Marriage of Saunders, In re, 32A01-8603-CV-56

• Decision Date: 20 August 1986
• Docket Number: No. 32A01-8603-CV-56,32A01-8603-CV-56
• Parties: In re the MARRIAGE OF Karen Ann SAUNDERS, Respondent-Appellant, and Ronald Ralph Saunders, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 419

496 N.E.2d 419

In re the MARRIAGE OF Karen Ann SAUNDERS Respondent-Appellant, and Ronald Ralph Saunders Petitioner-Appellee.

No. 32A01-8603-CV-56.

Court of Appeals of Indiana First District.

Aug. 20, 1986.

Vernon J. Petri, Vernon J. Petri, P.C., Indianapolis, for respondent-appellant.

Thomas G. Brenton, Brenton & Brenton, Danville, for petitioner-appellee.

STATEMENT OF THE CASE

RATLIFF, Judge.

Karen Ann Saunders (Wife) appeals the decree of dissolution of marriage entered by the Hendricks County Superior Court No. 1, challenging the award of custody of the parties' minor children to Ronald Ralph Saunders (Husband) and the order requiring her to pay child support of Fifteen Dollars ($15.00) per week per child. We affirm the award of custody but reverse the support order.

FACTS

Husband and Wife were married on April 8, 1967, and separated on May 3, 1985. Their marriage was dissolved by decree entered November 8, 1985. Custody of the parties' four (4) children, ages 15, 12, 5, and 3, was awarded to Husband. Wife was ordered to pay Fifteen Dollars ($15.00) per child per week support for the children. During the trial, the judge conducted an in camera interview with the parties' twelve year old daughter, Tammy, in the absence of the parties and their attorneys.

Husband is an electrician whose annual gross income is approximately $40,000. Also, Husband is engaged in raising, selling, and racing quarter horses which has been successful financially. He also engaged in the sale of scrap copper for some twenty (20) years, and in 1984, earned approximately $3000 from this endeavor.

On the other hand, Wife, a high school graduate, has no specialized training, skill, or occupation. From 1967 until 1970, she was employed as a receptionist for a doctor. She left employment when her first child was born and did not return to the labor market until 1981. She is employed by Crown Services, a temporary employment service. She works from thirteen to twenty hours per week at $4.65 per hour, earning from $60.00 to $90.00 per week. She also has engaged in the sale of Tupperware.

Other relevant facts are stated in our discussion of the issues.

ISSUES

The issues raised in this appeal are re-ordered and restated as follows:

1. Did the trial court err in awarding custody of the children to Husband based only upon an extra-judicial inquiry by the court?

2. Was the trial court guilty of a manifest abuse of discretion in ordering Wife to pay child support of $15.00 per week per child?

DISCUSSION AND DECISION

Issue One

The controversy here concerns the award of the three younger children to Husband. It was agreed that Husband should have custody of the parties' eldest daughter, fifteen year old Tracy.

In determining child custody,

"[t]he court shall consider 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 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."

Indiana Code section 31-1-11.5-21. The court, however, is not limited to a consideration of the factors enumerated in the statute, but may consider all relevant factors bearing upon the best interest of the child. D.H. v. J.H. (1981), Ind.App., 418 N.E.2d 286. The crucial consideration in any child custody determination is the best interest of the children. Wright v. Wright (1984), Ind.App., 471 N.E.2d 1240, trans. denied; Whitman v. Whitman (1980), Ind.App., 405 N.E.2d 608. Since determination of child custody is committed to the sound discretion of the trial court, we presume that court reached a correct result and will reverse a custody award only for manifest abuse of discretion. Wright, at 1242. We will find manifest abuse of discretion only if the trial court's custody order is clearly against the logic and effect of the facts and circumstances before the court. Hoyle v. Hoyle (1985), Ind.App., 473 N.E.2d 653; In re Vasoli (1985), Ind.App., 471 N.E.2d 1178, trans. denied. In reviewing the trial court's determination, we neither weigh the evidence nor judge credibility of witnesses, for that is particularly the function of the trial court. Truden v. Jacquay (1985), Ind.App., 480 N.E.2d 974; D.H. v. J.H., at 296.

Wife contends the trial court based its custody decision solely upon the basis of the in camera interview with Tammy, and that there is insufficient evidence to support the decision. We disagree.

There is specific statutory authorization for in chambers interview of a child in a custody determination. Ind.Code Sec. 31-1-11.5-21(d) provides:

"(d) The court may interview the child in chambers to ascertain the child's wishes. The court may permit counsel to be present at the interview, in which event a record may be made of the interview and the same may be made part of the record for purposes of appeal."

This court has stated:

"The provision for in-chambers interviews with minor children allows the judge to fulfill his duty without placing the child in an adversative position between battling parents. It is for the judge to determine the weight and credibility to be accorded a child's disclosures, and it is obvious that this determination is facilitated by assurances to the child that his conversations will be strictly confidential.

"[T]he statute gives the trial court full discretion in deciding whether counsel should be present or whether the interview should be recorded, and we believe this is sound policy.

"It is true that a judgment based solely upon an extra-judicial inquiry can not stand. Watkins v. Watkins (1943), 221 Ind. 293, 47 N.E.2d 606. However, in the very special case of child custody or visitation the situation is somewhat different and the Indiana Supreme Court has addressed the issue decisively in Blue v. Brooks (1973), 261 Ind. 338, 303 N.E.2d 269. The Court reasoned that confidential interviews between the court and children should be encouraged in the interest of better enabling the trial court to ascertain the best interests of the child without the constraints of open court with parents and witnesses present. The Court held that so long as the trial court's decision does not rest primarily upon the results of a private interview, it is not error to exclude the results of the interview from the record. Id., 303 N.E.2d at 272. Upon examination of the entire record, the Court found substantial evidence to support the trial court's judgment and therefore no error in excluding the results of the interview. Id."

Truden, at 978-79.

The evidence here showed that Wife often was away from the home until late hours while engaged in her Tupperware business, and that Husband spent extensive time caring for the children. Wife had serious disciplinary problems with the children to the extent of physical fighting with Tracy. Wife did not keep the house in good order, and, in fact, the home was such a mess the children were embarrassed to bring friends home. In view of this evidence, it is clear the trial court's custody determination did not rest primarily upon the private interview. Our examination of the entire record revealed substantial evidence to support the trial court's custody determination. The court did not abuse its discretion.

Issue Two

Like custody determinations, the amount of a child support order is relegated to the sound discretion of the trial court, and will be overturned only if that court abused its discretion or acted contrary to law. Wright, at 1243; Hoyle, at 656; Vasoli, at 1180. We may not reweigh the evidence nor judge the credibility of witnesses in reviewing a child support order. Helms...