Marriage of Salas, In re

• Decision Date: 26 April 1983
• Docket Number: No. 1-182A14,1-182A14
• Citation: 447 N.E.2d 1176
• Parties: In re the MARRIAGE OF Annia SALAS and David Salas David SALAS, Appellant, v. Annia SALAS, Appellee.
• Court: Indiana Appellate Court

Page 1176

447 N.E.2d 1176

In re the MARRIAGE OF Annia SALAS and David Salas

David SALAS, Appellant, v. Annia SALAS, Appellee.

No. 1-182A14.

Court of Appeals of Indiana,

First District.

April 26, 1983.

Michael R. Sutherlin, Indianapolis, for appellant.

Pat Goodspeed, Knightstown, for appellee.

ROBERTSON, Presiding Judge.

Dr. C. David Salas (David) appeals the trial court's custody award and distribution of property in the dissolution of his marriage with Annia Salas (Annia). We affirm in part and reverse in part.

David and Annia began dating in St. Louis, Missouri while Annia was married to someone else. She had six children from this marriage. Annia is from Costa Rica but now is an American citizen. David, who is from Peru, was studying English at St. Louis University. Annia was divorced in 1974, while David completed his medical education in ophthalmology. On April 5, 1975, David married Annia. English is not the native language of either party which has led to great difficulty in examining the record.

The couple relocated in New Castle in order to allow David to begin his ophthalmology practice. Although Annia had some computer keypunch training, she never worked in that field. She began training as an ophthalmologist's assistant when she became pregnant. At David's request, she remained at home with their new child and did not pursue this training. Another child was also born of this marriage.

Annia filed her divorce petition on June 25, 1979. The trial court awarded her temporary custody of the children and ordered David to pay the household expenses and one hundred dollars per week for temporary support and maintenance. During the pendency of the divorce, both parties were cited for contempt numerous times.

The trial court awarded Annia custody of the children, the house, $30,000, and $5,800 in attorneys' fees. Upon appeal, David alleges the trial court erred in its determination by awarding custody, that the division of marital property and the award of attorneys' fees were improper, and that the trial court should have granted his motion for a psychiatric evaluation.

David first attacks the propriety of the custody award. He argues that Annia is emotionally unstable and should not have been awarded custody. At trial, David established that Annia violated the trial court's custody order by removing the children from the state during the pendency of this action, that she had returned the custody of her six children from her prior marriage to her ex-husband, and that she had undergone comestic surgery on her face, abdomen, and breasts, which David argues is indicative of a narcississtic personality. He contends that these facts demonstrate Annia's emotional instability. David also alleged that Annia had been involved in a lesbian relationship, that she kissed and fondled the genitals of their infant son, and that she used a vulgar nickname for her oldest son from her previous marriage. David asserts that the trial court erred by awarding Annia custody in light of these facts and allegations.

David argues his superior academic background and his economic earning ability will enable him to be a better parent. Our standard of review in child custody determinations precludes reversal unless a manifest abuse of discretion is shown. To constitute an abuse of discretion, the decision must be clearly against the logic and effect of the facts and circumstances before the court. In Re Marriage of Myers, (1979) Ind.App., 387 N.E.2d 1360.

While David can be proud of his academic achievements, there was other evidence before the trial court to support its determination. Testimony was presented that David had been involved in an incestuous relationship with his stepdaughter and that he had made numerous sexual advances towards her, that he had anally raped Annia, that he had fathered an illegitimate child by the family maid while growing up in Peru, and that he had been involved in an affair with another woman during his marriage to Annia. Both parties contend that the outrageous allegations were fabricated to discredit them. It is a well established judicial standard that we will not reweigh evidence or judge the credibility of witnesses upon review. Wireman v. Wireman, (1976) 168 Ind.App. 295, 343 N.E.2d 292.

David essentially argues that the trial court did not make a good decision in awarding custody. Our review of the record indicates that the trial court was not afforded the luxury of making a good decision its only choice was between two poor candidates with limited social mores. We cannot conclude that the trial court abused its discretion in awarding custody to Annia.

During this action, David moved for a psychiatric evaluation of Annia which the trial court denied. David argues the trial court erred by denying his motion because there was medical evidence introduced which indicated that Annia had a hysterical personality. David argues that the medical evidence combined with the other evidence of Annia being raped by her father as a child, the extensive comestic surgery, the allegations of child molestation, and that she had given up custody of her six children of her prior marriage constituted sufficient evidence for the trial court to grant his motion.

David concedes that the statutory language ¹ authorizing a mental evaluation is discretionary. He argues that the trial court abused its discretion in light of the surrounding circumstances.

We cannot conclude the trial court erred by denying the motion. While there was a medical report before the trial court which diagnosed Annia as having a hysterical personality, the report was made pursuant to an incident which Annia characterized as anal rape. She testified that she was very embarrassed by this and would not allow any further examination. As we stated previously, to constitute an abuse of discretion, the trial court's decision must be clearly against the logic and effect of the facts and circumstances before the court. In Re Marriage of Myers, supra. This is an extremely difficult burden to overcome. Annia was able to explain the incidents which David claims as the basis of his motion. We remain unpersuaded that the trial court abused its discretion.

David also challenges the trial court's award of $85.00 per child per week as being excessive. David argues the amount of $170.00 per week is beyond his means and that Annia has an equal duty to support their children.

Child support is ordered pursuant to the guidelines of Ind.Code 31-1-11.5-12. An award of child support is a discretionary act of the trial court which will not be disturbed unless an abuse of discretion is clearly shown. Geberin v. Geberin, (1977) 172 Ind.App. 255, 360 N.E.2d 41. The purpose of a child support order, within the limitations of available resources, is to provide the same standard of living for the minor children that they would have enjoyed but for the dissolution of the marriage. Wendorf v. Wendorf, (1977) 174 Ind.App. 172, 366 N.E.2d 703.

The trial court was presented with evidence showing that David earned approximately $90,000 in 1977. In 1978, David established a professional corporation and transferred $25,000 in assets to the corporation. The corporation grossed $148,834.19 and David declared $51,459.33 as his income. Annia was virtually unskilled with very limited experience in keypunch operations and as an ophthalmological assistant. David had also previously paid $100 per child per week for approximately two years prior to a final disposition. In light of these facts and the purpose of this statute, the trial court did not abuse its discretion in making this award.

David also attacks the trial court's award of $5,800 in attorneys' fees to two law firms which had represented Annia prior to this appeal. David asserts that the amount is unjust and unreasonable. He argues that the trial court should evaluate the quality of the legal services and the size of the marital estate as well as the number of hours expended in determining fees.

David correctly asserts that an hourly rate is not the sole...