Marriage of Lopp, In re

• Decision Date: 10 May 1977
• Docket Number: No. 1--776A117,1--776A117
• Citation: 173 Ind.App. 74,362 N.E.2d 492
• Parties: In re the MARRIAGE OF Judith Gayle (Forman) LOPP, Appellant, and James F. Forman, Appellee.
• Court: Indiana Appellate Court

Page 492

362 N.E.2d 492

173 Ind.App. 74

In re the MARRIAGE OF Judith Gayle (Forman) LOPP, Appellant and James F. Forman, Appellee.

No. 1--776A117.

Court of Appeals of Indiana, First District.

May 10, 1977.

Rodney H. Grove, Grove, Miller & Lantz, Evansville, for appellant.

Howard P. Trockman, Kenneth W. Macke, Trockman & Flynn, Evansville, for appellee.

CASE SUMMARY

LOWDERMILK, Judge.

Respondent-appellant Judith Gayle Lopp (Judith) appeals from the trial court's modification of its decree in the dissolution of the marriage of Judith and petitioner-appellee James F. Forman (Forman).

Forman petitioned the trial court to modify its decree so as to grant him custody of the parties' two minor daughters. Judith sought to have Forman held in indirect contempt and moved the court for attorney's fees. The trial court held hearings on these matters and entered the following orders:

I.

'Come now the parties in person and by counsel, and the Court having heard and considered the evidence of the parties, having considered the arguments and briefs of counsel for the parties concerning certain tendered exhibits, having taken this matter under advisement and now being duly advised in the premises FINDS that the Plaintiff's objections to said tendered exhibits should be sustained, that the circumstances of the parties have materially and substantially changed, and that the best interests of the children of the parties will be served by granting the general care, custody and control of the parties' minor children to the Father herein.

'IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED by the Court that:

4. The decree of divorce herein, as heretofore modified, is hereby further modified; the Defendant is hereby granted the general care, custody and control of the parties' two (2) minor children, Kristi Gayle Forman and Amy Lynn Forman, subject to the rights of the Plaintiff to visitation and temporary custody as hereinafter set out; and the Defendant's obligation to pay support to the Plaintiff for said minor children is now hereby terminated.

II.

'The Court, having had plaintiff's information for contempt, plaintiff's motion for attorney fees and motion to stay execution of judgment and the defendant's response to said motions under advisement, having considered said matters and being duly advised in the premises, now rules as follows:

1. The defendant is not guilty of indirect contempt.

2. Plaintiff's request that defendant pay the costs and attorney fees for services of her attorney during trial and/or appeal is denied.

4. Plaintiff is declared to be a legally indigent person for the purpose of prosecuting an appeal from the judgment of this Court; and the Court appoints Grove and Miller as plaintiff's attorneys for perfecting such appeal, . . . fees of said attorneys to be paid of County funds to the extent that the same is allowed by the State Board of Accounts. * * *'

ISSUES

1. Whether the trial court erred in modifying its decree so as to place the parties' 2. Whether the trial court took judicial notice of the findings and judgment in the dissolution action involving Judith and her second husband.

minor children in the custody of their father.

3. Whether the trial court erred in finding Forman to be not guilty of indirect contempt.

4. Whether the trial court erred in denying Judith's motion for attorney's fees.

5. Whether the trial court erred in denying Judith's request for a new hearing on the ground of newly-discovered evidence.

DECISION

Issue One:

Forman bore the burden of justifying a change of custody. Leohr v. Leohr (1974), Ind.App., 316 N.E.2d 400.

Judith contends that he did not do so and that the trial court therefore erred in its modification of its decree.

In Franklin v. Franklin (1976), Ind.App., 349 N.E.2d 210, 212--213, Judge Lybrook set forth the considerations which are relevant in a case such as the one at bar:

'Examination of Indiana's new Dissolution of Marriage Act . . . is of some assistance in assessing the scope of the trial court's discretion. This Act specifically delineates the factors to be considered by the trial court in determining the best interests of the child. These factors are:

(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) interaction and interrelationship of a 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 . . .

'No cases have yet been reported interpreting these provisions of the Dissolution of Marriage Act. The section dealing with child custody does not specifically provide that a change of conditions must be present before the court can modify the custody decree. The guiding principle in this Act, as under prior decisions, is the best interests of the child. In determining that is in the best interests of the child it is unnecessary to find that the mother is unfit, for the father's position may have improved to the degree that the best interests of the child would dictate that the father have custody of the child . . .

'It is the duty of the trial court to determine whether there was a change in conditions which warranted a change in custody. This court's function on appeal is to examine the decision of the trial court and determine whether the record discloses evidence or reasonable inferences to be drawn therefrom which serve as a rational basis to support the finding of the trial court . . .' (Footnote, citations omitted)

Our examination of the record reveals evidence that: Forman had been married for two years to his second wife who was a full-time housewife; they had a 10-month-old son; for 14 months they had lived in a four-bedroom house located across the street from a school; Forman was slated to become the Evansville area manager for Xerox Corporation; when they had custody of the girls for two weeks, all were happy.

Shortly after the dissolution of Judith and Forman's marriage the girls were dressed nicely when Forman picked them up for his visitation; and they always brought along the extra clothes necessary for their overnight visit. Within the year before the modification hearing they ceased bringing any extra clothes; the clothing which they wore when Forman picked them up was ragged and dirty. The girls needed bathing; their hair required care.

These conditions also existed when the girls stayed overnight with the parents of Judith's second husband. They once bought shoes for the younger girl because she had outgrown the ones she was wearing which hurt her feet. In the shoe store, they discovered that she had been dressed in her older sister's stockings which were too large and so dirty that they had to be discarded and replaced on the spot. The child wept with chagrin.

After May, 1975, Judith began to ignore the house where she lived with the girls, her second husband, and their son; she no longer cooked meals regularly and drank more alcohol. New clothes were discovered in the basement after they had been stuffed into a paper sack where they had mildewed.

There was also evidence of an event which occurred after Judith's separation from her second husband and which for the girls was tragic. Two nights after Judith admittedly engaged in sexual intercourse with another man in her second husband's home, her second husband broke into his home and barged into the master bedroom where the girls were sleeping. Judith emerged from the basement nude from the waist down, unable to walk without bumping into the walls, and with slurred speech. In the basement were empty beer cans, the remains of a joint of marijuana, Judith's jeans, a pair of men's underwear, and--hiding behind the furnace--a man wearing jeans but sans underwear.

The father of Judith's second husband calmed the girls and escorted them to the front door of the house from where Forman took them to his home. From the girls' bed Judith's second husband removed sheets on which there were brownish liquid spots and which witnesses described as unsanitary.

Forman's role in this despicable episode was admittedly passive. Accompanied by two deputies of the Vanderburgh County Sheriff, Judith went to Forman's home and recovered custody of the girls within five hours of the intrusion. Forman returned their clothes later.

The record discloses evidence that Forman had become able to maintain a family home for the girls, evidence of Judith's social activities, and evidence of the declining quality of care of the girls and their home by Judith--all factors which support the trial court's decision. See Franklin v. Franklin, supra; Landing v. Landing (1972), 152 Ind.App. 660, 284 N.E.2d 857.

Judith's brief ignores most of the above evidence and focuses on her version of the deplorable incident as well as evidence that she kept her daughters and their home clean, cooked for them, and clothed them well. Thus her argument amounts to a reassessment of the witnesses' credibility and a reweighing of the evidence. We would direct her to the statement of our Supreme Court in Brickley v. Brickley (1965), 247 Ind. 201, 204, 210 N.E.2d 850, 852, 211 N.E.2d 183:

'While we are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions . . . that we are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did.

'On appeal it is not enough that the evidence might support some other...