Lovko v. Lovko

• Decision Date: 29 December 1978
• Docket Number: No. 2-1177A440,2-1177A440
• Citation: 179 Ind.App. 1,384 N.E.2d 166
• Parties: Kenneth R. LOVKO, Appellant, v. Rita H. LOVKO, Appellee.
• Court: Indiana Appellate Court

Page 166

384 N.E.2d 166

179 Ind.App. 1

Kenneth R. LOVKO, Appellant, v. Rita H. LOVKO, Appellee.

No. 2-1177A440.

Court of Appeals of Indiana, Second District.

Dec. 29, 1978.

David F. McNamar and Michael R. Franceschini, Steers, Sullivan, McNamar & Rogers, Indianapolis, for appellant

Gregory F. Hahn, William T. Rosenbaum, Dillon, Hardamon & Cohen, James A. Briggs, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Petitioner-appellant Kenneth R. Lovko (Husband) appeals from a judgment awarding custody of three minor children to Rita H. Lovko (Wife), claiming the court used an improper standard in awarding custody, the attorneys fees granted Wife were excessive, and that certain other errors were committed by the trial court.

We affirm.

FACTS

On June 4th, 1975, Husband and Wife were granted a dissolution of marriage by a decree of the trial court which incorporated most provisions of a settlement agreement reached by the parties. Specifically, regarding custody of the couple's four minor children ¹ the agreement contained the following language:

That the custody of the above four (4) children is hereby granted to the Petitioner (Husband) until the end of the next school year being in June of 1976, at which time said custody shall be reviewed by the parties thereto.

Accordingly the Decree contained the following provisions:

That the Petitioner (Husband) is hereby awarded temporary care and custody of said minor children until the end of the On April 21, 1977, Husband petitioned that the custody of the children be reviewed, and during June of 1977, evidence was heard.

next school year which will be June of 1976.

At the hearing, Husband's initial witness was Robert Pearce, a child psychiatrist who, after interviewing all the parties, testified that custody of the children should remain with the Husband.

During his testimony the following exchange took place:

Wife's Counsel: Is it possible to infer, Doctor, that Dr. Lovko preferred your participation over Dr. Lawrence, because . . .

Husband's Counsel: Judge, I'm going to object to the form of questions calling for sheer speculation on the part, calling for the mental process of Dr. Lovko and not this witness.

Court: Overruled, you may answer.

Q: No, my question, is it not possible that Dr. Lovko preferred your participation and evaluation of himself because of his past involvement with you, and chose to ignore the proposed participation of Dr. Lawrence?

Witness: That is possible.

Later, during the cross-examination of one of Wife's witnesses, Patricia Albin (Albin), the following exchange occurred:

Husband's Counsel: How about the last time, to your knowledge, Rita went to one of Ken, Jr.'s football games or athletic events?

However, that question was excluded by the court because it had nothing to do with the witness's assessment that Wife had a good relationship with her children.

Still later, when Husband attempted to testify regarding conversations with third parties regarding Wife's emotional problems, the trial court rejected such testimony on the basis that Husband was testifying as a party and not as an expert witness. ²

At trial, Wife produced an expert witness who indicated that her previous problems with alcoholism had likely been overcome, a view shared by other witnesses who had participated with her in Alcoholics Anonymous. Additional witnesses indicated that she had developed a [179 Ind.App. 6] close relationship with her three youngest children during the past year and was able to care for the children.

At the conclusion of the hearing the judge indicated that he would consider a report prepared by the Marion County Domestic Relations Counselling Bureau in making his determination of custody. This was objected to by the Husband's counsel on the grounds that he had not had the opportunity to inspect the report or examine the person making it.

The judgment of the trial court awarded custody of the three youngest children to the Wife and gave the Husband custody of the eldest boy. It contained, Inter alia, these findings:

# 9. That the Respondent has not remarried and occupies a condominium on the west side of Indianapolis within about one mile of the Petitioner's residence.

# 10. That the mental and emotional health of the Respondent Wife has been restored to within normal limits.

# 13. That the minor daughters, Jennifer and Kathryn, have adjusted well to the care furnished by their mother since the summer of 1976.

# 17. That it is in the best interest of the minor child, Ken, Jr., to be in the custody of the father, Ken R. Lovko.

# 18. That it is in the best interest of the minor child, Jennifer, to be in the custody of the mother, Rita H. Lovko.

# 19. That is is in the best interest of the minor child, Theodore, to be in the custody of the mother, Rita H. Lovko.

# 20. That it is in the best interest of the minor child, Kathryn, to be in the custody of the mother, Rita H. Lovko.

The Husband was also ordered to pay Wife's attorneys fees in the sum of $2,000.00.

ISSUES

Husband raises these issues:

I. Did the trial court use the proper standard in awarding custody of the children to the Wife?

II. Did the trial court abuse its discretion in the admission or exclusion of certain evidence, specifically:

(a) Was it error to allow Dr. Pearce to speculate why he was asked to examine the Lovko family?

(b) Did the trial court erroneously confine the scope of Husband's cross-examination of Albin?

(c) Should Husband have been allowed to give medical testimony based upon hearsay concerning his Wife's mental condition?

III. Was it error for the trial court to consider the Counselling Bureau report?

IV. Were the findings of the trial court supported by the evidence?

V. Were the attorneys' fees excessive?

DECISION

ISSUE ONE Did the trial court use the proper standard in awarding custody of the children to the Wife?

PARTIES' CONTENTIONS Husband maintains that the trial court improperly treated the custody hearing as an initial custody determination rather than a modification and thus used the wrong burden of proof. Indiana law, he claims, requires that post-dissolution custody determinations be modification hearings under Ind.Code 31-1-11.5-22, and the standard should be "substantial change of circumstances," a finding the court does not make.

Wife replies that the settlement agreement incorporated in the decree provided for a temporary custody award and therefore the trial properly used a standard of the best interests of the children in awarding custody. And, under any standard there is sufficient evidence to affirm the custody "modification".

CONCLUSION The trial court properly used the standard of the best interests of the children in awarding custody to the Wife.

The ultimate question here is a face-off between which of two standards should be used by a trial judge in awarding custody subsequent to a divorce decree which contains an agreed temporary custody award. Should he measure his decision in terms of the best interests of the children as in an initial custody award (Ind.Code 31-1-11.5-21) or should the test be the substantially changed circumstances test (Ind.Code 31-1-11.5-22(d)).

Although the Uniform Marriage and Divorce Act, ³ upon which the Indiana Act is based, (see Covalt v. Covalt (1976), Ind.App., 354 N.E.2d 766) applies the "best interest of the child" test when determining custody initially Or in a modification hearing, the Indiana legislature adopted a more stringent test as to modification. Ind.Code 31-1-11.5-22(d), unlike the Uniform Act, provides:

The court in determining said child custody, shall make a modification thereof only upon A showing of changed circumstances so substantial and continuing as to make the existing order unreasonable. (Emphasis supplied) (hereinafter referred to as 22(d))

Obviously the Indiana legislature sought to discourage modification attempts, perhaps as we earlier suggested, "because of the extent to which former spouses use the modification process repeatedly for vexatious purposes only." Covalt, supra.

The only provision of the Indiana Dissolution Act (Ind.Code 31-1-11.5-1 et seq.) which discusses temporary or provisional custody orders, Ind.Code 31-1-11.5-7(e), does provide that any temporary order ". . . Shall terminate when the final decree is entered subject to the right of appeal or when the petition for dissolution is dismissed" (emphasis added), but this provision is of no help in determining whether custody under the circumstances before us is an initial custody determination or a modification.

It is true, however, that in their settlement agreement incorporated into the Decree, the parties agreed that Husband should have temporary custody of the four children until the end of the next school year in June, 1976, at which time that order would be reviewed, and no appeal was taken from that decision. Also, when the custody hearing was finally held in July of 1977 the trial court clearly indicated that he was considering this as an initial custody determination and not as a modification, a position objected to by neither party. ⁴ So in this posture there would appear to be nothing to modify, only a further act to be done to carry out the agreement of the parties and settlement agreements are favored by the Dissolution Act. Ind.Code 31-1-11.5-10(a) reads:

To promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for the maintenance of either of them, the disposition of any property owned by either or both of them and The custody and support of their children. (Emphasis added) (hereinafter referred to as 10(a))

But have the parties in pursuing their right to make an agreement under 10(a) so as to postpone a decision as to permanent custody subsequent to the Decree brought themselves in conflict with 22(d)?...