Marriage of Myers, In re

• Decision Date: 25 April 1979
• Docket Number: No. 3-578,3-578
• Parties: In re the MARRIAGE OF Bruce B. Myers, Appellant-Petitioner, and Laura J. MYERS, Appellee-Respondent. A 134.
• Court: Indiana Appellate Court

Page 1360

387 N.E.2d 1360

180 Ind.App. 284

In re the MARRIAGE OF Bruce B. Myers, Appellant-Petitioner,

and

Laura J. MYERS, Appellee-Respondent.

No. 3-578 A 134.

Court of Appeals of Indiana, Third District.

April 25, 1979.

Rehearing Denied June 7, 1979.

Steven L. Artusi, Robert F. Gonderman, Gonderman Law Offices, South Bend, for appellant-petitioner.

Leonard V. Campanale, Mishawaka, for appellee-respondent.

STATON, Judge.

After hearing evidence, the trial court issued a decree dissolving the marriage of Bruce Myers and Laura Myers and awarding custody of their son, Keith Allen Myers, to Laura Myers. Bruce Myers appeals the grant of custody. ¹ We hold that the trial court abused its discretion when it acted under a presumption that the mother should have custody of a child upon dissolution of marriage.

At the end of 1974, Bruce and Laura Myers agreed their marriage was irretrievably broken. They agreed that Bruce would file a petition seeking dissolution of their marriage and that he would retain custody of Keith, born April 15, 1973. Bruce filed the petition on December 31, 1974. Hearings were held on five occasions extending over nineteen and one-half months. On November 2, 1977, each side rested. On December 13, 1977, the court entered judgment awarding custody of Keith to Laura.

Bruce filed a motion to correct errors which was denied. Attached to the motion was the sworn affidavit of Thomas C. Sopko, the attorney who represented Bruce at the hearings relating to the dissolution proceeding. Sopko indicated (referring to an attached exhibit) that on November 4, 1977, the court notified the attorneys of its intended disposition of the case, including its decision to award custody of Keith to Laura. On November 7, the next regularly scheduled court date, Sopko conferred with the trial judge, the Honorable William Hosinski. In his affidavit, Sopko averred:

"10. That during the course of said conversation the undersigned advised the Judge of the undersigned's great surprise and concern regarding the Judge's decision on the matter of custody of the one minor child of the parties.

"11. That during the course of said conversation, the Judge, indicated to the undersigned that the only testimony that the Court was actually concerned with was the testimony of the two (2) psychiatrists who testified on the last day of the series of the aforementioned hearings.

"12. That additionally, the Judge also indicated to the undersigned that while the Judge was familiar with the present status of the Dissolution of Marriage Act which sets forth that there no longer is any presumption favoring the mother in the determination of child custody, that he was of the personal opinion that the mother should be given the benefit of the doubt.

"13. That the Judge went on to further relate that it was his personal opinion that in most instances that the mother is the more appropriate custodial parent.

"14. That thereafter, the undersigned and counsel for the Respondent while endeavoring to work out some mutually agreeable visitation program with the child for the Petitioner, had occasion to have a joint conference in the Chambers of the Honorable William Hosinski during which said conversation the undersigned and counsel for the Respondent inquired as to the opinion of the Court with regard to what would be a reasonable visitation program.

"15. That the undersigned suggested to the Court that since his client had, in fact, had custody of the minor child for approximately three and one-half (3 1/2) years, and at all points in time since the Petition for Dissolution of Marriage was filed back in December of 1974, that the undersigned was of the considered opinion that his client should now enjoy at least the same liberal visitation program that the Court had established during the course of the proceeding for the Respondent-mother when she was the noncustodial parent.

"16. That the Judge indicated to the undersigned that this should necessarily not be the case as in the Judge's opinion it had been 'an abnormal situation' wherein the father had custody of the child during the pendency of these proceedings.

"17. That once again, during the course of this second conversation, the undersigned had additional discussions with the Court concerning a father being awarded custody of his children, and again the Judge indicated that it was his opinion that in most situations, the mother is, and should be, presumed to be a more fit and proper person to be the custodial parent."

Sopko's affidavit was attached to Bruce's motion to correct errors pursuant to Ind. Rules of Procedure, Trial Rule 59(D), which provides as follows:

"When a motion to correct errors is based upon evidence outside the record, the cause must be sustained by affidavits showing the truth thereof served with the motion. The opposing party has fifteen (15) days after service of affidavits in which to serve opposing affidavits and fifteen (15) days after service of the motion in which to file cross-errors or in which to assert relevant matters relating to the kind of relief to be granted. The period for filing affidavits may be extended for an additional period not exceeding thirty (30) days for good cause shown or by written stipulation."

Laura's attorney, who was present at one of the conversations between Sopko and the trial judge, failed to file any opposing affidavits.

Sopko's affidavit became part of the record of the proceedings under Ind. Rules of Procedure, Appellate Rule 7.2(A)(1). The trial judge certified the transcript and failed to file opposing affidavits, under AP. 7.2(A)(3)(c).

Under the rules of our courts, if Sopko's affidavit contained erroneous statements, either Laura or the trial judge could have filed opposing affidavits. Since no opposing affidavits were filed, this court must accept as true the facts averred in Sopko's affidavit filed on behalf of Bruce. Roberts v. Watson (1977), Ind.App., 359 N.E.2d 615; Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592. See also Jackson v. State (1978), Ind.App., 372 N.E.2d 1242.

Accepting such facts as true, we must determine whether the trial judge's remarks constitute reversible error in regard to the determination of custody.

Indiana statutory law provides as follows "the court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there shall be no presumption favoring either parent." IC 1971, 31-1-11.5-21(a) (Burns Code Ed., Supp.1977).

The trial judge was bound to render his custody decision in accordance with this provision. However, Judge Hosinski's remarks to Sopko indicated he was unable or unwilling to do so he personally presumed that in most instances the mother is the more fit and proper custodial parent, and that the mother should be given "the benefit of the doubt."

The trial judge's remarks at the close of the evidence provide further support for Bruce's contention that the judge acted with a presumption in favor of the mother. The judge stated:

"There is no doubt in the Court's mind about the competency or the genuine concern of the mother, Laura, or the father to take care of his son. There never was a question with the Court as to if he is a competent person to take care of his child. There has quite candidly been some concern as far as the Court is concerned as to the mother to take care of the child solely because of the evidence that came out of the trial, and you have had the hearing, and we devoted a great number of hours to this case.

"I am certain that neither party here can contend that the Court has handled this in an arbitrary or capricious manner, and we have not done so because of the seriousness of the problems which are involved.

"However, all that necessarily comes down to one question here, and that is the mental capacity of the mother to discharge her duties as a mother, and the Court's decision as to who is the best in the long run for this boy."

The pivotal question the trial judge faced in this case was Not the mental capacity of Laura coupled with who would be best for the child. The question was simply what custodial determination would serve the best interests of Keith, with no presumption favoring either parent. Schwartz v. Schwartz (1976), Ind.App., 351 N.E.2d 900; Buchanan v. Buchanan (1971), 256 Ind. 119, 267 N.E.2d 155.

In light of his own remarks, the trial judge seems to have reasoned as follows: In the case before him, he determined, after resolving his own concern as to Laura's competence, that either parent was competent to take care of Keith. However, there remained a question regarding Laura's mental capacity to discharge her maternal duties. Rather than resolving that question in favor of Bruce's receiving custody of Keith, the judge gave Laura the "benefit of the doubt" and awarded her custody of the child. Apparently the judge would have given Bruce custody of Keith only if he had found Laura mentally incapable of caring for Keith.

A judge who follows such a process abuses the discretion granted him by statute. To be sure, a judge often faces a difficult choice in determining the custodial situation which would serve the best interests of the child. Where one parent is unfit or unable to care for the child, the choice is clear. However, when either parent is competent to care for his or her child, the judge must choose the better of two alternatives. In doing so, he is charged statutorily with looking only to the best interests of the child. He may not indulge in any presumption favoring either parent. He may not give either parent "the benefit of the doubt."

In making a custody determination the court is charged with considering:

"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...