Haley v. Haley, 87A01-0110-CV-392.

• Decision Date: 18 July 2002
• Docket Number: No. 87A01-0110-CV-392.,87A01-0110-CV-392.
• Parties: Jana L. HALEY, Appellant-Petitioner, v. Kent E. HALEY, Appellee-Respondent.
• Court: Indiana Appellate Court

771 N.E.2d 743

Jana L. HALEY, Appellant-Petitioner, v. Kent E. HALEY, Appellee-Respondent.

No. 87A01-0110-CV-392.

Court of Appeals of Indiana.

July 18, 2002.

Kelly A. Lonnberg, Bowers Harrison, LLP, Evansville, IN, Attorney for Appellant.

Frank R. Hahn, Newburgh, IN, Attorney for Appellee.

OPINION

SULLIVAN, Judge.

Jana Haley ("Mother") appeals from the trial court's decision to grant Kent Haley's ("Father") Petition to Modify Custody of their daughter, D.H. She presents several issues for our review, which we restate as:

(1) whether the evidence established that a change in custody was justified;

(2) whether the trial court erred in establishing the visitation order;

(3) whether the trial court erred in granting a retroactive child support order following temporary custody being awarded to Father; and

(4) whether the trial court erred in granting the Father attorney fees.

We affirm in part and reverse in part.

A review of the record reveals that D.H. was born on December 19, 1991. Father and Mother subsequently divorced in 1995. At that time, custody of D.H. was awarded to Mother, with Father receiving "liberal visitation with the Child at any mutually agreeable times and places." Appellant's Appendix at 14. The parents also agreed to alternate time with D.H. on major holidays.

After the divorce, Father continued to reside in the marital residence and Mother moved to a home in Princeton, Indiana. Shortly thereafter, Father and Mother agreed that Mother should move from Princeton to Owensville, Indiana, so that D.H. would be in a better school corporation. Mother and D.H. lived in Owensville until their home was damaged in a storm, after which, in October of 2000, Mother and D.H. moved to Patoka, Indiana, to live with Mother's friend, James Whitten, until they could find a new place to live. Mother and D.H. continued to live at that residence in Patoka at least through May of 2001. In December of 2000, Mother, along with her sister, purchased a house in Desoto, Illinois, which is approximately two and one-half hours from Mother and D.H.'s residence in Patoka. Mother testified that she had thought about moving there in the future but had no plans to do so at the time of the hearing. Father testified that he initially learned about Mother's purchase of the house from D.H., who had told him that Mother planned to move there.

During the time that Mother and D.H. lived in Owensville and Patoka, D.H. attended school at Owensville Community School in the South Gibson School Corporation. D.H. is described by her teacher, Ms. Lingus, as "a struggling average student" who has trouble in reading and spelling. Transcript Vol. 1 at 17. D.H. receives extra help at school through the Stars Program and is assisted in her schoolwork by Mother, Father, and her stepmother, Charla, who is a teacher.

Father maintained visitation with D.H. over the years and remained current in his child support. D.H. also spent a considerable amount of time visiting her maternal grandmother and her paternal grandparents, who kept her on Sunday nights after her visitation with Father and took her to school on Monday mornings.

On January 12, 2001, Father filed his Petition to Modify Custody upon the grounds that there had been a change in circumstances. Specifically, he asserted "[t]hat the mother is not a fit and proper person to have the continued care, custody, control and education of the parties' child...." Appellant's App. at 22. Father also filed a Motion for Temporary Change in Custody, which was granted by the trial court on April 4, 2001. The trial court subsequently made the change of custody permanent on August 24, 2001.

I Change in Custody

Indiana Code § 31-17-2-21 (Burns Code Ed. Supp.2001) provides that a trial court may not modify a custody order unless the modification is in the best interests of the child and a substantial change has occurred in one or more of the following factors which a court may consider in initially determining custody under Indiana Code § 31-17-2-8 (Burns Code Ed. Supp.2001):

"(1) The age and sex of the child.

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

(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) The child's parent or parents;

(B) the child's sibling; and

(C) any other person who may significantly affect the child's best interests.

(5) The child's adjustment to the child's:

(A) home;

(B) school; and

(C) community.

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

(7) Evidence of a pattern of domestic violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) [IC XX-XX-X-X.5(b)] of this chapter."

See also Fields v. Fields, 749 N.E.2d 100, 108 (Ind.Ct.App.2001),

trans. denied. In pursuing a modification of a custody order, the party seeking the modification bears the burden of demonstrating that the existing custody order is unreasonable. Id. This is so because, as a general proposition, stability and permanence are considered best for the child. Id.

The modification of a custody order lies within the sound discretion of the trial court. Spencer v. Spencer, 684 N.E.2d 500, 501 (Ind.Ct.App.1997). Upon appeal, we will reverse a trial court's decision only upon a showing of an abuse of discretion. Id. An abuse of discretion is found when the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id. We do not judge witness credibility nor reweigh the evidence. Id. We consider only the evidence which supports the trial court's decision. Id.

An examination of the record reveals that Father presented several grounds at the hearings conducted on various dates to demonstrate that a substantial change in circumstances had occurred and that a change in custody was in the best interests of D.H. Specifically, Father argued that the lack of certainty regarding his visitation, Mother's changing of residences and moving from town to town, D.H.'s educational needs, D.H.'s interaction with her friends and family members, Mother's animosity toward Father, and Mother's failure to keep Father informed of her changes in residence and purchase of a home in Illinois justified a change in custody.

We begin by noting that some of the grounds upon which Father relied are not appropriate for modifying custody under the circumstances. First, Father and Mother's dissolution decree, entered in 1995, permitted that Father have reasonable visitation at mutually agreeable times. It also established that each parent would alternate time with D.H. on holidays. Father claimed that Mother was uncooperative and would change his visitation at the last minute and that visitation was seldom certain. However, the evidence presented showed that Father generally had visitation every other weekend and at holidays. While we do not reweigh the evidence or determine witness credibility, and therefore make no determination of whether Father's testimony that Mother would change visitation at the last minute was valid, we do note that Mother was not violating a court order by altering the visitation as there was no set schedule for visitation. If Father desired a more definite schedule for visitation, he could have petitioned the court for modification of the visitation order. Generally, lack of cooperation is not an appropriate ground for changing custody. See Pierce v. Pierce, 620 N.E.2d 726, 730 (Ind.Ct.App.1993)

(noting that cooperation or lack thereof by a parent is not an appropriate ground for changing custody).

Also, Mother and D.H.'s changes of residence occurred because of the separation and divorce of Father and Mother, their subsequent agreement that Mother needed to live in a better school district for D.H.'s education, and damage caused by a tree falling on Mother's home during a storm. None of these grounds for changing residences are appropriately relied upon to change custody in favor of Father.

Be that as it may, there are several grounds upon which Father appropriately relied in seeking a custody modification. At the time of Father and Mother's divorce, D.H. was four years old. In the six years since their divorce, D.H. has started to attend school and has grown into a hardworking, yet struggling student. As D.H. has grown older, it has also become apparent that her needs have changed. Father, who has always been active in D.H.'s life, has also changed his wishes in regard to having custody of D.H. See Joe v. Lebow, 670 N.E.2d 9, 26 (Ind.Ct.App. 1996)

(concluding that the Father's later desire to have custody, along with other factors, constituted a substantial change for consideration of a petition for modification). These factors are appropriately considered in determining whether a custody modification is permissible and warranted.

D.H.'s educational needs are also an important consideration in modifying custody. Both Father and Mother testified that they help D.H. with her homework, especially those areas in which she has trouble. However, Betty Perry, the Court Appointed Special Advocate ("CASA"), testified that Mother told her that the school would take care of D.H.'s academic difficulties. Both the CASA and Father questioned Mother's commitment to assisting D.H. with her educational needs.¹ Most telling of D.H.'s needs is the testimony of her teacher, Ms. Lingus. Ms. Lingus noted that D.H. had made improvements during the school year. These improvements aside, D.H. still had difficulty in school and needed extra work to continue to improve. As Ms. Lingus further remarked, D.H. usually scored better on her spelling tests when she stayed with Father for the weekend because they studied her schoolwork for the next week. This evidence demonstrates a...