Leohr v. Leohr, 1--174A5

• Decision Date: 18 September 1974
• Docket Number: No. 1--174A5,1--174A5
• Citation: 316 N.E.2d 400,161 Ind.App. 514
• Parties: Linda Louise LEOHR, Plaintiff-Appellant, v. Thomas Edward LEOHR, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 400

316 N.E.2d 400

161 Ind.App. 514

Linda Louise LEOHR, Plaintiff-Appellant, v. Thomas Edward LEOHR, Defendant-Appellee.

No. 1--174A5.

Court of Appeals of Indiana, First District.

Sept. 18, 1974.

Edwards & Fountain, Spencer, for plaintiff-appellant.

J. David Holt, Bloomfield, for defendant-appellee.

LOWDERMILK, Judge.

Plaintiff-appellant (Linda) was granted an absolute divorce from defendant-appellee (Thomas) on September 27, 1968. Linda was granted custody of the only child born to the parties (Eddie), with Thomas being granted visitation rights. On October 2, 1972, Thomas filed a petition to modify the divorce decree, asking that he be granted custody of Eddie. This petition was denied on November 22, 1972, with custody remaining with Linda.

On May 22, 1973, Thomas filed a second petition to modify the divorce decree and again requested that he be granted custody of Eddie. This petition was granted by the court on July 23, 1973, and removed custody of Eddie from Linda and established the custody in Thomas.

Linda timely filed her motion to correct errors which was by the court overruled.

The first and primary issue raised in this appeal is whether the trial court erred when it changed permanent custody of Eddie from Linda to Thomas. Linda urgently contends that the decision of the trial court is not supported by the evidence and is contrary to the evidence.

It is well settled in Indiana that matters of custody of minor children in divorce actions are governed by the best interests of the children involved. The primary consideration is with the welfare of the children and not with the desires and wishes of the parents. Wible v. Wible (1964), 245 Ind. 235, 196 N.E.2d 571.

An examination of the record in this cause discloses that the trial judge fully recognized that his decision must reflect the best interests of Eddie rather than any desires or wishes of Linda and Thomas. On several occasions the trial judge stated that his primary goal was to reach a decision which was for the welfare of Eddie.

In a petition to modify custody of a minor child the burden is always upon the petitioner to show that a substantial change in conditions since the last order of the trial court had occcurred which necessitated a change of custody. It is the duty of the trial court to hear all of the evidence, to judge the credibility of witnesses, and make a determination of whether there has been a substantial change in conditions which, in the judgment of the trial court, requires a change in custody. Marshall v. Reeves (1974), Ind., 311 N.E.2d 807.

The trial judge in the case at bar heard a great deal of evidence at the modification hearing, as well as evidence in the earlier modification hearing in November of 1972. Thus, it is readily apparent that the trial court was well versed in the facts involved in this case and the circumstances of the parties. In his findings on the second petition to modify the trial judge indicated that his decision was a difficult one and that he was required to make his judgment based on facts which were presented to him rather than on any personal feelings which he might have. The primary basis for the decision of the trial court in changing custody from Linda to Thomas was that since the first modification hearing in November of 1972, a substantial change in conditions had occurred. The court indicated that the basic change in condition was a deterioration in the stability of Linda, as exhibited by her violent temper and her demeanor in court and the resultant effect that such instability would have on Eddie. There was evidence in the record that Linda had exhibited a violent temper on several occasions.

The first occasion occurred in the winter following the November, 1972, hearing. At this time Linda was married to one William Godwin, who testified that Linda and her mother quarreled violently and in his presence Linda drove her car in a totally reckless manner causing Eddie and another child to be thrown to the floorboards of said car as a result of the reckless driving. It can readily be seen that such behavior presented a serious danger to Eddie.

Following a separation from William Godwin, and shortly prior to their divorce hearing, another exhibition of violent temper by Linda was established by the evidence. In this instance Linda was in her car with Eddie being a passenger. An argument ensued between Linda and William Godwin, who was standing outside the car, and Linda apparently attempted to run down William Godwin and Mr. Godwin was able to save himself from injury only by jumping onto the trunk of his car, which was struck by the car which Linda was driving. Again, it can be seen that such violent displays of temper seriously endangered Eddie, who was a passenger in...