Marriage of Richardson, In re

• Court: Indiana Supreme Court
• Writing for the Court: DICKSON; SHEPARD; DeBRULER; DeBRULER
• Citation: Marriage of Richardson, In re, 622 N.E.2d 178 (Ind. 1993)
• Decision Date: 27 October 1993
• Docket Number: No. 48S05-9310-CV-1179,48S05-9310-CV-1179
• Parties: In re the MARRIAGE OF Ranaye (Morgan) RICHARDSON, Appellant, and Daniel G. Morgan, Appellee.

Page 178

622 N.E.2d 178

In re the MARRIAGE OF Ranaye (Morgan) RICHARDSON, Appellant and Daniel G. Morgan, Appellee.

No. 48S05-9310-CV-1179.

Supreme Court of Indiana.

Oct. 27, 1993.

David W. Stone IV, Stone Law Office & Legal Research, Ronald L. McNabney, Anderson, for appellant.

Steven C. Smith, Patrick R. Ragains, Steven C. Smith, A Professional Corp., Anderson, for appellee.

On Petition To Transfer

DICKSON, Justice.

In this child custody modification case, the issue is whether the trial court's determination should be overturned on appeal as an abuse of discretion. Our preference for granting latitude and deference to our trial judges in family law matters is here confronted by a claim of inadequate proof of changed circumstances.

When the parties' marriage was dissolved in 1988, the agreed order provided for joint custody of twin eight-year-old boys, with the mother providing their primary residence. Three years later, the father sought modification of the custody order. The trial court conducted an extensive hearing and entered an order that preserved joint legal custody but ordered that the children should henceforth reside primarily with the father, with corresponding changes in the visitation arrangements and support obligations of the parties. The Court of Appeals reversed, finding that the trial court abused its discretion. Richardson v. Morgan (1993), Ind.App., 612 N.E.2d 157.

Where there is joint legal custody with one parent providing a child's primary residence, a trial court may modify that residence "only upon a showing of changed circumstances so substantial and continuing as to make the original residential arrangement unreasonable." Lamb v. Wenning (1992), Ind., 600 N.E.2d 96, 98.

To determine that an existing custody order is "unreasonable," a trial court is not required to find that the present custodian is unfit or that the existing order is harmful to the welfare of the child. This determination may include all relevant factors, including changes in circumstances of both the custodial and noncustodial parents and the resulting and potential advantages and disadvantages to the child. The change in conditions must be judged in the context of the whole environment.

Id. at 99.

In a custody modification matter, the standard used by a trial court and that used on appellate review are not the same. Burrington v. Howard (1988), Ind.App., 521 N.E.2d 371, 372. The trial judge is entrusted with the responsibility for determining whether there has been a change in circumstances so substantial and continuing as to make the existing order unreasonable. Id. In the appellate review of such determinations, as in other cases tried by a court without a jury, the judgment should not be set aside "unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Ind.Trial Rule 52(A). The applicable standard of review is well settled:

We do not weigh the evidence nor judge the credibility of witnesses, but rather consider only that evidence most favorable to the judgment, together with reasonable inferences which can be drawn therefrom. If, from that viewpoint, there is substantial evidence to support the finding of the trial court, it will not be disturbed, even though we might have reached a different conclusion if we had been the triers of fact.

Meehan v. Meehan (1981), Ind., 425 N.E.2d 157, 161 (citations omitted). If there is any evidence or legitimate inferences to support the finding and judgment of the trial court, this Court will not intercede and use its judgment as a substitute for that of the trial court. Poret v. Martin (1982), Ind., 434 N.E.2d 885, 887; Marshall v. Reeves (1974), 262 Ind. 107, 113, 311 N.E.2d 807, 811.

The trial court received three days of testimony from numerous witnesses including a clinical psychologist and a clinical social worker. The trial court also interviewed the boys in chambers.

Ranaye contends that there was no evidence of substantial change in circumstances. ¹ Daniel argues that a substantial and continuing change in circumstances was shown primarily in the mother's conduct in discouraging or preventing the boys from participating in sports, especially those in which he was their coach. Ranaye perceived the boys to be under emotional stress and pressure under Daniel's coaching. She was displeased that the boys' athletic practice schedule resulted in their spending time with the father in excess of the visitation schedule incorporated in the dissolution decree. On occasions she prohibited the boys' attendance at games or practice on days other than regular visitation. As discord increased, she preferred to prohibit the boys from participating in basketball altogether, but eventually agreed to permit their involvement if Daniel were not their coach.

Daniel further defends the trial court determination by emphasizing the boys' preference to reside with him rather than with Ranaye. The psychologist consulted to facilitate and assist the parties with joint custody testified that the boys very strongly wanted to live with their father, primarily because of their interest in and desire to participate in athletics. Because the boys also had favored living with their father at the time of the parties' dissolution, such preference arguably, would not constitute any change in circumstances. In addition, the desire of a young child to live with one parent has been held to be insufficient standing alone to constitute a substantial and continuing change. Elbert v. Elbert (1991), Ind.App., 579 N.E.2d 102, 107. Here, however, the boys were almost twelve years old, and the passage of years was accompanied by the corollary growth and development of the boys' physical capabilities as well as advanced interests in athletic endeavors in common with the coaching activities and interests of...