Gatchel v. Gatchel, 19353

• Citation: 132 Ind.App. 56, 175 N.E.2d 887
• Case Date: June 08, 1961
• Court: Court of Appeals of Indiana

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175 N.E.2d 887 132 Ind.App. 56 John Cleaver GATCHEL, Appellant,
v.
Joan D. GATCHEL, Appellee. No. 19353. Appellate Court of Indiana, Division No. 2. June 8, 1961.

[132 Ind.App. 57] Lorch & Lorch, Chester V. Lorch, Basil H. Lorch, Jr., Lorch & Lorch, New Albany, for appellant.

Warren W. Martin, Jr., Jeffersonville, Hughes & Antcliff, Greenwood, for appellee.

BIERLY, Judge.

This proceeding was instituted by appellee, Joan D. Gatchel, in the Floyd Circuit Court to modify a decree and judgment entered October 14, 1957, wherein appellant was awarded the sole custody of the minor child of the parties without visitation rights to the appellee.

[132 Ind.App. 58] To the first petition, filed by appellee, to modify said judgment, appellant filed a demurrer thereto, which the court sustained. Thereafter, appellee filed a second petition to modify. Again, appellant filed a demurrer thereto, assigning as a reason therefor, 'That the petition does not state facts sufficient to constitute a cause of action.' The court overruled said demurrer, and, on April 8, 1959, found that appellee is 'a fit and proper person to be entrusted with the partial care, custody and control of the following child, Clair S. Gatchel; and that the defendant (appellee) is entitled to the custody between the hours of 12:00 noon and 7:00 p. m. each and every Saturday.' (Our emphasis). The court rendered appropriate judgment on its finding.

Appellant timely filed his motion for a new trial, and, as grounds therefor, asserted that the decision of the court is not sustained by sufficient evidence, and is contrary to law. The court overruled appellant's motion for a new trial and this appeal followed. In his assignment of errors, appellant alleges error by the court in overruling his motion for a new trial, and in overruling his demurrer to appellee's petition to modify.

The record discloses that appellant and appellee in this cause of action had engaged in extensive litigation for divorce and the custody of the minor child of the parties, for some time prior to the entry of the order herein appealed from. Litigation had been carried on in the States of Indiana, Colorado, and Kentucky.

In the divorce action on or about October 1, 1957, appellant and appellee entered into an agreement wherein custody of the minor child was placed with appellee with

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visitational rights accorded appellant, and an obligation by him for child support. This agreement was entered of record. Thereafter, without notice to the court and to the appellant, appellee took her child [132 Ind.App. 59] to Colorado, whereupon, appellant obtained an order from the Floyd Circuit Court on October 14, 1957, granting him the sole custody of the minor child, but said order was silent as to any right of visitation by the appellee.

Fortified with the court order of October 14, 1957, appellant proceeded to Colorado, and by writ of habeas corpus, obtained the custody of the minor child and brought it back to Kentucky. Appellee brought an unsuccessful action in Kentucky for the purpose of establishing appellant's residence in that state. Subsequently to October 14, 1957 and prior to December 23, 1957, at a hearing before the Floyd Circuit Court, the appellee shot and mortally wounded appellant's mother at her apartment in Louisville, Kentucky. Following a charge of manslaughter growing out of said act, appellee, upon a plea of temporary insanity, was acquitted.

While the court order of October 14, 1957, was silent as to any permission granting appellee rights to visit her minor child, the attorneys for the parties in February, 1958, secured an agreement between the parties to the effect that appellee be permitted to visit the child monthly in the office of appellant's attorney in Louisville. This arrangement continued until August, 1958, at which time appellee filed further pleadings in the Floyd Circuit Court seeking partial custody of her child. Immediately thereafter, appellant refused appellee further visitation privileges with the child. The next time appellee was permitted to visit her child was on December 26, 1958, upon order by letter of the Judge of the Floyd Circuit Court.

Appellee, in her second petition to modify the court order of October 14, 1957, charged appellant with failure to comply with and to continue in August, 1958, the agreement entered into the previous February between[132 Ind.App. 60] the parties, as consummated by and through their attorneys, whereby appellee was granted visitation rights monthly with her child; that at the time of the filing of this petition on February 20, 1959, appellee had seen her child only once since August, 1958, and that that visit with her child was on December 26, 1958, through the intervention of the Judge of the Floyd Circuit Court; that she seeks visitation rights with her child; that she 'is a fit and proper person to have partial care and custody of said child;' and that the 'welfare of said child can best be served by granting partial custody of the child' to the appellee.

According to the evidence, the appellee resides in Louisville, Kentucky, in a dwelling consisting of four rooms, a bedroom and a bath. She is employed as a secretary to the President of the Fulton Fish Market in that city. Appellant resides in Oak Park, Jeffersonville, Indiana, but is employed by W. D. Gatchel and Sons in Louisville, Kentucky. Appellant sends the minor child to the Mary Anita Nursery School in Louisville.

Appellant contends that in order to justify a modification by the court, of a former decree as to custody of a minor child, it is incumbent upon the petitioner to allege and to prove, 'a change in circumstances and conditions of such a decisive character,' that it is imperative for the court in considering the welfare and happiness of the child, to accede to the request for a change in the custody and care of the child.

The appellant further tenaciously insists that no such change of conditions, is alleged in appellee's petition, nor, he alleges, does the testimony so establish. Appellant further postulates that the court's decree and judgment of October 14, 1957, is final 'upon the facts that existed at the time of the rendition of said judgment [132 Ind.App. 61] and any modification of said judgment as to the care or custody of the minor child, must be based upon the conduct or changed circumstances of the parties, subsequent to the prior order of said Court,' and that it is imperative

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that appellee must allege in her petition and establish by proof 'a change in circumstances which would justify the court in modifying the previous order.' (Our emphasis), citing Brown v. Beachler, 1946, 224 Ind. 477, 68 N.E.2d 915; Scott v. Scott, 1949, 227 Ind. 396, 86 N.E.2d 533; Adams v. Purtlebaugh, 1951, 230 Ind. 269, 102 N.E.2d 499; Reineke v. Northerner, 1949, 119 Ind.App. 539, 84 N.E.2d 900.

Moreover, appellant urges a reversal on the assumption that the trial court, on October 14, 1957, adjudged appellant a fit and proper person to have the care and custody of the minor child of the parties; that appellee in her evidence, on the basis of her petition, did not present any reasons to the contrary, hence, the status quo could not be set aside, citing Hussey v. Whiting, 1896, 145 Ind. 580-582, 44 N.E. 639; Luellen v. Younger, 1924, 194 Ind. 411, 417, 133 N.E. 495, 143 N.E. 163; Duckworth v. Duckworth, 1932, 203 Ind. 276, 280, 285, 179 N.E. 773; that the petition for a modification of an order of custody, as in the case at bar, always depends on matters arising subsequent to the former decree, citing Renard v. Renard, 1956, 126 Ind.App. 245, 132 N.E.2d 278; Maxwell v. Maxwell, 1956, 127 Ind.App. 266, 138 N.E.2d 921, 140 N.E.2d 878; and that appellant further contends that the Indiana rule of law, as in cases heretofore cited, is to the effect, 'that there must be a change in conditions so vital as to make it necessary for the welfare of the child that there be a change in custody.' (Appellant's Brief, page 36). (Our emphasis). '* * * and this [132 Ind.App. 62] must be shown by the evidence * * *,' citing Biedron v. Biedron, 1958, 128 Ind.App. 299, 148 N.E.2d 209; Renard v. Renard, supra; McKay v. Carstens, 1952, 231 Ind. 252, 108 N.E.2d 249.

Appellant asserts that petitioner-appellee failed to meet the legal requirements set forth in the cases heretofore cited, and that her evidence presented did not show a change in circumstances...