Leisure v. Wheeler
| Decision Date | 01 June 2005 |
| Docket Number | No. 49A02-0411-CV-918.,49A02-0411-CV-918. |
| Citation | 828 N.E.2d 409 |
| Parties | Stephanie Joy LEISURE, Appellant-Petitioner, v. William Thomas WHEELER, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Steven Sams, Indianapolis, IN, Attorney for Appellant.
Monty K. Woolsey, Miroff, Cross & Woolsey, Indianapolis, IN, Attorney for Appellee.
Stephanie Joy Leisure ("Mother") appeals the trial court's denial of her petition to modify custody and failure to rule on her petition to modify child support. We find that Mother did not carry her burden of establishing that there was a substantial change in circumstances that necessitated a modification of custody and that it was in the best interests of her child to modify the existing custody arrangement. Consequently, we affirm the trial court's denial of Mother's petition for modification of custody. Because the child support order that Mother seeks to modify was based on two children and one child has since died, we remand the case to the trial court for a determination of Mother's child support obligation.
Mother and William Thomas Wheeler ("Father") divorced in May 1998. Custody of the couple's two minor children, R.W. — born September 22, 1994 — and N.W. — born December 12, 1996 — was initially awarded solely to Mother, and Father was permitted parenting time.1 Additionally, the court ordered Father to pay child support in the amount of $157 per week for the two children.
In January 2001, the court issued an Agreed Order establishing that Mother and Father would share joint custody of the children. Under this arrangement, the children were to reside with Father, but Mother was to have "liberal possession of the children as can be agreed between the parties." Appellant's App. p. 12. The Agreed Order also specified that Father was current on child support, that his obligation under the court's previous order would terminate, and that the parties would "not be required to pay child support to the other until further order of the court." Id.
In August 2003, the court ordered Mother to pay $40 per week in child support. The order provided, however, that this amount would abate 50% during all full weeks when she has the children for regular parenting time. Additionally, the order specified:
Mother shall not be the regular child care provider for the minor children, but Father shall allow Mother the right of first refusal whenever he needs a baby-sitter. Father's only obligation in this regard is to try and contact Mother to ask if she wishes to babysit the minor children.
Id. at 16. Finally, the order transferred the case to Marion County because both parties now resided in that county. Mother failed to follow the Bartholomew County court's order regarding the payment of child support. In December 2003, she was found in contempt and ordered to serve thirty days in jail, which the court suspended on the condition that she make regular child support payments of $40 plus arrearage payments of $20.
Because Mother again failed to comply with a court order requiring her to pay child support and because Mother refused to return N.W. to Father at the end of her parenting time weekend, Father filed a Motion for Rule to Show Cause in Marion Superior Court. In that motion, Father brought to the attention of the court that R.W. died on February 16, 2004, by means of accidental drowning. R.W. was in Mother's care at the time of his accidental death. While Father's motion was pending, Mother filed a Verified Petition for Modification of Custody and Child Support. The trial court held a hearing on both motions in August 2004.
At the hearing, Mother alleged that Father was abusive toward R.W. and N.W. In support of this allegation, Mother testified about a painting R.W. had given her for Valentine's Day 2003, on the back of which was scrawled, Id. at 68. She also testified that she observed a red mark on N.W.'s forehead and an egg-like swelling on the top of his scalp and that N.W. told her that Father's mother had punched him in the head. A month after Mother made these observations, N.W. began complaining about headaches, blurred vision, and dizziness, so Mother scheduled a doctor's appointment for N.W. Mother testified that Father failed to take N.W. to the appointment. Mother also complained that Father would tape record or listen in on her telephone conversations with N.W., that Father allowed other people to care for N.W. after school instead of allowing her to do so, and that Father denied her parenting time on many occasions. Additionally, Mother's mother testified that Father told N.W. that his mother was going to jail.
Mother submitted two Child Support Obligation Worksheets to the trial court. The first worksheet calculated Father's child support obligation to be $150.60 per week if she were to be granted custody of N.W. This calculation was made using pay periods during which Father was paid overtime wages. The second worksheet calculated Mother's child support weekly obligation at -$14.15 if the trial court permitted Father to retain custody of N.W.2
Father testified that N.W. is doing well in school; specifically, Father highlighted that N.W. received all A's and B's on his most recent report card and that there have been no reports of behavioral problems. As to Mother's allegations of abuse, Father admitted that he had disciplined his step-daughter with a belt on one occasion in 1996, but he reported that he rarely spanks his children. Father also testified that Mother has raised numerous complaints of abuse by Father with Child Protective Services, but each complaint has been deemed unsubstantiated. Father noted that the allegations of abuse usually coincided with his efforts to collect child support. Additionally, during the hearing Father raised concerns about the level of supervision and the home environment Mother provides. These concerns stemmed from R.W.'s drowning while in Mother's care and the amount of smoking and alcohol consumption in Mother's home.
Eulalio DeLeon and Brenda McGinley, two employees of an investigative firm hired by Father, also testified. DeLeon testified, over Mother's objection, that he had collected the garbage from Mother's residence for two consecutive weeks and found it to contain several empty alcohol bottles and packs of cigarettes, rolling papers, what appeared to be a stem from a marijuana plant, fast food wrappers, and frozen dinner packages. McGinley testified regarding a report she prepared, which indicated neither Mother nor her current husband has a valid driver's license and that Mother's current husband has a criminal record that includes felony convictions for burglary and theft and charges of possession of marijuana and hash. Mother objected to the admission of the report.
The trial court denied Mother's petition to modify custody, found Mother in contempt of court, and sentenced Mother to ninety days in the Marion County Jail on the contempt finding with execution to be held in abeyance until further order of the court. The trial court's August 4, 2004, Order contained no ruling on Mother's petition to modify child support. Mother filed a motion to correct errors, in which she challenged the trial court's denial of her petition for modification of custody and the lack of a ruling on her request for modification of child support. The trial court denied the motion to correct errors, and Mother now appeals.
Mother contends that the trial court erred by denying her petition for modification of custody and by failing to rule on her petition for modification of her child support obligation. As to her motion for modification of custody, Mother maintains that there was a substantial change in three of the statutory factors considered when modifying custody and that it was in N.W.'s best interests for custody to be modified. Mother also asserts that the trial court erroneously admitted evidence of items found in her garbage and her current husband's criminal history.
In general, we review custody modifications for abuse of discretion, with a "preference for granting latitude and deference to our trial judges in family law matters." Apter v. Ross, 781 N.E.2d 744, 757 (Ind.Ct.App.2003) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)), trans. denied. When reviewing a trial court's determination to modify custody, we may not reweigh the evidence or judge the credibility of the witnesses. Rea v. Shroyer, 797 N.E.2d 1178, 1181 (Ind.Ct. App.2003). Rather, we consider only the evidence most favorable to the judgment and any reasonable inferences from that evidence. Id.
In the initial custody determination, both parents are presumed equally entitled to custody, but a petitioner seeking subsequent modification bears the burden of demonstrating that the existing custody arrangement should be altered. Apter, 781 N.E.2d at 757-58. A court may not modify a child custody order unless (1) the modification is in the best interests of the child; and (2) there is a substantial change in one or more of the factors a court may consider under Indiana Code § 31-17-2-8 when it originally determines custody. See Ind.Code § 31-17-2-21. The factors listed in section 8 are as follows:
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...and Decision I. Standard of Review We review a trial court's admission of evidence for an abuse of discretion. Leisure v. Wheeler, 828 N.E.2d 409, 417 (Ind. Ct.App.2005). We will conclude that a trial court abused its discretion when its decision is clearly erroneous, or against the logic a......
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