Herrmann v. Herrmann

Decision Date18 May 1993
Docket NumberNo. 49A02-9108-CV-346,49A02-9108-CV-346
PartiesIn re the Marriage of Donald HERRMANN, Jr., Appellant-Respondent, v. Lisa HERRMANN, Appellee-Petitioner.
CourtIndiana Appellate Court

David W. Stone IV, Anderson, Gale M. Phelps, Indianapolis, for appellant-respondent.

Casey D. Cloyd, Indianapolis, for appellee-petitioner.

SHIELDS, Judge.

Donald Herrmann appeals the trial court's denial of his petition to modify the custody of the two children from his marriage to Lisa Patterson (formerly, Lisa Herrmann).

We affirm.

ISSUES

Herrmann raises issues for our review which we rephrase as: 1

Did the trial court abuse its discretion when it found that there were no substantial and continuing changes in the circumstances of the parties which justify modifying the custody of the minor children?

FACTS

On October 10, 1989, the Marion County Circuit Court dissolved the marriage of Herrmann and Patterson and awarded Patterson custody of the two children born to At the time of the divorce, Herrmann, a career non-commissioned officer in the United States Army, had returned from a tour of duty in Korea and was living in an army barracks. After the divorce, Herrmann remarried and moved to a suburb of Augusta, Georgia; Patterson also remarried and moved from the former marital residence.

the marriage, aged ten and six at that time. Herrmann was granted visitation with the children for four weeks each summer, and during Christmas and spring vacations in even numbered years. He was order to pay $122.50 per week toward the children's support and to maintain medical insurance for them. Patterson was given the federal and state tax exemption for the children if she was gainfully employed for each full calendar year. A 1990 nunc pro tunc order divided the uninsured medical, optical, dental, and pharmaceutical expenses equally between the parents.

On November 5, 1990, Herrmann petitioned for a modification of custody of the children, alleging that a substantial and continuing change of circumstances made it unreasonable for the children to remain in Patterson's custody. He asked to have physical custody of the two children, or in the alternative to grant him extended summer visitation, relief from the obligation to pay all uninsured medical expenses, 2 support abatement when the children were with him, re-allocation of the income tax exemption, and sharing of transportation costs incurred during visitation.

An evidentiary hearing was held on March 20, 1991. On May 22, 1991, the trial court found there was no showing of a substantial and continuing change in circumstances justifying a change of custody. The trial court denied Herrmann's modification petition, with the exception of two additional weeks of summer visitation, and ordered all other provisions of the prior orders continued. Herrmann appeals.

DISCUSSION

Herrmann argues that the trial court erred in finding that he failed to show a sufficient change in circumstances to justify a change in custody of his minor children. He also contends that even if the trial court properly decided the physical custody issue, it improperly denied his other modification requests, including support abatement when he had the children for visitation, the sharing of transportation costs incurred during visitation, and reallocation of the income tax exemption.

Custody modification is governed by IC 31-1-11.5-22(d) (1992 Supp.), which requires the trial court to find that a substantial and continuing change in circumstances has occurred which renders the original custody order unreasonable before a modification can be ordered. We review the Entry on Petition for Modification to determine whether the trial court abused its discretion in applying the applicable statutory guidelines. Simons v. Simons (1991), Ind.App., 566 N.E.2d 551, 554. An abuse exists if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. A modification of custody is warranted only when the noncustodial parent shows a decisive change of conditions in the custodial home or a change in the treatment of the children in the custodial home which necessitates removal. Id.

At the hearing, Herrmann testified extensively as to his claimed changed circumstances. Since the divorce, Herrmann has remarried and rented a townhouse in a suburb of Augusta, Georgia, with ample bedroom space for the children. He testified to the high quality of the neighborhood public schools and the opportunity for after-school and summer activities in the neighborhood and on the army base which the children could enjoy if they lived with him. However, a modification of custody is typically based on changes of circumstances respecting the custodial parent, and improvements of the noncustodial parent's situation do not support a change of custody. Pribush v. Roy (1983), Ind.App., 456 N.E.2d 747, 750.

In regard to the custodial home, Herrmann characterized the neighborhood where the children's present school was located as "nasty," Record at 124, and stated that he felt the school did not meet the children's needs and that the younger child was repeating first grade and reading on a remedial level while the older child, who Herrmann believes is "near gifted academically," id., was not being challenged academically. Patterson testified that the younger child was progressing in school at the time of the hearing and that she was in contact with the child's teacher as recently as a week before the hearing. She stated that she reads with the child and monitors his school work. In addition, in a letter to Herrmann, the younger child's teacher praised Patterson: "[h]er cooperation and support has helped to turn [the child] around. You can be sure [he] is getting the help he needs at home." Record at 195.

Herrmann complained that Patterson had not kept the children's vaccinations current and that he took them for medical and dental checkups when they visited him during their summer vacation. He stated that the younger child would need braces, that he had seen a speech therapist, and that Patterson had not responded when notified of the problems. Patterson said that she allowed Herrmann to provide the children's dental care and she had altered her plans to take them to the dentist after she discovered Herrmann had done so during the summer. She also testified that, although she did not have annual physicals performed, she sought medical attention for the children whenever they were sick.

Finally, Herrmann alleged the children used inappropriate racial epithets, exhibited an extensive knowledge of R-rated movies, and that they were allowed to ride in the back of Patterson's husband's pick-up truck without seatbelts. Although we are sensitive to Herrmann's parental concerns, the evidence, considered as a whole and most favorable to the judgment, see Pribush, 456 N.E.2d at 749, does not compel a finding of change in the children's custody such that the trial court abused its discretion in denying Herrmann's petition to modify custody. 3

Herrmann also contends that even if the trial court properly decided the physical custody issue, it improperly denied his other modification requests, including support abatement when the children were with him, reallocation of the income tax exemption, and sharing of transportation costs incurred during visitation. A person who seeks a modification of child support bears the burden of proving a substantial change in circumstances. Holman v. Holman (1985), Ind.App., 472 N.E.2d 1279, 1286. Although Herrmann requested these modifications during the modification hearing and argues for them in his brief, he did not introduce evidence to demonstrate substantial changes relevant to his proposed modifications. Thus, the trial court correctly exercised its discretion to deny his requests.

Judgment affirmed. 4

HOFFMAN, J., concurs.

BUCHANAN, Senior Judge, dissents, with separate dissenting opinion.

BUCHANAN, Senior Judge, dissenting.

I respectfully dissent. As I read the learned trial court's judgment, a legitimate concern is expressed as to the proper standard to apply in modification of custody cases. In pertinent part it provides:

"This Court, having heard the submitted evidence and arguments of counsel, having examined the papers and pleadings on file in this cause, having taken this matter under advisement and now being duly advised, finds that there has been no showing of a substantial and continuing change in circumstances such that the prior Orders of this Court relating to custody of the minor children are unreasonable. Accordingly, the Father's Petition for Modification of Child Custody should be denied. On the issue of modification of visitation, however, the Court finds the provisions of the Decree should be modified to provide that Father shall have six (6) weeks summer visitation each summer and that the other provisions of the prior orders of this Court shall remain in full force and effect.

This matter presents a most difficult issue for this Court. It is difficult because the law mandates this Court to maintain the status quo unless there has been a substantial and continuing change in the circumstances of the parties such that the prior orders of this Court are unreasonable. This is so even where, as here, the maintenance of the status quo may not be in the best interest of the children.

The Indiana General Assembly provided that the standard for a modification custodial decision shall be a substantial change; it was a limit upon the Courts' power of modification. This limit was imposed because stability is an important value in children's lives, and Courts should change custody only where there is clear and convincing evidence that such change is in the best interest of the children. The legislature was, in effect, providing a clear and convincing evidentiary standard for courts...

To continue reading

Request your trial
4 cases
  • Joe v. Lebow, 49A02-9504-JV-189
    • United States
    • Indiana Appellate Court
    • July 18, 1996
    ...of changed circumstances so substantial and continuing as to make the existing custody order unreasonable." See Herrmann v. Herrmann (1993) Ind.App., 613 N.E.2d 471, 473, reh'g The difference between these two standards was significant. Under the "changed circumstances" test, in order to wa......
  • Rosenberg v. Robinson
    • United States
    • Indiana Appellate Court
    • July 6, 2015
  • Palmer v. Palmer
    • United States
    • Indiana Appellate Court
    • May 14, 2015
    ...and case authority. ” Appellant's Appendix at 17 (emphasis added). It proceeded to cite language from the case of Herrmann v. Herrmann, 613 N.E.2d 471, 473 (Ind.Ct.App.1993), reh'g denied, in which this court stated: “A modification of custody is warranted only when the noncustodial parent ......
  • Gates v. Gates
    • United States
    • Indiana Appellate Court
    • June 30, 2014
    ...in custody such that the trial court abused its discretion in denying Father's petition to modify custody. See Hermann v. Hermann, 613 N.E.2d 471, 474 (Ind.Ct.App.1993).Affirmed.VAIDIK, C.J., and BROWN, J., concur.1 A request for findings was withdrawn before the conclusion of the hearing.2......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT