Griffith v. Webb, 3-983A308

• Citation: 464 N.E.2d 384
• Decision Date: 20 June 1984
• Docket Number: No. 3-983A308,3-983A308
• Parties: Susan L. GRIFFITH, Appellant (Plaintiff Below), v. Thomas E. WEBB, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 384

464 N.E.2d 384

Susan L. GRIFFITH, Appellant (Plaintiff Below), v. Thomas E. WEBB, Appellee (Defendant Below).

No. 3-983A308.

Court of Appeals of Indiana Third District.

June 20, 1984.

Thomas O. Mulligan, Mulligan & Fenton, Knox, for appellant.

Robert D. Truitt, Lyons & Truitt, Valparaiso, for appellee.

HOFFMAN, Judge.

Amanda L. Griffith was born to Susan L. Griffith on October 18, 1976. Pursuant to an action to establish paternity, Thomas E. Webb was adjudged to be the father of Amanda on December 8, 1977. Amanda lived with her mother until custody of Amanda was changed to her father on June 15, 1983. In appealing that change in custody, Susan argues that there was insufficient evidence to show a substantial change in circumstances thereby warranting a change in custody.

The flaw in Susan's argument is that she bases it upon an inapplicable statutory provision. IND.CODE Sec. 31-1-11.5-22(d) reads:

"(d) The court in determining said child custody, shall make a modification thereof only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable...."

This section appears in the chapter of the INDIANA CODE entitled Dissolution of Marriage. Under the INDIANA CODE chapter entitled Paternity, one finds IND.CODE Sec. 31-6-6.1-11(e) which provides:

"(e) The court may modify an order determining custody rights whenever modification would serve the best interests of the child."

Although this Court is unclear as to the logic behind the Legislature's decision to provide differently for custody modifications arising out of paternity actions than those arising out of marriage dissolution actions, it is clear that it was a deliberate effort. The code provision covering modification of visitation orders arising out of paternity actions also uses the best interests of the child standard. ¹ However, the section of that chapter which deals with modification of a support order, uses the "substantial change in circumstances" language. ² While this Court can recommend that the Legislature perhaps examine this discrepancy and the possible constitutional ramifications thereof, it is only within that body's power to make the necessary change.

Since Susan Griffith and Thomas Webb were never married and since the custody issue here arose pursuant to a paternity action, clearly IND.CODE Sec. 31-6-6.1-11(e) is applicable to the present situation. Therefore, the issue is whether the change in custody was in the best interests of Amanda.

The function of an appellate tribunal in an appeal from a custody modification decree is to determine whether the trial court abused its discretion. It is for the trial court to determine, after examining the question in the context of the whole environment, whether a modification would be in the best interests of the child. Upon an affirmative finding by the trial court, this Court's function is merely to determine whether there was substantial probative evidence to support that conclusion. If so, it cannot be said that the trial court abused its discretion. Cf.: Poret v. Martin, (1982) Ind., 434 N.E.2d 885.

The evidence presented in this action was somewhat conflicting. As always, it is the duty of the trier of fact, not of this Court, to observe the witnesses and weigh the evidence which is presented. On appeal we must view the evidence in a light most favorable to the judgment. Therefore, we must determine whether there was...