Hoyle v. Hoyle, 3-584

• Docket Nº: No. 3-584
• Citation: 473 N.E.2d 653
• Case Date: January 31, 1985
• Court: Court of Appeals of Indiana

Page 653

473 N.E.2d 653 Mary A. HOYLE, Appellant (Defendant Below),
v.
Kenneth W. HOYLE, Appellee (Plaintiff Below). No. 3-584 A 142. Court of Appeals of Indiana,
Third District. Jan. 31, 1985.

Page 655

Howard S. Grimm, Jr., Fort Wayne, for appellant.

David K. Hawk, Thomas J. Felts, Burt, Blee, Hawk & Sutton, Fort Wayne, for appellee.

HOFFMAN, Judge.

On December 28, 1983, the trial court dissolved the marriage of Mary and Kenneth Hoyle. Appellant Mary appeals the decision of that court and raises the following issues for review:

(1) whether the trial court abused its discretion in awarding custody of the two minor children to Kenneth;

(2) whether the trial court abused its discretion in ordering Mary to pay $84.00 per week for the support of the minor children;

(3) whether the trial court abused its discretion in awarding only one income tax exemption to Mary and the other to Kenneth;

(4) whether the trial court erred in ordering Mary to pay $1,851.96 for her share of the accumulated household and child-related expenses pursuant to a stipulation entered into by the parties; and

(5) whether the trial court abused its discretion in dividing the equity in the marital home.

Mary first contends the trial court abused its discretion by awarding custody of the couple's two minor children to Kenneth. She correctly points out that the trial court's custody decision is guided by IND.CODE Sec. 31-1-11.5-21; however, she maintains that as the trial court's findings of fact did not specifically address those factors, there is no evidence that they were considered. Mary also claims that a review of the evidence does not support the trial court's conclusion.

While IND.CODE Sec. 31-1-11.5-21(a) sets forth the factors which the trial court should consider when making its custody order, ¹ it does not require specific findings on each factor. In re Marriage of Ford (1984), Ind.App., 470 N.E.2d 357. In addition, this Court will only reverse the trial court's custody determination if that determination is clearly against the logic and effect of the facts and circumstances before the court, so as to constitute a manifest abuse of discretion. Keramida v. Zachmanoglou (1984), Ind.App., 470 N.E.2d 769; In re Marriage of Ford, supra.

Considering those factors in the statute, there was evidence that the Hoyles' marriage produced two children: a son, Derek, who was almost eight years old at the time the petition for dissolution was filed, and a daughter, Bethany, who was almost two years old at that time. Kenneth stated that he wants custody of the children because he is able to provide them with love, care, attention, and their basic needs. Mary stated that she also wants custody of the children. The psychologist who interviewed and tested Mary, Kenneth, and Derek, stated that Derek wants to be with Kenneth and that Bethany is too young to interview.

The psychologist also stated the bond between Derek and Kenneth is quite close and is better than that between Derek and Mary. He further stated that Derek and Bethany have a very close sibling relationship and that the children should be kept

Page 656

together. Kenneth and Mary agree that the children should be together. Neighbors and friends testified that the relationship between Kenneth and the children was very good. Both Kenneth and Mary have jobs which are flexible enough that they can leave or take a day off whenever an emergency with the children arises. Other testimony revealed that Derek is a bright boy, doing well, and enjoying school.

Kenneth testified that both he and Mary have excellent physical health. In addition he stated that he has excellent emotional health. Similarly, Mary stated that she is emotionally sound. The testimony of the psychologist, however, was that Mary has a character disorder, while Kenneth does not. Mary's character disorder, histrionic personality disorder, involves her emotional defense systems. And again, his conclusion was that custody of both children should be awarded to Kenneth.

Based on the evidence, the trial court did not abuse its discretion in awarding custody to Kenneth.

Mary next argues that the trial court abused its discretion in ordering her to pay $84.00 per week for child support. Determinations of child support will not be disturbed unless the trial court abused its discretion or acted contrary to law. Olson v. Olson (1983), Ind.App., 445 N.E.2d 1386. IND.CODE Sec. 31-1-11.5-12(a) lists those factors which the trial court is to consider in determining support payments. ²

The evidence presented at trial revealed that Kenneth received net pay of $237.65 on a weekly basis, and that Mary received net pay of $472.00 every two weeks, which comes to $236.00 each week. There was also evidence that Kenneth's expenses while living with Bethany and Derek in the marital home totaled $1,326.18 per month, which equals $306.04 per week. ³ This amount would maintain the children's standard of living at the level it had been during the marriage. Mary stated that her monthly expenses at the time of trial included her life insurance premium and her car payment. However, she failed to show the trial court just what those expenses totaled.

From the evidence presented at trial and the court's determination with respect thereto, there is no showing that the trial court's order of support payment amounted to an abuse of discretion.

Mary's third argument is that the trial court abused its discretion in awarding her an income tax exemption only for Bethany, while awarding the exemption for Derek to Kenneth.

In a dissolution case, the trial court is vested with the jurisdiction to determine as part of the custody...