate to the best interests of the child.

IC 1971, 31--1--12--15 (Burns Code Ed.), which was in effect at the time the judgment of the trial court in this cause was entered, ¹ provided:

'Guardianship, custody, support and education of children.--The court in decreeing a divorce shall make provision for the guardianship, custody, support, and education of the minor children of such marriage; and the court may require the father to provide all or some specified part of the cost of education of such child or children beyond the twelfth year of education provided by the public schools, taking into consideration the earnings of the father, the station in life of the parents and child or children involved, the aptitude of the child or children as evidenced by school records, the separate property of the child or children, and all other relevant factors: Provided, That the jurisdiction over the child or children shall remain in the court at all times during the child's or children's minority and shall not be lost because of the death of either parent.'

IC 1971, 31--1--12--15, supra, did not require an explicit finding by the trial court that a parent is unfit before he may be denied custody, and appellant has cited no cases to this court requiring such a finding. Furthermore, appellee's cross-complaint alleged that Robert 'is not a fit and proper person to have the care and custody' of their child. In finding for Mary on such cross-complaint, the trial court impliedly made a finding of appellant's unfitness to have custody. The failure of the trial court to explicitly make such a finding cannot warrant reversal.

The next issue which must be considered herein is whether there was sufficient evidence to sustain the judgment of the trial court on the custody issue. The facts and reasonable inferences therefrom in the record of this cause which are most favorable to the appellee herein establish that although Mary is of an adult age, she has the mental capacity of a normal individual of the age of 10 years. Robert was aware of Mary's condition prior to their marriage. After they were married a child was born to them, and thereafter Robert became somewhat indifferent toward Mary. Later, they ceased to occupy the same bedroom. Mary attempted to discuss these problems with Robert but this caused him to become angry and evasive.

Although Robert frequently visited his relatives and took the child along, Mary was often left at home. Mary's clothing deteriorated into a 'pathetic' condition, and Robert rarely took her out socially. Robert often told Mary that she was 'stupid', and on one occasion struck her across the face.

During the marriage, Robert also became involved with other women. He admitted having sexual relations with one woman, and there is evidence that he wrote love letters to another. Additionally, he permitted a third woman to live in their home for a period of approximately seven months. On one occasion, Mary discovered Robert in bed with this woman during the night.

The record also reflects that Mary properly fed, bathed and clothed the child. The child would become dirty while playing outdoors during the day, and Mary bathed her each evening. Robert occasionally took the child to his relatives' homes to be bathed when she was soiled from playing.

Mary stated that she has been unable to earn other than small amounts of money throughout her life, but loves her child and can care for the child with help from her parents. Mary's parents expressed a willingness to care for Mary and her child.

Mary's cross-complaint asked that custody be awarded either to her or to her parents. After hearing the evidence in this cause, the trial court awarded custody to Mary's parents.

In the case of Duckworth v. Duckworth (1932), 203 Ind. 276, 179 N.E. 773, a father sought reversed of a trial court judgment in an action to modify custody awarding custody of his minor son to his sister-in-law and his brother. Our Supreme Court affirmed the judgment of the trial court depriving the father of custody, and, at 287--88 of 203 Ind., at 777 of 179 N.E., stated:

'The trial court had before it the question of this father's reformation and the paramount question of the welfare of this child. The determination of both questions rested upon the sound judicial discretion of the trial court rather than upon hard and fast rules of law. (Citations omitted.) Our review of the action of the trial court in this case is limited to judicial abuse of discretion, and, from the evidence which we have briefly set out above, we have determined that no case has been made out here to show an abuse of discretion by the...