Maxwell v. Maxwell

• Decision Date: 17 December 1956
• Docket Number: No. 18812,18812
• Citation: 138 N.E.2d 921,127 Ind.App. 266
• Parties: Perry Calvin MAXWELL, Appellant, v. Mary Jane MAXWELL, Robert Kirkland, Opal Kirkland, Appellees. . In Banc
• Court: Indiana Appellate Court

Page 921

138 N.E.2d 921

127 Ind.App. 266

Perry Calvin MAXWELL, Appellant, v. Mary Jane MAXWELL, Robert Kirkland, Opal Kirkland, Appellees.

No. 18812.

Appellate Court of Indiana. In Banc.

Dec. 17, 1956.

Rehearing Denied Jan. 22, 1957.

Vernon E. St. John, Robert E. Peters, Lafayette, for appellant.

Robertson & Moore, Charles H. Robertson, Lafayett, Schortemeier, Eby & Wood, Joseph G. Wood, Indianapolis, for appellees.

PFAFF, Judge.

This appeal originates from a prior divorce action, the facts of which are substantially as follows:

Prior to December 2, 1953, the parties hereto were husband and wife. As the fruits of this marriage they had one child. On said last-mentioned date appellant was granted a divorce from the appellee, Mary Jane Maxwell. The Court gave the care and custody of the minor child of the parties to the appellant and entered its judgment, the pertinent portion of which is as follows:

'* * * And the Court having heard and examined the evidence and being fully advised and satisfied in the premises does now find for the plaintiff that the allegations of his complaint are true and that he is entitled to a decree of absolute divorce as prayed for therein. And the Court further finds that the plaintiff is a fit and proper person to have the care and custody of Charles E. Maxwell, minor child of the parties, born February 26, 1951, and that the defendant shall have the right of visitation of said minor child at reasonable times and places, until further order of the Court.

'It is therefore ordered, adjudged and decreed by the Court that the bonds of matrimony now existing between the said plaintiff Perry Calvin Maxwell and the said defendant Mary Jane Maxwell be and the same are hereby now dissolved, annulled and set aside and to all intents and purposes fully revoked and held for naught and the plaintiff granted an absolute divorce from the defendant; and it is further ordered that the plaintiff is a fit and proper person to have the care and custody of Charles E. Maxwell, minor child of the parties, until further order of the Court; and that the defendant have the right of visitation of said minor child at reasonable times and places until further order of the Court. Costs paid.'

On or about December 8, 1954, appellees filed their verified application to modify the order of December 2, 1953, the substance being----

'That the petitioner, Mary Jane Maxwell, was the defendant in the above entitled cause of action * * *. The petitioner Robert Kirkland, the father of Mary Jane Maxwell, lives at R. R. 1, Rossville, Illinois. The petitioner, Opal Kirkland, is the wife of Robert Kirkland and lives at R.R. 1, Rossville, Illinois. The mother of Mary Jane Maxwell is deceased and she was raised by Opal Kirkland since a small child * * *. That on the 2nd day of December, 1953, this court made and entered a decree of divorce in this cause whereby among other provisions the court granted to the plaintiff custody of the minor child of the parties above named, as parties to the original action; * * * that the defendant was advised by the plaintiff that the plaintiff had alleged in his complaint and had asked in his prayer that the care of the minor child of the parties be left with the petitioners, Robert Kirkland and Opal Kirkland, since the child of the parties, Charles Emmit Maxwell, born February 26, 1951, was then living with the petitioners Robert Kirkland and Opal Kirkland, at Rossville, Illinois, as stated in his complaint, * * *. That this defendant was not aware that custody of the minor child was given to the plaintiff and that the petitioners, Robert Kirkland and Opal Kirkland, were not aware that they were not to continue with the care and raising of said child. * * *. That several months after said divorce had been granted the plaintiff went to Illinois * * * (where he) took over physical custody of said minor child and brought said minor child to Lafayette Indiana; * * *. That the plaintiff no longer maintains a home for the minor child of the parties in Tippecanoe County and that the petitioners are advised that the child is now staying at the home of Virgil and Lora Maxwell in the vicinity of Flora, Indiana; * * *. That the minor child of the parties, Charles Emmit Maxwell, * * * has resided with the petitioners, Robert Kirkland and Opal Kirkland most of his life up to the time he was taken by the plaintiff pursuant to the court order * * *. That the only home said child has ever had has been with his paternal grandparents; that the maternal grandparents have a fine home, financial stability and will provide proper care and guidance for said child; that said maternal grandparents have clothed said child up to the time he was taken by the plaintiff; * * * and are willing to provide the proper home, care and guidance, and supervision for said child subject to the order of this court * * *. That the plaintiff and father of this child never provided a proper home for said child; * * * that he has no proper home, that he does not provide proper care and guidance for said child; that he misrepresented and defrauded this court in obtaining the original custody order. That the mother and petitioner of this child desires that the child be placed with her parents so that said child will have proper home life and proper care * * *. Petitioners request that the decree of this court heretofore entered herein be modified in that the custody of Charles Emmit Maxwell, born February 26, 1951, be awarded to Robert Kirkland and Opal Kirkland until the further order of this court; * * *.'

Upon the issues thus formed the trial court heard evidence and at the conclusion thereof entered its judgment, the pertinent portion of which is as follows:

'* * * The Court having heretofore heard the evidence and argument of counsel and being duly and sufficiently advised in the premises does now find that on December 2, 1953, it was represented to the Court by this plaintiff, that the plaintiff had made arrangements with Robert and Opal Kirkland to keep and maintain the minor child of the parties; that said minor child was to be left with Robert and Opal Kirkland and not be removed for the purpose of residence; that Robert and Opal Kirkland were to care for and educate said child; that when the plaintiff had a proper home he was to have said minor child for certain visits; that the condition and situation of the parties is substantially the same now as it was on December 2, 1953; that for the best interest of the minor child herein the order heretofore entered in this cause on December 2, 1953, * * * should be modified in the following particulars and not otherwise:

'That the plaintiff shall keep and maintain said minor child of the parties in the home of Virgil Maxwell until August 1, 1955, and that on and after August, 1, 1955, the plaintiff shall keep and maintain said minor child of the parties in the home of Robert and Opal Kirkland, Rural Route, Rossville, Illinois, maternal grandparents of said minor child; and that if the plaintiff is living with his brother, Virgil Maxwell, or has a suitable home, he shall have the possession of said minor child for visitation during the month of July and August, 1956, and during the same calendar months of each year thereafter; and that both parties have the right of visitation at reasonable times and places, until further order of the Court.

'It is Therefore ordered, adjudged and decreed by the Court that the plaintiff keep and maintain said minor child of the parties in the home of Virgil Maxwell until August 1, 1955, and that on and after August 1, 1955, the plaintiff shall keep and maintain said minor child of the parties in the home of Robert and Opal Kirkland, Rural Route, Rossville, Illinois, maternal grandparents of said minor child; and it is further ordered that if the plaintiff is living with his brother, Virgil Maxwell, or has a suitable home, he shall have the possession of said minor child for visitation during the months of July and August, 1956, and during the same calendar months of each year thereafter; and it is further ordered that both parties have the right of visitation at reasonable times and places until further order of the Court; and it is ordered by the Court that Perry Maxwell pay one-half of the costs and the petitioner pay one-half of the costs.'

On proper assignment of error appellant makes two contentions here, (1) the decision of the Court is not sustained by sufficient evidence, (2) the decision of the Court is contrary to law. In support of his first contention, appellant asserts that to justify the modification of a decree there must be shown, since the preceding order, 'a change in conditions of such a decisive character as to make it necessary for the welfare and happiness of the child that the requested change in care and custody be made. If such a vital change in conditions is not averred and not shown by the evidence and found by the court, no change in care and custody can be made.' Adams v. Purtlebaugh, 1951, 230 Ind. 269, 102 N.E.2d 499, 501. He also contends that an award of care and custody of the child is charged upon the custodian granting him the control and possession of such child but with a duty of supervision and that the trial court abused its discretion in ordering the appellant to keep and maintain the child in a home not under appellant's control and in a foreign jurisdiction while the care and custody of the child remained in the appellant. Finally, he asserts that the Court, in permitting the removal of a child from its jurisdiction either permanently or temporarily, should require a bond conditioned upon the return of the child in accordance with orders of the Court. Inasmuch as appellant assigns only one error, namely, that the decision of the Court is contrary to law, there is no question as to the facs of this case, and therefore the facts alleged in the appellees' petition to modify can be accepted as...