Marriage of Ferguson, In re
| Decision Date | 23 February 1988 |
| Docket Number | No. 02A04-8707-CV-221,02A04-8707-CV-221 |
| Parties | In re The MARRIAGE OF Gregory D. FERGUSON, Appellant (Defendant Below), and Kathleen R. Ferguson, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
Daniel M. Graly, Thomas J. Markle, Barrett & McNagny, Fort Wayne, for appellant.
Louis L. Bloom, Fort Wayne, for appellee.
Gregory Ferguson appeals an Allen Circuit Court order awarding custody of his children to Kathleen Ferguson and ordering him to pay child support. We affirm.
Greg and Kathy Ferguson were married on June 14, 1980. They had two children, Jennifer, born August 2, 1983, and Sara, born May 6, 1985. On September 29, 1986, Kathy moved out of the couple's Fort Wayne home and re-located in Indianapolis. Four days later, Greg filed a petition to dissolve his marriage to Kathy. Greg was granted temporary custody of the children pending the final decree of dissolution.
A hearing was held on April 20, 1987. The court issued a decree on May 7 awarding custody to Kathy and ordering Greg to pay support in the amount of $600 per month plus 20% of any bonus Greg might receive. Greg subsequently perfected this appeal. Additional facts are stated in our discussion of the issues.
The issues to be resolved on appeal are:
1) Did the trial court improperly use its award of custody to punish Greg for perceived misconduct which occurred during the time his petition for dissolution was pending?
2) Did the trial court abuse its discretion by awarding custody to Kathy?
3) Did the trial court abuse its discretion by including in its support order a percentage of any discretionary bonus received by Greg?
When reviewing both custody and support orders, we apply a manifest abuse of discretion standard. Means v. Means (1987), Ind.App., 511 N.E.2d 323, 324; Fox v. Fox (1984), Ind.App., 466 N.E.2d 789, 790. We therefore may not reverse a trial court's determination unless it is clearly against the logic, facts and circumstances before the trial court. Fox, supra at 790. Deference must be given to the trial court because it is in a position to judge the demeanor and credibility of witnesses. Id.
ISSUE ONE:
Greg first challenges the custody order on the basis that it was made to punish him for perceived misconduct during the time his divorce petition was pending. We agree with Greg that "a decree of custody may not be made or changed in order to punish a parent." Clark v. Clark (1980), Ind.App., 404 N.E.2d 23, 34. "It is the children's welfare--not the parents'--that must control the actions of the court." Wible v. Wible (1964), 245 Ind. 235, 237, 196 N.E.2d 571, 572. Greg specifically asserts that the language of the trial court's custody order indicates an intent to use custody as a means of punishment. The order provides in pertinent part as follows:
... From these statutorily mandated considerations, the Court has concluded that each parent is and would be a proper and suitable custodial parent, but that the Petitioner father of said children, from the beginning of the dissolution proceedings and virtually throughout the pendancy of the action, has consistently and concertedly attempted to dictate the terms of Respondent's access to said children for visitation purposes, has attempted to minimize any contact she was entitled to, refused more than minimal visitation which he required to be in his presence or in the presence of others provided by him until the Respondent secured a Court order providing her with specific visitation, and thereafter it can be concluded from the evidence that Petitioner continued on a deliberate course calculated to negatively affect the relationship of the minor children with their mother, the Respondent. That, in spite of Petitioner's testimony, that he believes Respondent to be a capable and effective mother to the children. Other testimony provided by Petitioner of and concerning Respondent, which he may believe but which was not supported by any evidence, suggests, along with evidence of his manner of dealing with the Respondent in the presence of the children, a disregard for the strong relationship between Respondent and the children, and demonstrates a strong effort to undermine it.
(R. 103-104) Greg focuses on the court's use of the phrase "but that" in arguing that his perceived misconduct was the decisive factor in the court's decision to award custody to Kathy. We disagree. The court carefully considered the evidence and merely expressed its concern that Greg's behavior constituted an attempt to affect adversely the girls' relationship with their mother, a relationship which, regardless of custody, needed to be nurtured rather than hindered. We therefore are unpersuaded that the court's order was penal in nature.
ISSUE TWO:
Greg next contends the trial court abused its discretion by awarding custody to Kathy. The trial court must award custody according to the best interests of the children. Fox, supra at 791. In determining the best interests of the children, the court entertains no presumption favoring either parent. IND.CODE 31-1-11.5-21(a). Rather, the court must consider all relevant factors including:
(1) The age and sex of the child;
(2) The wishes of the child's parent or parents;
(3) The wishes of the child;
(4) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(5) The child's adjustment to his home, school and community; and
(6) The mental and physical health of all individuals involved.
Greg asserts specifically that the first four factors favor neither him nor Kathy but that the final two factors favor him as custodian. The court was careful to indicate, however, that it had considered all of the factors in making its decision. The evidence shows that the children were females under the age of four, that both parents desired custody, that the children had positive relationships with both their mother and their father, and that the three-year-old expressed a desire to live with her mother. Greg argues, however, that Kathy has exhibited a lack of emotional stability and that removing the girls from their present environment would have a destabilizing effect on them.
Dr. Leib, a psychologist, testified that Kathy has a tendency to deflect or subvert unpleasant feelings. Kathy left the family residence on September 29 following an argument with Greg. The record indicates that this was not her first departure. On one other occasion, Kathy left home and took Jennifer to a local motel where they stayed overnight. The two returned home the following day, however. Greg relies heavily on the fact that Kathy attempted suicide ten years prior to the dissolution proceedings. We are unconvinced, however, that such a remote and isolated incident merits a reversal of the trial court's custody award, and we note that the evidence is conflicting regarding any subsequent suicide attempts by Kathy. In addition, numerous witnesses testified that Kathy has demonstrated effective parenting skills and that she continued to relate well to her children despite the demise of the marriage.
Greg also argues that awarding custody to Kathy would in effect uproot the children from the familiar environment of their Fort Wayne home. Dr. Leib's testimony reveals that both Jennifer and Sara are adaptable and well-adjusted children who have developed satisfactorily while in their father's custody. There was no evidence, other than Greg's self-serving testimony, that the children would be unable to adjust to new environs or would be affected unduly by this change.
We are sensitive to each parent's desire to be with the children. It is apparent that the children enjoy a positive relationship with both Kathy and Greg, which makes the court's task additionally difficult. The trial court determined that the interests of the children would best be served by awarding custody to Kathy. Based on the evidence found in the record, we cannot say that the...
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