K. B. v. S. B.

• Decision Date: 29 January 1981
• Docket Number: No. 1-1279A369,1-1279A369
• Parties: In re the Marriage of K. B., Petitioner-Appellant, v. S. B., Respondent-Appellee.
• Court: Indiana Appellate Court

Page 749

415 N.E.2d 749

In re the Marriage of K. B., Petitioner-Appellant, v. S. B., Respondent-Appellee.

No. 1-1279A369.

Court of Appeals of Indiana, First District.

Jan. 29, 1981.

James E. Davis, Davis & Davis, Greenfield, for petitioner-appellant.

Michael J. Tosick, James L. Brand, Free, Brand, Tosick, VanWinkle & Allen, Greenfield, for respondent-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

K.B. (wife) appeals the order of the Hancock Superior Court granting S.B. (husband) visitation rights with their daughter, M.L.B. We affirm.

STATEMENT OF THE FACTS

K.B. and S.B. were married on June 6, 1964; they adopted M.L.B. on May 30, 1973, when she was three days old. K.B. and S.B. separated, and K.B. filed a petition for dissolution of marriage on February 2, 1978. A hearing was held on this petition before Judge Payne in the Hancock Superior Court, and K.B.'s petition for dissolution was granted. During the hearing, conflicting evidence was admitted to the effect that S.B. had not shown much interest in M.L.B. until September 1977; that S.B. had sexually fondled M.L.B.; and that on occasion S.B. had shaken M.L.B. or had begun to slap her. Custody of M.L.B. was granted to K.B., and S.B. was denied visitation rights. ¹ He filed a petition to modify the dissolution decree on January 30, 1979, so that he could have visitation rights. On the same date, S.B. filed a motion for change of judge. This motion was granted, and Special Judge Schrenker presided at the hearing on the petition to modify. The evidence revealed that S.B. had remarried and moved to Carmel where he lives with his wife and eleven (11) year old stepson in a two bedroom townhouse; that S.B. was less depressed; that he had not seen M.L.B. since February, 1978; that M.L.B. continued to live with her mother; that M.L.B. was happy and doing well in school. Pursuant to K.B.'s request for special findings of fact and conclusions of law, the court granted the modification on December 10, 1979, and found as follows:

"1. The Court finds that a dissolution of marriage was granted in the case by this Court on July 10, 1978, and the custody of said minor child, (M.L.B.), age 5, was granted to the petitioner, and the Court denied visiting privileges with said minor child, to the respondent.

"2. The Court further finds that the respondent herein, on the 30th day of January, 1979, filed his verified petition to modify the decree in this cause alleging a substantial and continuing change in circumstance in the relationship of the parties since the original decree was made in this cause, and prays the right to visit said child at all reasonable times, and further, that it would be to the best interest of said minor child that she visit with the respondent.

"3. The Court further finds that said child is alert, well adjusted (sic) and emotionally stable.

"4. The Court further finds that the respondent is married, emotionally stable, and maintains a suitable home and surroundings for visitation with said child.

"5. The Court further finds that the evidence submitted in this cause, discloses a substantial change of circumstances in the relationship of the parties hereto since the original decree, and that the order heretobefore (sic) entered denying respondent visiting privileges should be modified.

"6. The Court further finds from the record submitted, and evidence presented, that visitation by the respondent will not endanger the childs (sic) physical health or significantly impair her emotional development, but that it is in the best interest of said child, that the respondent be granted visiting rights with said child.

"The Court further determines that the law is with the respondent, and that as a matter of law the order denying visiting privileges made in this cause should be modified as hereinafter set out ...."

K.B. received a temporary stay of the trial court's order by this court on December 21, 1979. On January 4, 1980, the temporary stay was continued until the determination of K.B.'s appeal or further order of this court.

ISSUES

K.B. raises the following issues for our consideration:

1. Did the trial court's judgment contain findings of fact on all the ultimate facts necessary to support the judgment?

2. Did the trial court err in allowing testimony on issues which were previously litigated and which did not tend to show a change in circumstances?

3. Does the evidence support the trial court's findings and judgment?

4. Did the trial court err when it granted S.B.'s motion for change of judge?

DECISION

Issue One

K.B. alleges that the trial court failed to find all ultimate facts which are necessary for the modification of the dissolution decree. She contends that the standard to be applied by the trial court in determining whether a modification is necessary is whether there has been a change of conditions of such a decisive nature as to make it necessary for the welfare and happiness of the child that modification be granted; therefore, she states, a specific finding of fact that there has been such a change in conditions is necessary. On the other hand, S.B. contends the standard to be applied by the trial court in considering visitation rights is the best interests of the child as set out in Ind.Code 31-1-11.5-24(b). ²

Whether a change of conditions must be shown in order to obtain a modification of visitation rights has not been decided by this court since the Dissolution of Marriage Act of 1973. ³ However, it has been well settled that prior to the new act a change of conditions was necessary for a modification of visitation rights, DuFour v. DuFour, (1971) 149 Ind.App. 404, 273 N.E.2d 102; Renard v. Renard, (1956) 126 Ind.App. 245, 132 N.E.2d 278, as it was necessary for a modification of custody. Huston v. Huston, (1971) 256 Ind. 110, 267 N.E.2d 170. S.B. contends that the best interests of the child is the sole standard for a modification of visitation rights and cites as support therefore IC 31-1-11.5-24(b) and Chance v. Chance, (1980) Ind.App., 400 N.E.2d 1207. Chance involved the modification of the visitation provision of a dissolution agreement. The appellant argued on appeal that the appellee's Petition for Instructions was improper because it did not allege any change of circumstances which affected the best interests of the children. In addressing this issue, Judge Shields stated:

"The Dissolution of Marriage Act does not specifically require a change of conditions before a trial court can modify custody, let alone specify and detail visitation. Franklin v. Franklin, (1976) 169 Ind.App. 537, 349 N.E.2d 210. Were we to assume the trial court modified a visitation order, rather than specifying and detailing visitation, the directive of the applicable statute is that the modification serve the best interests of the child. IC 31-1-11.5-24 (Burns Supp.1979)." (Footnotes omitted.)

Id. at 1210-11.

We agree with Judge Shields that the statute does not specifically require that a change of conditions be shown to specify and detail visitation. Neither does it specifically require a change of conditions to modify visitation rights; ⁴ but rather, the statute specifically requires the modification serve the best interests of the child. However, without a requirement of some change of conditions for modification, the prior decree delineating the non-custodial parent's visitation rights would have no finality. As our Supreme Court stated in Wible v. Wible, (1964) 245 Ind. 235, 241, 196 N.E.2d 571, 574:

"(T)he dissatisfied party could continually harass the other party and the courts with petitions to modify, securing a change of judge and have that particular person as judge again review the facts and the evidence, hoping that such new judge would have a different viewpoint and thus change the custody. That would not put an end to the controversy, for then the other party could immediately file a petition to modify without alleging or showing any change in condition, and get another judge to review substantially the same facts, hoping again that this new judge would have a different viewpoint."

Although Wible deals with a petition to modify permanent custody, we believe the rationale used in Wible to be equally applicable to petitions to modify visitation rights. Without the requirement of a change of conditions, the issue of visitation rights could be relitigated endlessly to the detriment of a continuous relationship between the non-custodial parent and the child. This requirement of a change of conditions for modification of visitation rights does not in any way derogate the statutory standard found in IC 31-1-11.5-24(b). Rather, the change of conditions must be such that it is in the best interests of the child that a modification of visitation rights be granted since it is clearly the best interests of the child which are controlling. IC 31-1-11.5-24(b).

We now turn to the issue raised by K.B. that the special findings of the trial court did not include a finding that a change of conditions has occurred which makes it in M.L.B.'s best interests to modify S.B.'s visitation privileges. Specifically, K.B. contends the trial court's finding number five is a finding of evidentiary fact and not an ultimate fact. Alternatively, she states that if finding number five is an ultimate fact, it misapplies the law because it does not focus on the effect of the change on the welfare of the child. K.B. also contends that the trial court's finding number six is insufficient because it is not based on change of conditions.

Whether findings of fact are adequate depends upon whether they are sufficient to disclose a valid basis under the issues for the legal result reached in the judgment. In re Marriage of Miles, (1977) 173 Ind.App. 5, 362 N.E.2d 171, trans. den. Their purpose is to provide the parties and the reviewing courts with the theory on which the judge decided the case so that the right of review for error may be preserved....