Heller v. Heller

• Decision Date: 02 April 1962
• Docket Number: No. 19366,19366
• Citation: 181 N.E.2d 530,133 Ind.App. 259
• Parties: Grace D. HELLER, now Conally, Appellant, v. Morris HELLER, Appellee.
• Court: Indiana Appellate Court

Page 530

181 N.E.2d 530

133 Ind.App. 259

Grace D. HELLER, now Conally, Appellant, v. Morris HELLER, Appellee.

No. 19366.

Appellate Court of Indiana, In Banc.

April 2, 1962.

Dissenting Opinions April 3, 1962.

Concurring Opinion April 9, 1962.

Bangs & Yates, Donald G. Yates, Huntington, for appellant.

Robert Gates, Gates & Gates, Phil M. McNagny, Jr., Columbia City, for appellee. AX, Judge.

The divorce action out of which this custody action arose was originally filed in the Whitley Circuit Court. Appellant, plaintiff in the original action, filed a change of venue from the county and the cause of action was venued to Wabash County where the divorce action was tried, resulting in a decree for the appellant and vesting custody of their minor child with appellant, with the proviso that if she remarried or resided out of the state of Indiana, the custody of the child was to be in the appellee.

Subsequently, appellant filed a petition to modify the custody order to permit her to remarry, move to Michigan and retain custody. Appellee filed his cross-petition asking custody. Appellant then filed a verified motion for change of judge. A special judge was selected and qualified. Thereupon, the special judge heard the evidence and entered an order changing the original custody order, granting custody to appellee until further order of the court.

Subsequent to this second custody order, appellee filed a petition in the Wabash Circuit Court to modify the previous custody decree entered by the special judge, in order to permit him to take the child to New York to reside, and appellant also filed her petition for change of custody from the appellee to this appellant. Both of their petitions were filed and docketed under the cause wherein the original divorce had been awarded to appellant against appellee.

On the date set for hearing on the petitions, the record shows that the attorneys of record for the appellant had withdrawn their appearance, and the attorneys of record in this appeal entered their appearance for appellant and filed written objections to the competency and jurisdiction of the special judge, on the grounds that said special judge had made a final decision in the previous custody hearing and by reason thereof his jurisdiction had ceased upon the entry of his final decree.

The record shows that the court overruled said objections by entering the following record: 'since they were not filed until the time the petitions wer set for hearing and neither the court nor opposing counsel were informed that the question of jurisdiction would be raised prior to this morning.' Thereupon the appellant requested a continuance, which was denied. Cause was then submitted for hearing on the petition of appellee and evidence was presented. The appellant declined to present any evidence either on appellee's petition or appellant's petition to modify the order of custody, electing to stand on her original objections to the competency and jurisdiction of the special judge.

The special judge thereupon found for appellee and against appellant, and entered an order authorizing appellee to take the child out of the state of Indiana with certain visitation rights to appellant. The record entry of the special judge concluded with the following statement: 'The undersigned special judge now resigns from further participation in this cause and this cause is now returned to the regular judge of this court.'

Appellant's Motion for New Trial specifying the lack of jurisdiction of the special judge, the error of the special judge in overruling appellant's objection to his competency and jurisdiction, and that the decision of the court is not sustained by sufficient evidence and is contrary to law, was overruled by the special judge, and this appeal followed. Appellant assigned as error the overruling of her motion for new trial.

The question herein is, does the special judge appointed to hear and determine a petition to modify a decree as to custody of a child retain jurisdiction over a subsequent proceeding to modify the custody order which he had previously entered, or does the jurisdiction of this subsequent proceeding vest in the regular court judge from whom a change of venue had been taken in the previous custody proceeding?

Appellee argues that this is a case of first impression in Indiana. In support of his contention that the special judge retained jurisdiction in this case before us, appellee argued, and we agree, that it is the law in Indiana that a decree as to custody of children is subject to modification during the minority of children. Citing Stone v. Stone (1902), 158 Ind. 628, 64 N.E. 86; Scott v. Scott (1949), 227 Ind. 396, 86 N.E.2d 533, and Reineke v. Northerner (1949), 119 Ind.App. 539, 84 N.E.2d 900. Also that our Court has indicated that a petition to modify a custody order is part of a continuing cause and not a new and independent action. Reineke v. Northerner, supra.

Jurisdiction of the trial court relative to the custody of children in a divorce action is acquired by statute which provides:

'Section 3-1219 [Burns' 1946 Replacement], Custody 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 under said statute the court has complete jurisdiction to provide for the support and custody of minor children during said minority, subject to the modification of the decree. Manners v. State (1936), 210 Ind. 648, 5 N.E.2d 300.

Under our Indiana practice, the appointment of a special judge to hear the motion to modify the custody order was proper. Rhinehalt v. Rhinehalt (1920), 73 Ind.App. 211, 127 N.E. 10; McDaniels v. McDaniels (1945), 116 Ind.App. 322, 62 N.E.2d 876.

The statute under which the special judge in this case was appointed reads as follows:

'Section 2-1410 [Burns' 1946 Replacement], Special judge--Qualification--Filing of appointment--Duration of power.--[If the person selected consents to serve, he] shall be qualified as other judges, and his appointment shall be filed with the clerk and entered on the order-book; and he shall have power to hear and determine said cause until the same is finally disposed of, or change the venue thereof in proper cases.'

From the above stated laws, appellee argues that the issue of the custody of a child is not disposed of until the custody of the child is no longer an issue before the court. Consequently, appellee urges that the special judge therefore retained jurisdiction over the custody of the child, which includes any attempts to modify his custody orders, until the custody issue is absolved by time, or a change of venue from the judge is filed, or the special judge resigns or refuses to retain jurisdiction * * * and in the instant case, none of these events occurred, so, consequently, appellee argues that the special judge rightly retained jurisdiction in this action and was correct in overruling appellant's motion for new trial.

We are inclined to agree with appellee that our courts have not definitely decided the question herein involved and that this is a case of first impression. However, by reason of previous decisions by this and the Supreme Court, we are of the opinion that appellee's contention that the special judge had continuing jurisdiction over the custody matter is wrong.

In the case of Kissel v. Lewis (1901), 27 Ind.App. 302, 61 N.E. 209, this Court stated:

'In the case at bar the contempt complained of was not a contempt of the special judge, nor of any regular judge, but of the Hamilton circuit court, by whose authority the writ of injunction was issued. Appellee appealed to the court that rendered the decree, not to any particular judge who tried the case. If appellant did any act in violation of the injunction, it was an offense against the circuit court, and not the special judge; and if such act be a contempt it is a contempt of the court, and not the special judge. The circuit court at the trial did act through the special judge; but, when the special judge rendered the final decree, he had exercised the jurisdiction he was called upon to entertain. If jurisdiction is again to be put into exercise, it must be done by the court through the then regularly acting judge or by some one legally authorized to act as judge.'

In the recent case of Haag v. Haag (1960), 240 Ind. 291, 163 N.E.2d 243, the Supreme Court recognized 'that in a divorce action the court has continuing jurisdiction in respect to minor children of the parties and may, in a proper proceeding, modify its decree as it pertains to custody or support, at any time during the dependency of the children, as the circumstances of the parents may require and in order to serve the interest and welfare of the children.'

Judge Bobbitt, speaking for the court, at page 298, 163 N.E.2d at page 246, stated:

'Such orders are subject to modification as above stated, not because they are interlocutory and reserve or leave some question or decision for future determination, but because changes in conditions and other causes which cannot be anticipated at the time the divorce decree is entered, may make it necessary for the best interest and welfare of the children to change either the order of custody or of support. An order in a divorce decree for the custody and support of minor dependent children 'cannot anticipate the changes that may occur' in the circumstances surrounding the 'parents, or in their habits, character and fitness to have the custody and care of the children,' and it is to meet these contingencies that the court retains jurisdiction to modify its decree as to custody and support of minor children should the occasion to do so arise. Otherwise the original decree remains unchanged.'

Again in the Haag case, the Supreme Court, referring to Stone v. Stone, supra and Cirtin v. Cirtin (1928), 199 Ind. 737, 164 N.E. 493, concluded that an order...