Marshall v. Reeves

• Decision Date: 07 June 1974
• Docket Number: No. 674S112,674S112
• Citation: 311 N.E.2d 807,262 Ind. 107
• Court: Indiana Supreme Court
• Parties: Martha Lou (Reeves) MARSHALL, Defendant-Appellant, v. Ronald David REEVES, Plaintiff-Appellee.

Page 807

311 N.E.2d 807

262 Ind. 107

Martha Lou (Reeves) MARSHALL, Defendant-Appellant, v. Ronald David REEVES, Plaintiff-Appellee.

No. 674S112.

Supreme Court of Indiana.

June 7, 1974.

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

Lawrence H. Hinds, Indianapolis, for plaintiff-appellee.

HUNTER, Justice.

This cause arises upon petition to transfer and concerns the modification of a child custody decree. The parties were divorced on October 21, 1970. Custody of the minor daughter was awarded the defendant-mother with bi-weekly visitation rights in the plaintiff-father. The plaintiff was further ordered to pay $12.00 per week child support money through the Clerk's office.

Without notice to plaintiff, the defendant left Indianapolis with the child in April, 1972. Plaintiff's parents subsequently received a letter postmarked Phoenix, Arizona, dated April 26, 1972. The defendant stated she was now remarried and intended to keep the child with her. In a second letter, defendant protested that the plaintiff was delinquent in his support payments and an annual trip to Indiana was the only visitation period she could arrange for plaintiff.

Thereafter, plaintiff filed a 'Petition for Rule to Show Cause, Modification of Divorce Decree and for Change of Custody' and alleging a decisive change of conditions warranting a modification of the original custody order in the best interests of the child. The defendant defaulted in the modification proceeding, and the following judgment was entered by the trial court:

'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 the Petitioner, Ronald David Reeves; (5) the support order heretofore entered on October 21, 1970, is hereby dissolved as of Sept. 5, 1972.'

The Court of Appeals, Second District, reversed, 304 N.E.2d 879, 882.

We grant transfer and adopt in pertinent part the dissenting opinion of Presiding Judge Buchanan as follows. However, before reciting such portions of that opinion here, we deem it necessary to point out what we are not holding in the instant case. We believe that violation of a custody decree alone, nothing else appearing (which is not the case here), is not a sufficient basis for modifying a child custody decree for it does not, by itself, establish what will serve the best interests of the child which must always be the paramount concern of the court. We reiterate that 'the custody of children cannot be used as a means of punishing the parents. It is the children's welfare--not the parents'--that must control the actions of the court.' Wible v. Wible (1964), 245 Ind. 235, 237, 196 N.E.2d 571, 572.

We turn now to the proper disposition of the case at bar:

'The Order of the trial court changing custody of Andrea from Martha to Ronald is supported by this evidence and reasonable inferences therefrom:

'1. During the period of time subsequent to the divorce decree and prior to Martha's departure to parts unknown, repeated disturbances occurred when Ronald attempted to exercise visitation privileges. On one such occasion Martha refused to permit Ronald to take Andrea and sought to bargain his visitation rights for more support payments.

'2. Martha was dismissed from her job--and expressed to Ronald her lack of ambition and unwillingness to work.

'3. On another occasion, Ronald arrived at Martha's apartment early in the morning to pick up Andrea, and there observed, in the presence of the child, a man (Marshall) clad only in his undershorts preparing to shave. Prior to this, Ronald had observed Marshall's car parked outside Martha's apartment at 4:30 A.M.

'4. Approximately five months prior to the modification hearing, Martha took Andrea and accompanied a man, presumably Marshall, to Phoenix, Arizona. Testimony at trial did not clarify when or if Martha married Marshall. However, in her affidavit subsequently filed with the court Martha admitted that she did not remarry until approximately three months after the move to Phoenix. Martha never notified Ronald of the child's whereabouts.

'5. When Ronald's investigation finally revealed Andrea's whereabouts, he was not allowed to talk with her.

'6. At the time of hearing, Ronald had neither seen nor talked to Andrea since she was removed to Arizona, even though the divorce decree gave him visitation rights every other weekend.

'7. Following the divorce, Ronald had received a college degree in business administration with prospects of promotion and augmented income in his job.

'8. Ronald resided with his parents, who expressed interest in providing a suitable home for Andrea.

'In this state, case after case by our Supreme Court iterates and reiterates the rule of appellate practice that a trial court's decision as to modification of custody rights will be affirmed unless a clear abuse of discretion is demonstrated by the record. Rose v. Rose (1971), 256 Ind. 440, 269 N.E.2d 365; Bowles v. Bowles (1970), 254 Ind. 536, 261 N.E.2d 228; Winkler v. Winkler (1969), 252 Ind. 136, 246 N.E.2d 375; Mickels v. Mickels (Mikels v. Mikels) (1967), 248 Ind. 585, 228 N.E.2d 20; McKay v. Carstens (1952), 231 Ind. 252, 108 N.E.2d 249; Cox v. Cox (1973), Ind.Ct.App., 292 N.E.2d 817 (transfer denied June 8, 1973); Smitley v. Egley (1973), Ind.Ct.App., 294 N.E.2d 640; Landing v. Landing (1972), Ind.Ct.App., 284 N.E.2d 857; Hall v. Hall (1962), 134 Ind.App. 256, 185 N.E.2d 542; Gatchel v. Gatchel (1961), 132 Ind.App. 56, 175 N.E.2d 887; Renard v. Renard (1956), 126 Ind.App. 245, 132 N.E.2d 278.

'The effect of the majority opinion is to abandon the 'abuse of discretion' standard as the rule of appellate review.

'In its stead they have substituted the 'decisive change in conditions' standard described in Adams v. Purtlebaugh (1951), 230 Ind. 269, 102 N.E.2d 499, and Wible v. Wible (1964), 245 Ind. 235, 196 N.E.2d 571 (and other cases), which is an accepted rule governing the trial court in its determination of modification. Differently stated, the majority have used the trial court 'decisive change in conditions' rule as a fulcrum to weigh the evidence.

'By so doing fuel is fed into the flames of the apparent confusion over the respective roles played by these two rules--one designed for appellate tribunals appeal and the other for trial courts. See, e.g., Note, 47 Ind.L.J. 129 (1971).

'In truth there need be no such confusion. A long line of Indiana cases clearly distinguishes these two standards, leaving to the trial court the question of whether or not there has been a decisive change in conditions while limiting the appellate tribunal to a determination of whether or not the evidence could serve as a rational basis for the court's findings. Indicative of the distinction is Mickels v. Mickels (Mikels v. Mikels), supra:

"We are not critical of the language used in Brickley v. Brickley, supra, Wible v. Wible, supra, and Adams v. Purtlebaugh, supra, indeed, we subscribe thereto; however, in determining the import and the decisive character of the evidence, the trial judge before whom the parties and the witnesses appeared, is clothed with the obligation and responsibility of evaluation. If there is any evidence, or legitimate inferences therefrom, to support the finding and judgment of the trial court, this Court may not intercede or interfere and exercise or use its judgment as a substitute for that of the trial court.' (Emphasis supplied.) 248 Ind. at 586, 228 N.E.2d at 20.

'See also, Perdue v. Perdue (1970), 254 Ind. 77, 257 N.E.2d 827; Bowles v. Bowles, supra; Winkler v. Winkler, supra; Cox v. Cox, supra; Renard v. Renard, supra.

'The decided cases on this subject do not justify the conclusion that this or the Supreme Court has or will independently determine whether there has been a 'decisive change of circumstances.' The Supreme Court has, however, reversed custody modifications if a combination of certain deficiencies were present: (1) petitioner's failure to allege a decisive change in conditions; (2) a total absence of evidence tending to prove such changes; and (3) no findings by the trial court that there existed such changes in conditions which warranted modification.

'See, e.g., Adams v. Purtlebaugh, supra; Wible v. Wible, supra; Morrison v. Morrison (1960), 130 Ind.App. 270, 164 N.E.2d 113; Abair v. Everley (Everly) (1959), 130 Ind.App. 192, 163 N.E.2d 34.

'Absent the presence of such deficiencies, which is not true in the case before us, the abuse of discretion rule requires us only to determine if the record discloses evidence or reasonable inferences therefrom, which would serve as a rational basis for the finding by the trial court that decisive changes have occurred, i.e., that the trial court abused its discretion.

'The record in this case contains ample and sufficient evidence from which the trial court could logically conclude that a decisive change of conditions affecting Andrea's welfare had occurred which warranted changing custody.

'The record either directly or inferentially shows that Andrea was uprooted from an environment in which she and her father enjoyed a continuing relationship of warmth and affection which provided emotional stability for the child. This vital connection was abruptly severed by Martha without explanation.

'This and other...