Johnson v. Johnson, 3-379A89

• Court: Indiana Appellate Court
• Writing for the Court: YOUNG; MILLER, P. J., and CHIPMAN
• Citation: Johnson v. Johnson, 406 N.E.2d 1236 (Ind. App. 1980)
• Decision Date: 15 July 1980
• Docket Number: No. 3-379A89,3-379A89
• Parties: Mary A. JOHNSON, Appellant (Defendant Below), v. James N. JOHNSON, Appellee (Plaintiff Below).

Page 1236

406 N.E.2d 1236

Mary A. JOHNSON, Appellant (Defendant Below), v. James N. JOHNSON, Appellee (Plaintiff Below).

No. 3-379A89.

Court of Appeals of Indiana, Fourth District.

July 15, 1980.

Otto M. Bonahoom, Bonahoom, Chapman & McNellis, Fort Wayne, for appellant.

James E. Springer, Fort Wayne, for appellee.

YOUNG, Judge.

Mary Johnson appeals a decree of dissolution of her marriage to James L. Johnson contending that the trial judge erred in three respects: first, that the cross-examination of a witness was so restricted as to prevent impeachment; second, that the trial judge demonstrated by his conduct actual prejudice against her requiring that he disqualify himself from acting in the case; third, that the trial judge's decision to place custody of their minor child with James L. Johnson was not supported by sufficient evidence. We reverse. Because of our resolution of the issue of custody, the other issues relating to custody will not be discussed as they are unlikely to surface on retrial.

The standard for review of a trial court's findings in a custody determination upon the dissolution of marriage is limited to the question of abuse of judicial discretion. The standard to be considered by the court is the "best interests of the children." As said by the court in Schwartz v. Schwartz, (1976) Ind.App., 351 N.E.2d 900, 901:

'It is within the discretion of the trial court to award custody of the children consistent with their best interest, and this court will not reverse the award unless a manifest abuse of discretion is shown. . . .'

'The welfare of the child is paramount to the claims of either parent, and its care and custody should be awarded with regard to the best interests of the child. The trial judge is in a position to see the parties, to observe their conduct and demeanor, and to hear them testify, and his decision ought not be reversed unless an abuse of discretion has been shown. . . .'

'The disposition of children is not controlled by hard and fast rules of law but by the exercise of sound judicial discretion of the court confronted with the problem. Review by an appellate court of such disposition is limited to the question of abuse of judicial discretion.'

An abuse of discretion is defined by the court in Shaw v. Shaw, (1973) 159 Ind.App. 33, 304 N.E.2d 536, 539 as

An abuse of discretion is an erroneous conclusion in judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.

The trial judge made no findings regarding why awarding custody of the nine month old daughter to the father was in the best interest of such child. Nor were any requested. Any rationale for such decision must be gleaned from his extemporaneous remarks at the conclusion of the evidence.

THE COURT: Well, I must confess to you, gentlemen, that I don't understand this case at all. I don't know what to believe. There's so much in it that makes absolutely no sense from any standard of human experience that I don't even begin to know where to get a handle on it. I don't, I don't know what to believe. I have the feeling that there's something here that all of you are conspiring not to tell me, that would help me understand it. It would be very easy to believe that, that this marriage is simply a sad story of a widower with a couple of children, who married a younger woman who wasn't mature enough and ready for marriage. Be very easy to believe that. Certainly a lot of things have happened that would support that kind of an, an analysis of this case. It's inconceivable to me that this woman could have moved out on her husband after two months without having made any tangible, noticeable, recordable or otherwise rememberable effort to resolve her problems. And, it's inconceivable to me that her mother could help her. But that seems like too simple an answer, because there are, in spite of all of Mr. Springer's witnesses that indicate that his client is a fair to middlin' person who's doin' a good job of comping (sic) with a nasty break that fate dealt him, he's a good father, there are some indications that there may be more below the surface than that, and I really don't know whether he's a boozer or he isn't, because there isn't anybody to confirm that. The only person I'm hearing that from is Mary, or anybody she told. I realize that's kind of a hard thing to kind of prove, under this, in this kind of an environment. I know that. You know, but when I look at all the indications of the, when look at everything that would indicate that maybe that's a fact, I've got to weigh it all kind of carefully because there are motivations behind everyone who said that saying it. There's certainly no reason for me to believe, other than maybe some indication of maturity and indecision, that Mary isn't a perfectly capable person to care for her own child. She does have some problem areas because capability is not the only thing I look at. When I look at some of the other things, I've got to be candid, I don't like what I see. Got a son, yet his paternity's never been established. He's never been allowed, or permitted, or encouraged to have a relationship with his father, and worst of all, his right to his economic, to the economic support of his father was apparently thrown away by his mother, or by others, and I don't think she's handled that well. She's now got another child. Twenty-three years old. Two children, one short-term unsuccessful marriage. If she is, in fact, "hung up" on the business of her religion, it appears to me that she...