Hyatte v. Lopez

• Decision Date: 29 August 1977
• Docket Number: No. 3-577A122,3-577A122
• Citation: 174 Ind.App. 149,366 N.E.2d 676
• Parties: Elmer HYATTE and Mildred Hyatte, Defendants-Appellants, v. Miguel LOPEZ, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 676

366 N.E.2d 676

174 Ind.App. 149

Elmer HYATTE and Mildred Hyatte, Defendants-Appellants, v. Miguel LOPEZ, Plaintiff-Appellee.

No. 3-577A122.

Court of Appeals of Indiana, First District.

Aug. 29, 1977.

Christian John Gielow, Gary, for defendants-appellants.

Philip M. Cagen, Valparaiso, for plaintiff-appellee.

ROBERTSON, Chief Justice.

Mildred Hyatte and Elmer Hyatte (the Hyattes) appeal from a judgment entered by the trial court in a habeas corpus proceeding awarding custody of Mildred Hyatte's granddaughter, Eulalia Joanne Lopez, to Eulalia's father, Miguel Lopez (Lopez). The Hyattes raise these issues for review:

(1) Did the trial court err in denying the Hyattes' motion for continuance?

(2) Did the trial court err in recognizing custodial rights in the father of an illegitimate child?

(3) Did the trial court err in not finding a waiver of custodial rights by Lopez?

(4) Was the trial court obligated to give greater emphasis to the welfare of the child than to the custodial rights of the natural father?

(5) Did the trial court err in concluding from the evidence that the best interests of the child would be served by granting custody to Lopez?

We affirm.

Mildred Hyatte, Elmer Hyatte, and Miguel Lopez testified at the hearing. Marked conflicts pervade the testimony.

In Brown v. Beachler (1946), 224 Ind. 477, 68 N.E.2d 915, our Supreme Court affirmed the trial court's decision in a habeas corpus proceeding which denied a mother's petition to obtain custody of her daughter from the child's aunt. In its opinion, the Supreme Court noted that resolution of issues raised by a custody dispute involves the exercise of judicial discretion by the trial court and not the strict application of hard and fast rules of law. The trial court has a better opportunity to weigh the evidence and to reach a proper conclusion than a court of review has with only the printed page of the record before it. The trial court observes the manner and demeanor of witnesses as they testify. It is better able to determine what resolution of the dispute is warranted.

Accordingly, it is not within the province of a court of review to weigh the evidence but, rather, to consider only that evidence most favorable to the appellee and the reasonable inferences which may be drawn therefrom and to determine whether that evidence is sufficient to sustain the decision of the trial court. Emmons v. Dinelli (1956), 235 Ind. 249, 133 N.E.2d 56.

The evidence most favorable to Lopez reveals that Miguel Lopez and Sandra Kamins (Kamins) ² commenced living together in 1962 or 1963. Although Kamins left Lopez several times, they lived together during most of the next ten or eleven years but did not marry.

Kamins and Lopez are the natural parents of Eulalia Joanne Lopez, who was born July 4, 1971. The three of them lived together until either Kamins or Lopez left Eulalia with Kamins's mother, Mildred Hyatte, on February 12, 1974, shortly before Kamins entered the hospital for the birth of another child. Eulalia has resided with the Hyattes continuously since that time.

Kamins and Lopez did not live together after Kamins was released from the hospital. Lopez testified that he visited Eulalia frequently at first, but the Hyattes repeatedly interfered with his attempts to visit his daughter and once called the police when he came to visit Eulalia.

On October 17, 1975, Lopez filed a petition for writ of habeas corpus in which he alleged that Kamins had abandoned the child and the Hyattes had custody of his child without his permission or consent. The trial court ultimately awarded custody to Lopez.

The Hyattes argue that the trial court erred when it denied their motion for continuance. At the time of the hearing, the home study report concerning the home of Lopez had been filed with the court, but the home study report concerning the home of the Hyattes was not yet available. The Hyattes insist that "the judge's view of the evidence had to be consciously or subconsciously affected by one favorable home study without allowing for the second home study which was not completed at the time of hearing."

The trial court has broad discretion in granting or denying a motion for continuance. Loudermilk v. Feld Truck Leasing Co. (1976), Ind.App., 358 N.E.2d 160. Likewise, the orderly procedure of trial is left to the sound legal discretion of the trial court. State ex rel. Rooney v. Lake Circuit Court (1957), 236 Ind. 345, 140 N.E.2d 217.

At the conclusion of the hearing, the judge stated, "Well, I think it is apparent that I want to see the Lake County Welfare report before I decide this case." The Memorandum of Decision includes this reference "Home study reports on both homes contain conflicting recommendations." The record fails to support the Hyattes' speculations that their rights were prejudiced in some way by the sequence of events. We find no abuse of discretion.

The Hyattes contend that the father of an illegitimate child has no natural custodial right to his child. They neither cite authority nor offer argument in support of this contention. Therefore, we deem this issue waived. Ind. Rules of Procedures, Appellate Rule 8.3(A)(7).

We consider now the three remaining issues raised by the Hyattes. They contend that the trial court (a) erred in not finding a waiver of custodial rights by Lopez, (b) erroneously placed greater emphasis upon the custodial rights of the father than upon the welfare of the child, and (c) erred in concluding from the evidence that the best interests of the child would be served by granting custody to Lopez. In each instance the Hyattes ask this court to weigh the evidence; we must decline.

Hendrickson v. Binkley (1974), Ind.App., 316 N.E.2d 376, 380, cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98, involved a habeas corpus proceeding in which a divorced father sought to recover custody of his child who remained with the maternal grandfather after death of the child's mother. In that opinion appears reference to a three-step approach for analyzing custody disputes between natural parents and third parties:

"First, it is presumed it will be in the best interests of the child to be placed in the custody of the natural parent. Secondly, to rebut this presumption it must be shown by the attacking party that there is, (a) unfitness, (b) long acquiescence, or (c) voluntary relinquishment such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child. The third step is that upon a showing of one of these above three factors, then it will be in the best interests of the child to be placed with the third party."

The whereabouts of the child's mother is unknown to all parties involved in the proceeding. The custody dispute involves a natural father against a third party. Therefore, a presumption exists in favor of granting custody of the child to Lopez. This presumption may be rebutted by evidence that (a) Lopez is unfit, (b) Lopez has been acquiescent, or (c) Lopez voluntarily relinquished custody.

Lopez testified that he was gainfully employed at a job he had held since 1969, he had received promotions at work, he had made arrangements for his daughter's schooling, and both he and his wife wanted Eulalia to live with them. The Hyattes offered little evidence to prove Lopez unfit to have custody of his daughter. They alleged that he had failed to pay support or to visit his daughter regularly; he denied or offered reasons for such omissions. Elmer Hyatte alleged that Lopez had appeared at their home while Lopez was intoxicated, but Lopez denied the allegation. The Hyattes emphasized that Lopez had not pursued opportunities to marry the child's mother; Lopez testified that he did ask Kamins to marry him once but she departed with another man before the wedding. The evidence does not support a ruling that Lopez is unfit as a matter of law.

The Hyattes argue that Lopez waived any custodial right because of his alleged failure to provide support money or to visit his child. Lopez testified that he offered to pay $50 every two weeks, but the Hyattes refused to accept the money. Mrs. Hyatte stated that she rejected an offer by Lopez to pay support money because it was conditioned upon recognition of his right to remove the child from their home. Mr. Hyatte testified that he refused $20 which Lopez offered him and returned a check for $5 which Lopez mailed to the Hyattes. Lopez described repeated attempts in person and by telephone to obtain the permission of the...