Marshall v. Reeves, 2--273A50

CourtCourt of Appeals of Indiana
Citation304 N.E.2d 879
Docket NumberNo. 2--273A50,2--273A50
PartiesMartha Lou (Reeves) MARSHALL, Appellant, v. Ronald David REEVES, Appellee.
Decision Date26 December 1973

Phillip H. Minton, Thomas J. Jeffers, Indianapolis, for appellant.

Lawrence H. Hinds, Martz, Beattey, Hinds & Wallace, Indianapolis, for appellee.

WHITE, Judge.

The basic question in this case is whether it is in the best interest of a five year old child (Andrea) of divorced parents who has been with her mother all her life to change for custody to the father.

The divorce action was brought by the father (Ronald) on June 3, 1970. Although his complaint charged the mother (Martha) with unspecified cruel and inhuman treatment it also alleged that she was a fit and proper person to have custody of Andrea and prayed that she be granted custody. Martha defaulted and the divorce was granted to Ronald. The decree contains no express custody or support provision but does incorporate and approve a property settlement agreement which gives Andrea's custody to Martha with Ronald to have her every other weekend. Ronald was to pay $12.00 per week support through the Clerk's office.

Although there was recurring friction between the parties they were apparently content with that arrangement from the time the agreement was made (September 23, 1970) and the divorce granted (October 21, 1970) until Martha left the Indianapolis area with Andrea sometime after Ronald last had her on the April 15-16, 1972, weekend. She gave Ronald no notice of her departure until she mailed a letter to his parents hearing a Plainfield, Indiana, postmark dated April 26, 1972, saying she was marrying an unnamed man who lived out of the state '& by the time you read this I will have moved', but she gave no address. In response to a letter written to her by Ronald's mother and addressed care of her mother, Martha wrote to Ronald's mother (under a postmark of May 12, 1972) that she was in Phoenix, Arizona, but gave no street address. She protested that Ronald was in arrears on support, that $12.00 weekly support was not enough, and that an annual return trip to Indiana would be the best she could do to provide Ronald with visitation. Ronald thereafter learned her Phoenix street address through the telephone company's information service and verified it by his call to her.

He thereupon filed his 'Petition for Rule to Show Cause, Modification of Divorce Decree and for Change of Custody,' which alleged Martha's marriage, removal and the consequent denial of his right of visitation, characterized as placing Martha in contempt of court. It alleged that '(t)he change in conditions of the child's care, custody and control is of such decisive character as to make necessary the court's changing her custody from defendant, in the best interest, welfare and happiness of said child.'

On the same day, May 25, 1972, the court, pursuant to the prayer of the petition, ordered Martha 'to appear before this Court and bring Andrea Jean Reeves to this Court on the 14th day of June, 1972, at 1:30 o'clock P.M., to show cause why she should not be punished for Contempt of this Court; why the support order of October 21, 1970 should not be dissolved; and the custody of the child of the parties changed from Defendant to Plaintiff.' The order and petition were served by mailing copies to Martha at her Phoenix address. On June 13, 1972, an attorney appeared for her and obtained an indefinite continuance. The attorney thereafter filed a motion to dismiss, a motion for a more definite statement, and a combined answer and counter petition praying that Ronald be held in contempt for failure to pay support, to increase the order from $12.00 to $25.00 per week, and for an allowance of $510.00 for travel expenses and attorneys' fees. Although the petition for expenses was set forth hearing on September 5, 1972, and reset for August 17, 1972, there is no record that it was ever heard or that any other action was ever taken on it. On August 28, 1972, Martha's attorney filed a request for permission to withdraw her appearance which was granted on September 5, 1972, at which time (pursuant to setting made August 9, 1972) the court also held a hearing on Ronald's petition. Martha was not present either in person or by attorney and was defaulted.

At the hearing Ronald's attorney made an opening statement which concluded thus:

'It is my position, Your Honor, that because of the obvious contempt which this defendant has for this court and for the orders of this court, and for the best interests and welfare of this child, the court should find that there is a decided change of circumstance, and that the defendant should not only be held in contempt of court for removing the child from the state and the jurisdiction of the State of Indiana without notifying the court or the child's father, but that the custody should be changed to the father and a decree prepared which he can take to Phoenix, Arizona, to take custody of the child.'

The evidence consisted of the testimony of Ronald and Ronald's mother. In addition to the facts already recited there was evidence to establish that:

Ronald and his mother were unable to talk to his daughter by telephone in Phoenix because they were always told she was not there. When Andrea was here Ronald had a close relationship with her. He lives now with his parents but if he gets Andrea's custody he will rent an apartment and be with her except during working hours when he would put her in a nursery school which he believes would benefit an only child. Ronald thought Martha sent Andrea to her mother too much. One time when he went to pick up Andrea for the weekend the man who is now her husband was standing in the hallway in his jockey shorts with lather on, getting ready to shave, and Andrea was watching him. She was four at the time, but she was old enough to comprehend what was going on. At another time he observed that man's car parked at Martha's apartment at 4:30 A.M. At another time he learned from the family doctor's office that Martha was still obtaining birth control pills from the doctor. Martha did not like to work and falsely stated to her father that Ronald had got her fired from a law office job. There was also one time before Martha left when she would not permit Andrea to be with Ronald on the weekend allegedly because of illness, although she intimated that more money might make the visitation possible.

At the conclusion of the hearing on September 5, 1972, the court made an entry reading, 'Custody ordered to Father (Order to Follow)'. On September 8, 1972, a formal order bearing date of September 5, 1972, was signed and filed. The findings and judgment therein are as follows:

'and the Court having heard the evidence of the witnesses and examined the Exhibits now finds for Petitioner and against Defendant, that Defendant is in contempt of this Court: (1) for removing the child of the parties, Andrea Jean Reeves, born November 3, 1967, without the Court's permission; (2) for refusing visitation of said child with her father, as ordered by the Court on October 21, 1970; (3) for refusing visitation of said child with her father from June 19, 1972 to July 15, 1972, as ordered by the Court on October 21, 1970; (4) for failing and refusing to appear in this Court, as ordered on May 25, 1972;

'And, the Court further finds that it is in the best interest and welfare of said child that her exclusive care, custody and control be removed from Defendant and placed in Petitioner.

'IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that: (1) Defendant be and she is hereby held in contempt of this Court; (a) for removing Andrea Jean Reeves from the jurisdiction of the Court, without approval of the Court; (b) for failing and refusing to grant Petitioner visitation privileges of said child, as ordered by the Court; and (c) for failing and refusing to appear before this Court, as ordered by the Court; (2) Defendant is ordered forthwith to return Andrea Jean Reeves to the jurisdiction of this Court; (3) Petitioner is a fit and proper person to have the exclusive care, custody and control of said child; (4) it is in the best interest and welfare of said child that custody of Andrea Jean Reeves be and the same is ordered placed in Petitioner, Ronald David Reeves; (5) the support order heretofore entered on October 21, 1970, is hereby dissolved as of Sept. 5, 1972.'

On November 6, 1972, Martha, appearing by her present counsel of record, filed her 'Motion to Correct Errors and to Set Aside Default.' 1 The motion was eventually overruled and this appeal followed. The errors alleged in the motion (more succinctly stated in our words) are:

1 and 3. The decision is not supported by sufficient evidence and is contrary to law in that there is no evidence of change in conditions warranting a change in custody or that a change would be in the child's best interest.

2. Martha was denied a fair trial by Ronald's misconduct in paying his support payments to his attorney (instead of to the clerk) thereby depriving Martha of the means necessary to attend trial.

4. The record is replete with hearsay.

5. Martha's parents will provide funds to guarantee Martha's presence if the court grants a new hearing.

6. Martha is not in contempt for moving to Phoenix because she had legal advice it did not violate an order of court.

7. A request for enlargement of time in which to file affidavits pursuant to Trial Rule 59(D).

By subsequent filings the motion to correct errors was supported by:

1. A writing whereby Martha's parents 'covenant and agree that they will provide . . . Martha . . . with the funds necessary to allow her to attend any hearing which may be granted . . ..'

2. The affidavit of an Indianapolis attorney (not an attorney of record) who read the divorce decree and advised Martha 'that there was...

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