Guardianship of Phillips, In re, 1-578A126

• Decision Date: 01 November 1978
• Docket Number: No. 1-578A126,1-578A126
• Citation: 383 N.E.2d 1056,178 Ind.App. 220
• Parties: In re the GUARDIANSHIP OF Barry Stephan PHILLIPS and Jennifer Twyre Phillips, minors. Charles M. OVERBEY and Trula Mount, Appellants (Co-Petitioners below), v. Harry R. PHILLIPS, Jr., Appellee (Respondent below).
• Court: Indiana Appellate Court

Page 1056

383 N.E.2d 1056

178 Ind.App. 220

In re the GUARDIANSHIP OF Barry Stephan PHILLIPS and

Jennifer Twyre Phillips, minors.

Charles M. OVERBEY and Trula Mount, Appellants (Co-Petitioners below), v. Harry R. PHILLIPS, Jr., Appellee (Respondent below).

No. 1-578A126.

Court of Appeals of Indiana, First District.

Nov. 1, 1978.

Thomas E. Everitt, Everitt & Houston, Scottsburg, for appellants

Donald R. Bonsett, Bonsett & Thompson, Scottsburg, for appellee.

ROBERTSON, Judge.

Harry and Catherine Phillips's short-lived marriage was blessed with two children who are the subject of this appeal.

A decree of divorce entered by Scott Circuit Court in April, 1973, granted custody of the children, subject to the husband's right of visitation, in Catherine. Thereafter, in July, 1977, Catherine met an untimely death, and co-petitioner-appellant Trula Mount of Scottsburg, maternal grandmother of the children, took the children into her care. Mount and co-petitioner-appellant ¹ Charles Overbey of Goleta, California, brother of the decedent, subsequently filed a petition for appointment as co-guardians; the circuit court entered a temporary order placing the children in Mount's custody until the court could hold a hearing on the petition. Upon the hearing, the court took the matter under advisement and extended the temporary guardianship until further order. The trial court later entered an order dissolving the prior orders, appointed Mount guardian of the children's estates, denied the petition for appointment of temporary and permanent co-guardians, and granted custody in the father, respondent-

appellee, Harry Phillips (Phillips). The trial court's denial of Overbey's Motion to Correct Errors has lead to this appeal which presents the following issues for review:

1. Whether the trial court erred in failing to appoint Overbey as co-guardian of the persons of the children;

2. Whether the trial court erred in failing to order a home study of the parties in conflict; and

3. Whether the trial court erred in sustaining objections to certain questions propounded to Mount on direct examination.

We affirm.

As to the first issue, Appellants direct the court's attention to the following provision in the will of Catherine Phillips, executed prior to her divorce from Harry Phillips:

If it shall be necessary that some person other than myself be entrusted with the care and custody of my minor children, it is my request that said care, custody, and control be entrusted to Mr. and Mrs. Charles M. Overbey, of Goleta, California.

Appellants argue, in essence, that a guardian nominated by the will of the legal custodial parent of minor children is entitled to appointment over all others. For this proposition, they principally rely on Nation v. Green, (1919) 188 Ind. 697, 123 N.E. 163, wherein the Indiana Supreme Court decided, based upon Sec. 2519 Rev.Stat.1881, ² that "(a) guardian nominated by will is entitled by statute to appointment over all others, but his appointment, duties and powers are governed by the law regulating guardians not so nominated." Id., at 710, 123 N.E. at 168. They moreover maintain that today's Ind.Code 29-1-18-10, ³ insofar as it relates to appointment of a guardian contained in a will, is historically traceable to Sec. 2519, and that "(t)he evolution ⁴ of IC 29-1-18-10 to its present form has had a common and consistent theme regarding the preference for the appointment of a guardian nominated by Will." (Appellants' brief.)

There are several reasons, however, for our deciding this issue against Appellants and in favor of the trial court's determination.

First, Appellants' reliance on Nation v. Green, as Phillips correctly suggests, is misplaced. In Nation, the father had been previously decreed unfit to care for the child in controversy. 188 Ind. at 697, 123 N.E. at 168. Such was not the case here; there is no evidence in the record that Phillips had previously been decreed as unfit for the care and custody of his children. In addition, the factual setting of the 1919 Nation case is so readily distinguishable from the present setting as to be of negligible guiding value.

Secondly, Appellants' statutory construction ignores other statutes and case precedent relevant to custodial and guardianship rights of surviving parents.

We observe initially that IC 29-1-18-5 and -6 are pertinent. Section 5, with certain exceptions, provides that parents shall be natural guardians of their children. Section 6 states, in part, that "(a) guardian of the person may be appointed for any incompetent Except a minor having a natural guardian in this state who is properly performing his duties as natural guardian . . . ." (Our emphasis.)

Indiana cases have also recognized the rule of the common law that the natural parents of minor children are entitled to custody of the children, except where the parents are shown to be unsuitable persons to be entrusted with the care, control, and education of the children. See, e. g., Gilmore v. Kitson, (1905) 165 Ind. 402, 74 N.E. 1083; Combs v. Gilley, (1941) 219 Ind. 139, 36 N.E.2d 776; State ex rel. Gregory v. Superior Court, etc., (1961) 242 Ind. 42, 176 N.E.2d 126; Sanders v. Sanders, (1974) 160 Ind.App. 174, 310 N.E.2d 905; Hendrickson v. Binkley, (1974) 161 Ind.App. 388, 316 N.E.2d 376.

In the context of divorce, the settled rule in Indiana is that when a divorce decree gives custody to one parent, and that parent subsequently dies, the right to custody immediately and automatically inures to the surviving parent. Bryan v. Lyon, (1885) 104 Ind. 227, 3 N.E. 880; Gregory, supra ; See Gilchrist v. Gilchrist, (1947) 225 Ind. 367, 75 N.E.2d 417. That is the majority view. See Annotation, 39 A.L.R.2d 258, 260.

"The other construction of law in Indiana is that the 'best interests' of the child are paramount to the presumption in favor of the surviving parent and therefore custody of a child is not controlled by hard and fast rules of law." Hendrickson v. Binkley, supra, 161 Ind.App. at 392, 316 N.E.2d at 379.

Judge Lowdermilk's reasoned opinion in the Hendrickson case, summarizing well the Indiana law in this area and guiding our decision here, recognizes and employs the majority three-step approach to the "best interest" test of custody disputes between natural parents and third parties. The analysis, as set forth in Hendrickson, is as follows:

First, it is presumed it will be in the best interests of the child to be placed in the custody of the natural parent. Secondly, to rebut this presumption it must be shown by the attacking party that there is, (a) unfitness, (b) long acquiescence, or (c) voluntary relinquishment such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child. The third step is that upon a showing of one of these above three factors, then it will be in the best interests of the child to be placed with the third party.

161 Ind.App. at 393-4, 316 N.E.2d at 380.

Insofar as this case involves the surviving parent Phillips against third parties, a showing of one of the three factors of the "best interest" test is required. Id., at 394, 316 N.E.2d at 380. Such a showing, however, has not been made here. There is no evidence showing Phillips to be unfit; the trial court, moreover, entered a finding that Phillips was a fit and proper person to have the care, custody, and control of his children. Also, the trial court's finding that the evidence fails to show voluntary relinquishment or long acquiescence is borne out in the record. Phillips exercised his visitation rights under the divorce decree and paid his child support. At the time of the entering of the temporary guardianship order following Catherine's death, Phillips's children had been living with their grandmother, Mount, for only three days.

Finally, and notwithstanding our reasoning above, Appellants cannot succeed on their petition for appointment as co-guardians of the persons of the minor children by virtue of IC 29-1-18-21. Said provision proscribes the appointment of more than one guardian of the person unless they be husband and wife. IC 29-1-18-21(a).

Appellants submit, with respect to the second issue, that the absence of home studies, and any information to be gained therefrom, rendered the trial court incapable of making an advised decision on the best interests of the children. The trial record, however, militates against Appellants' position in that the record reveals no request, as IC 31-1-11.5-22 ⁵ requires, but (Counsel for Appellants): . . . The Court may also may well see fit to in aiding it to make a decision to order home studies on the parties here, by the local agencies here and the ones in California, (sic) I am not asking necessarily that it be done but I am just Suggesting to the Court that it might be possible. (Our emphasis.)

merely a suggestion that the trial court order home visits:

The issue presents no error.

Appellants next allege that they were prejudiced by the trial court's apparent application of IC 34-1-14-6 (the so-called "Dead Man's Statute") in excluding Mount testimony relating to statements by the decedent which, Appellants submit, would have served to explain decedent's motive in nominating the Overbeys in her will as guardian and which would have related to Phillips's suitability for custody. They argue, essentially, that the decedent was the "person in the best position" to have personal knowledge of Phillips relating to his suitability and that such information "would not, in the natural course of events, be known to persons outside of the household of Catherine and Harry R. Phillips, Jr." (Appellants' brief). We conclude there was no error, however.

That portion of the record relevant to this issue is as follows:

Q (Appellants' counsel) What was or is the...