Marriage of Davis, In re, 3-182A14

• Decision Date: 10 November 1982
• Docket Number: No. 3-182A14,3-182A14
• Citation: 441 N.E.2d 719
• Parties: In re The MARRIAGE OF Sheila Hamanaka DAVIS, Petitioner-Appellant, and Dennis L. Davis, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 719

441 N.E.2d 719

In re The MARRIAGE OF Sheila Hamanaka DAVIS, Petitioner-Appellant and Dennis L. Davis, Respondent-Appellee.

No. 3-182A14.

Court of Appeals of Indiana Third District.

Nov. 10, 1982.

Robert Leirer Justice, Logansport, for petitioner-appellant.

Richard C. Wolter, Gary, for respondent-appellee.

HOFFMAN, Presiding Judge.

The marriage of Sheila Hamanaka Davis and Dennis L. Davis was dissolved on February 26, 1980, at which time Sheila was granted custody of the parties' two minor children. On July 10, 1981, Dennis filed a petition to modify the custody order, which, after a hearing, was granted. Sheila now brings this appeal from the order granting a change in custody and alleges the following errors:

(1) the trial court abused its discretion in modifying custody because there was insufficient evidence of a substantial, continuing change of circumstances occurring since the original custody order thereby rendering that order unreasonable;

(2) the trial court abused its discretion in modifying custody because there was insufficient evidence that a modification was in the children's best interest;

(3) that it was contrary to law for the trial court to consider a possible out-of-state move as a significant factor in the modification of custody; and

(4) that it was contrary to law for the trial court to refuse to consider the racial characteristics and ethnic heritage of the children in modifying custody.

IC 1971, 31-1-11.5-22(d) (Burns 1980 Repl.) provides, in part:

"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 custody order unreasonable."

Sheila contends that there was no evidence of a change in circumstances, no evidence of a continuing change, and no evidence that the status quo was unreasonable.

A long line of Indiana cases clearly distinguishes between standards governing trial courts and appellate courts in custody modification cases, leaving to trial courts the question of whether there has been a change in conditions, while limiting appellate courts to a determination of whether the evidence could serve as a rational basis for the trial court's findings. Marshall v. Reeves (1974), 262 Ind. 107, 311 N.E.2d 807, supplemented as to costs, 262 Ind. 403, 316 N.E.2d 828. Questions of child custody involve sound judicial discretion rather than a hard and fast rule of law. The reviewing court will not disturb the judgment of the trial court unless the record discloses a clear abuse of discretion. Renard v. Renard (1956), 126 Ind.App. 245, 132 N.E.2d 278. In order to constitute an abuse of discretion in respect to a custody modification, the trial court's decision must be one that is clearly against the logic and effect of facts and circumstances before the court. Marshall, supra; Needham v. Needham (1980), Ind.App., 408 N.E.2d 562.

The record in this instance reveals that Sheila had moved several times and that at the time of the modification hearing, she and the children had no permanent home. When Sheila was maintaining an apartment, it was in a state of disarray, to the extent that the children had difficulty finding their clothing. On occasion, the children were left in the apartment with a babysitter and no substantial food could be found in the apartment. They were also sent to school with inadequate lunches. Sheila's methods of discipline were questionable, such as sending the children off to school carrying their coats and shoes.

Additionally, Sheila had taken the children to New York for an extended vacation. She then sent their belongings to New York and informed Dennis that she and the children were moving to New York. It was not until after these proceedings were initiated that she petitioned the court for permission to remove the children.

On the other hand, Dennis had maintained the same home, in the same neighborhood, that the parties had had before their marriage was dissolved. Although Dennis did not have custody of the children, they spent approximately 50% of their time with him. The children also stayed with Dennis when they were ill. Dennis took care of their day-to-day needs such as haircuts, clothing, swimming lessons, bicycles, and tuition. When the time came to leave Dennis and return to Sheila after a visit, one child often threw a tantrum when Sheila came to pick the children up. During the course of the proceedings, Dennis married a woman who had assisted him in caring for the children for almost two years.

In sum, the evidence established that from the time of the original custody award, there had been a change in circumstances. Sheila's residential status changed frequently, while Dennis's remained stable. Her care of the children regarding their food, clothing, and discipline became questionable, whereas at the time of the original decree, Dennis did not anticipate these problems. This change was obviously continuous, since the problems continued throughout the years from the original award to the modification and in fact at the time of the modification hearing Sheila was intending yet another change in residence. The status quo was unreasonable in light of the fact that the children's care and well-being and Dennis's continued extensive visitation were all brought into question by Sheila's actions.

On appeal, the reviewing court may not substitute its judgment for that of the trial court with respect to whether a change of custody should have been granted. Larkin v. Larkin (1975), 164 Ind.App. 46, 326 N.E.2d 618. The record in this instance discloses evidence and reasonable inferences which serve as a rational basis to support the decision of the trial court. Sheila has not established that the trial court abused its discretion in modifying the original custody award.

Sheila also argues that the trial court abused its discretion in modifying custody because there was insufficient evidence that a modification was in the children's best interests.

The guiding principle in determining whether to modify the custody provisions of a dissolution decree is the best interests of the children. Franklin v. Franklin (1976), 169 Ind.App. 537, 349 N.E.2d 210. When it can be shown by the party petitioning for modification that such changes have taken place that the prior order is no longer in the best interests of the child, then the prior order must be modified. Landing v. Landing (1972), 152 Ind.App. 660, 284 N.E.2d 857.

The evidence which was discussed previously provides sufficient support for the trial court's determination that it was in the children's best interests that they live with their father. Dennis had established a stable home for the children and no evidence was presented which gave rise to any question concerning the care and well-being of the children when they were with Dennis. Dennis is the one who cared for them in sickness; he saw to it that they were groomed; and even Sheila testified that the children requested visits with their father and enjoyed his new wife's cooking. Dennis intended to remain in the community where the children were established. Sheila had already sent some of the children's belongings to New York.

Again, Sheila has not met her burden of demonstrating that the trial court abused its discretion in awarding custody of the children to Dennis.

Next, Sheila contends that it was contrary to law for the trial court to consider a possible out-of-state move as a significant factor in the modification of custody. While Sheila is correct in her assertion that a custodial parent's move out of state is not, per se a substantially changed circumstance as to make that parent's continued custody unreasonable, that is not to say that such a move should not be considered as a factor in making the custody decision. In fact, our Supreme Court has held that such a move may be considered.

"We are not hereby advocating a principle that such a unilateral denial of visitation rights of another, by removal from the jurisdiction of the court, is ipso facto a reason for change of custody; and we further affirm the principle that a mere finding that an offending party's disobedience of a court order is contemptuous is not tantamount to a finding of unfitness of such party as affecting his or her right of custody. Such factors are not necessarily determinative of the best interests and welfare of a child; however, such...