Landing v. Landing

• Citation: 152 Ind.App. 660,284 N.E.2d 857
• Decision Date: 05 July 1972
• Docket Number: No. 272A87,272A87
• Parties: Geraldine LANDING, Plaintiff-Appellant, v. James E. LANDING, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 857

284 N.E.2d 857

152 Ind.App. 660

Geraldine LANDING, Plaintiff-Appellant, v. James E. LANDING, Defendant-Appellee.

No. 272A87.

Court of Appeals of Indiana, Third District.

July 5, 1972.

John A. Kocher, Robert W. Gilmore, Jr., Kenefick & Brennan, Michigan City, for plaintiff-appellant.

Marcellus B. Meyer, Michigan City, for defendant-appellee. HOFFMAN, Chief Judge.

The issue presented by this appeal is whether the father of a minor child met his burden of proof in a proceeding instituted by him to modify a prior order of child custody.

On September 26, 1969, the appellant-mother and appellee-father were granted a decree of absolute divorce by the LaPorte Superior Court, No. 1. The appellant-mother was given, inter alia, custody of the four minor children of the parties and a rent-free lease of their dwelling-house.

On February 10, 1970, the trial court found that three of the minor children of the parties had been emancipated, leaving one minor child to be supported. The trial court accordingly modified the support order.

On August 4, 1971, the father filed his verified petition for change of child custody alleging, inter alia, that since the decree of divorce was rendered the conditions and circumstances of the parties have changed so as to warrant, in the best interest and welfare of said minor child, a modification of the divorce decree, that the mother is not a fit and proper person to have the care and custody of such minor child, and that in the best interest of the minor child his custody should be awarded to the father.

Following the appointment of a special judge, a hearing was held on the father's petition for change of child custody. Thereafter, the trial court granted the petition of the father-appelle to modify the decree, and he was given the care, custody and control of the minor child, subject to reasonable visitation rights of the mother-appellant. The motion to correct errors filed by the mother was overruled, and this appeal followed.

In Partridge v. Partridge (1971), Ind., 272 N.E.2d 448, at 451, it was stated:

'The law in Indiana is well established that any modification of a custody order must be based upon a change of circumstances occurring after the initial order, which renders the contemplated change necessary for the welfare of the child. The burden is on the party seeking the modification of the decree to prove such changes. Perdue v. Perdue (1970), Ind., 257 N.E.2d 827, 21 Ind.Dec. 188; Brickley v. Brickley (1965), 247 Ind. 201, 210 N.E.2d 850, 211 N.E.2d 183, 6 Ind.Dec. 572; Wible v. Wible (1964), 245 Ind. 235, 196 N.E.2d 571, 3 Ind.Dec. 104; Adams v. Purtlebaugh (1951), 230 Ind. 269, 102 N.E.2d 499.

'As was stated by this Court in Wible, supra:

'There is reason and logic in such a principle of law. The purpose of such a rule in the law is that the welfare of the children and their custody should not continually be changed, and left uncertain, thus creating instability in the living conditions of the children. It is their welfare--not that of the parents--that should be the primary concern of the trial court.' 245 Ind. 235, 241, 196 N.E.2d 571, 574.'

The modification of an order of child custody must be grounded on the well-being and best interests of the child. An order of child custody must stand so long as the conditions under which the order was made continue to exist. It is not in the best interests of a child of tender years to be made the ball in a legal game of ping pong between litigious parents. However, when it can be shown by the petitioning party that such changes have taken place that the prior order is no longer in the best interests of the child, the prior order must, and should be modified.

There is testimony in the record before us showing that the mother had taken the child from the rent-free, three-bedroom one and one-half bath home awarded her by the divorce decree to live with her parents in South Bend. There they lived with the child's maternal grandparents in a small two-bedroom home with no bathroom, only a toilet. The father testified that when he would pick up the boy in South Bend the boy would have a '(d)irty head, dirty hair, dirty ears, blackheads, dirty feet, dirty toe nails (toenails), dirty finger nails.' The father also testified as follows:

'Q Describe what happens when he is here with you.

'A I would say when he is with us he is a perfectly normal, healthy young 10-year old American boy.

'Q Any change in that condition when you return him to his mother's home?

'A Get within one block of the house when we take him back and he changes like a clam.

'Q What do you mean by that?

'A He won't speak, he is extremely fidgety, begins making hand motions, all kinds of exhibits of little tic-like affairs; clinching of fists and things of this type that are always symptomatic of anxiety and tension.

'Q Can you describe your son's health the last year or so since he has been over there?

'A Yes. Physically I see no great difference. He seems to be growing. Psychologically I see a great deal of difference. Rather traumatic, in fact. He is not the same boy who lived at 109 Case Street in Michigan City.

'Q Mr. Landing, tell the court why you filed this action...