Huston v. Huston, 570S106

• Citation: 256 Ind. 110,267 N.E.2d 170
• Decision Date: 08 March 1971
• Docket Number: No. 570S106,570S106
• Parties: Earlene HUSTON, Appellant, v. Donald W. HUSTON, Appellee.
• Court: Supreme Court of Indiana

Page 170

267 N.E.2d 170 256 Ind. 110 Earlene HUSTON, Appellant,
v.
Donald W. HUSTON, Appellee. No. 570S106. Supreme Court of Indiana. March 8, 1971.

[256 Ind. 111] Eugene N. Chipman, Chipman, Chipman & Rakestraw, Plymouth, for appellant.

David H. Feagler, Plymouth, for appellee.

DeBRULER, Judge.

This is an appeal from a decision of the Marshall Circuit Court wherein that court denied the appellant-plaintiff-mother's Verified Petition for Modification of Custody

Page 171

Order. The petition in question requested the trial court to modify custody of two minor children born of the marriage of the appellant-plaintiff-mother and the appellee-defendant-father.

The trial court denied appellant's petition. Appellant's only allegation of error is that the denial of her petition was an abuse of the trial court's discretionary power.

Appellant was granted a divorce from the appellee on January 16, 1961. The trial court at that time awarded her permanent custody of the three minor children, Dennis, Vicki and Donnie. Permanent custody of the children remained in the appellant until September, 1967, when the appellant and appellee appeared before the court and requested that the permanent custody of the two boys, Dennis and Donnie, be changed from the appellant to appellee. The trial court granted the request. Twenty months thereafter, in May of 1969, the appellant filed this Verified Petition for Modification of Custody, which being overruled, has brought about this appeal.

In order to justify a change of custody of minor children of divorced parents, there must be a change in conditions from the date of the last court order and such change must be of such decisive character as to make change of custody necessary for the welfare of the children. Perdue v. Perdue (1970), Ind., 257 N.E.2d 827; Brickley v. Brickley (1965), 247 Ind. 201, 210 N.E.2d 850, 211 N.E.2d 183; [256 Ind. 112] Renard v. Renard (1956), 126 Ind.App. 245, 132 N.E.2d 278; Adams v. Purtlebaugh (1952), 230 Ind. 269, 102 N.E.2d 499.

Where modification is sought the burden is on the petitioner to allege and prove a substantial and material change in conditions affecting the welfare of the children. Wible v. Wible (1964), 245 Ind. 235, 196 N.E.2d 571. In the case at bar that burden was on the appellant.

On the basis of the evidence received, the trial court determined that the appellant failed to sustain the burden of proving such a change of conditions. That evidence may be...