Marriage of Henderson, In re

• Decision Date: 31 August 1983
• Docket Number: No. 4-682A163,4-682A163
• Citation: 453 N.E.2d 310
• Parties: In re the MARRIAGE OF Marilee L. HENDERSON, Appellant (Petitioner Below), and James Edward Henderson, Jr., Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 310

453 N.E.2d 310

In re the MARRIAGE OF Marilee L. HENDERSON, Appellant

(Petitioner Below),

and

James Edward Henderson, Jr., Appellee (Respondent Below).

No. 4-682A163.

Court of Appeals of Indiana,

Fourth District.

Aug. 31, 1983.

Arden W. Zobrosky, Marion, for appellant .

Edward A. Pollen, Seymour, for appellee.

MILLER, Judge.

Appellant Marilee Henderson Rich (Marilee) appeals from the denial of her motion under Ind.Rules of Procedure, Trial Rule 60, for relief from a judgment which had transferred custody of her three minor children to their father, appellee James Edward Henderson, Jr. (James). Marilee's marriage to James was dissolved July 18, 1980, and Marilee was granted custody of the parties' three minor children. (Julie, then age 8, Ann, age 7, and Douglas, age 4) . Little more than a year after the divorce, however, the court granted James's motion to modify the custody decree and awarded custody of the children to him. This modification forms the basis for the instant appeal, wherein Marilee asserts she was not given notice of any hearing on James's petition to modify and, further, that an evidentiary hearing, required by law, was not held. Because the court failed to fix a hearing date on James's motion to modify custody then before it and give notice thereof to Marilee, we must reverse. We also agree with Marilee's contention that a court may not summarily modify custody without evidence supporting such modification.

FACTS

The facts pertinent to this decision are as follows:

Marilee and James were divorced July 18, 1980. On October 3, 1980, the court, after observing that both parents were fit and proper persons to have custody of the three children of the marriage, found it was in the children's best interests to award custody to Marilee while granting liberal visitation privileges to James. The court also ordered James to pay $70 per week child support and one-half of medical, dental, and optical expenses not covered by insurance. The arrangement did not prove to be a smooth one, however, as difficulties in the parties' relationship did not end with their divorce. Indeed, James and Marilee came before the court numerous times during the ensuing months for resolution of disputes concerning visitation, child support, property disposition and attorney's fees. The discord between them escalated in the summer of 1981, causing a flurry of court action which we summarize briefly here:

May 28, 1981--James filed motion for rule to show cause alleging Marilee violated court's decrees in the matters of visitation, child support and property disposition.

June 11, 1981--Marilee filed a motion to modify custody order to cancel James's visitation rights, alleging he was guilty of misconduct so as to distress the children June 18, 1981--After a hearing on James's May 28, 1981, motion for rule to show cause, with both parties present, the court established a new summer visitation schedule giving James custody for one-half the summer and allowing visitation by Marilee and directed the parties to submit additional data before July 3, 1981, regarding James's May 28, 1981, claim alleging Marilee violated the court's order regarding property disposition and child support.

and further asserting the visitation endangered the children's physical health and emotional development.

June 25, 1981--Marilee filed affidavit for attachment alleging that James refused to allow Julie, the oldest of the children, to accompany her for overnight visitation during the period of time James had the children for summer visitation. She claimed James physically assaulted her when she went to pick up the child and asserted that James is mentally unbalanced and is trying to poison the children against her. She prayed for immediate custody and an order requiring James to submit to psychiatric treatment.

July 2, 1981--The court held a hearing on Marilee's affidavit regarding James's visitation violations. After conferring extensively with Julie in chambers, court found that she had chosen freely and voluntarily not to visit Marilee and that no adverse pressure had been placed on the child to influence her decision.

On July 3, 1981, one day after the last-mentioned hearing, Marilee, without the court's or James's knowledge, left Indiana with the parties' two youngest children and her new husband, Daniel Rich, and traveled to Blackwell, Oklahoma, where she established residence . Shortly after Marilee's departure, on July 13, 1981, James filed several documents with the court, including: (1) a belated answer to Marilee's June 11, 1981, motion to modify; (2) a cross motion to modify the court's previous custody order, alleging a change of circumstances and asking the court to grant James full custody of the children and to absolve him of responsibility for support payments to Marilee; (3) a petition for contempt citation, in which he averred that Marilee failed and refused to return the children to him following her weeknight visitation and that, while the children were believed to be in Marilee's custody and control, their whereabouts were unknown; and (4) a proposed rule to show cause regarding the contempt citation. The above-mentioned documents, with the exception of the rule to show cause, contained a certificate of service which averred that James's attorney had served a copy of the pleadings upon Patrick N. Ryan, Marilee's counsel of record, on July 11, 1981.

On July 13, 1981, the date these pleadings were filed, Ryan moved to withdraw his appearance for Marilee, citing the fact that he had been unable to contact her and did not know her whereabouts. On that date, the court, using James's proposed rule to show cause, ordered Marilee to appear at 9 A.M., July 20, 1981 to show cause why she should not be held in contempt for the alleged visitation violations. A copy of this order to appear, as well as the petition for contempt citation and the motion to modify, were served by the Grant County Sheriff's Department on July 16, 1981, by leaving a copy at Marilee's last and usual place of residence in Marion, Indiana.

On July 20, 1981, with only James and his counsel present, the court sustained Ryan's motion to withdraw and found Marilee in contempt. It also set a "return date" for James's motion to modify for August 3, 1981, and ordered service by the sheriff of James's motion at Marilee's last known address. The next entry regarding custody modification was made on August 25, 1981, wherein the court, without holding a hearing or receiving any evidence, sustained James's motion to modify. In doing so, it made the following findings, among others: (1) circumstances had changed, in that the children now desired to live with their father; (2) Marilee had so "misconducted" herself that the well-being and safety of the minor children was in doubt; and (3) "Return on [James's] Motion to modify was not made by August 3, 1981." The court James then located the children in Oklahoma and obtained custody of them in October, 1981, by means of a writ of habeas corpus. On November 24, 1981, Marilee filed her "Motion for Relief from Judgment and to Vacate Judgment" pursuant to T.R. 60. The court thereupon held an evidentiary hearing, during which it heard testimony from Tom Sutton, an acquaintance of Marilee and her new husband, Daniel Rich, who stated he had been given a standard power of attorney by Marilee and Daniel prior to their leaving for Oklahoma. By the power of attorney, Sutton was to take care of the Riches' business and to receive their mail, which was forwarded to his address by the post office. Sutton testified he received mail from the court but did not open it. He did, however, have phone conversations with Marilee and her husband during which he told them of the receipt of the court correspondence. He delivered the mail he received from the court to the Riches when he visited Oklahoma September 16, 1981.

granted custody to James and ordered Marilee to pay $70 per week child support and James's attorney's fees. It also ordered a body attachment on Marilee, which was returned the following day marked "not found in bailiwick."

The trial court denied Marilee's motion, which denial resulted in the instant appeal.

DECISION

We begin our discussion with a brief description of the statutory procedure for modification of custody. Under Ind.Code 31-1-11.5-20, such proceeding is commenced by the filing of a petition. The party opposing the requested modification may file an answer or a counter petition but is not required to do so. ¹ Further, it has been firmly established that once a petition has been filed and the modification action initiated, the trial court's procedural tasks include: (1) setting the cause for hearing; (2) giving appropriate notice to the parties of the hearing date; and (3) conducting a full hearing on the evidence as to change of custody. State ex rel. Davis v. Achor, (1947) 225 Ind. 319, 75 N.E.2d 154; Leohr v. Leohr, (1974) 161 Ind.App. 514, 316 N.E.2d 400; see Hayden v. Hite, (1982) Ind.App., 437 N.E.2d 133. Custody may be changed only upon a showing of changed circumstances "so substantial and continuing as to make the existing custody order unreasonable." Ind.Code 31-1-11.5-22; Poret v. Martin, (1982) Ind., 434 N.E.2d 885, 888 (wherein the court instructed that the change of circumstances must be of a "decisive nature" and the change be "necessary for the welfare of the child."); Smith v. Dawson, (1982) Ind.App., 431 N.E.2d 850; In re Marriage of Ginsberg, (1981) Ind.App., 425 N.E.2d 656.

In the case at bar, Marilee filed a motion to modify the custody order on June 11, 1981, requesting that James's visitation rights be revoked. James requested an extension of time to respond to Marilee's petition, and the trial court granted an extension to July 24, 1981, but set no hearing date on Marilee's motion. On July 13, 1981, James filed his answer to Marilee's petition and his cross motion for...