Meade v. Levett

• Decision Date: 15 August 1996
• Docket Number: No. 50A03-9411-CV-407,50A03-9411-CV-407
• Court: Indiana Appellate Court
• Parties: Teri L. MEADE, Appellant-Respondent, v. Paul Eugene LEVETT, Appellee-Petitioner.

Page 1172

671 N.E.2d 1172

Teri L. MEADE, Appellant-Respondent, v. Paul Eugene LEVETT, Appellee-Petitioner.

No. 50A03-9411-CV-407.

Court of Appeals of Indiana.

Aug. 15, 1996.

K.L. Anderson, Landau, Omahana & Kopka, Merrillville, for appellant-respondent.

Tom A. Black, Plymouth, for appellee-petitioner.

STATON, Judge.

Teri L. Meade ("Meade") appeals the denial of her motion to modify custody and support, the trial court's finding that she was in contempt of court, and its award of damages to her former husband, Paul E. Levett ("Levett"). ¹ She presents several issues for our review which we consolidate and restate as follows:

I. Whether the trial court erred in denying Meade's motion for modification of custody.

II. Whether the trial court erred in excluding a portion of an expert witness' affidavit.

III. Whether the trial court erred in awarding attorney fees to Levett.

IV. Whether the trial court erred in ordering Meade to pay a child support arrearage.

Meade then filed a supplemental brief in which she presents three additional issues which we restate as follows:

V. Whether the trial court had jurisdiction to hear the Motion for a Rule to Show Cause.

VI. Whether the trial court provided Meade with adequate notice of the contempt hearing.

VII. Whether the trial court abused its discretion by finding Meade in contempt and awarding damages to Levett.

We affirm.

The facts most favorable to the judgment indicate that Meade and Levett were divorced in September 1991. Levett was granted physical custody of the parties' two children, W.H. and A.H. After Levett remarried, the parties began arguing over custody of and visitation with the children. Meade alleged that Levett and his new wife were teaching the children to hate her and interfering with her visitation rights, while Levett alleged that Meade was harassing his family and manipulating the children. After a hearing which lasted several days, the trial court determined that it was in the best interests of the children to remain in Levett's custody with Meade retaining liberal visitation rights, including daily telephone visits. Meade appealed that decision.

While the appeal was pending, Meade failed to return W.H. to Levett's custody after visitation. Levett filed a petition with the trial court requesting return of the child and Meade filed another emergency petition for modification of custody. After a hearing, the trial court denied Meade's motion and ordered her to return W.H. to Levett by 8:00 a.m. the next day. Rather than complying with the court's order, Meade filed a petition with the Indiana Court of Appeals asking it to stay enforcement of the trial court's order. While the petition was pending in the court of appeals, the trial court ordered Meade to show cause why she should not be found in contempt of court for failing to return W.H. The court of appeals denied Meade's petition for stay and she returned W.H. to Levett. Meanwhile, after several continuances, the trial court held a hearing on the rule to show cause in Meade's absence. She was found to be in contempt and ordered to pay attorney fees and lost wages to Levett as punishment for her contempt. Meade then obtained permission to join those issues with her pending appeal.

I. Custody

Meade argues that the trial court erred in denying her motion for a change of custody for two reasons. First, she contends that the trial court's findings are not supported by the evidence. Second, she argues that the trial court incorrectly applied the law to the facts before it.

The court entered findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). When a party has requested specific findings of fact and conclusions thereon pursuant to T.R. 52(A), the reviewing court utilizes a two-tiered standard of review. Nill v. Nill, 584 N.E.2d 602, 604 (Ind.Ct.App.1992), reh. denied, trans. denied. We must first determine whether the evidence supports the findings and second, whether the findings support the judgment. Id. The judgment will be reversed only when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind.Ct.App.1991), reh. denied, trans. denied. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id.

In hearings to modify custody, the burden is on the petitioner to demonstrate that the existing custody order is unreasonable. ² Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind.1992). A trial court may modify a custody arrangement only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable. Id. To determine whether an existing custody order is unreasonable, the court is to consider relevant factors, including changes in the circumstances of both the custodial and noncustodial parents and the resulting and potential advantages and disadvantages to the child. The change in conditions must be judged in the context of the whole environment. Id. at 99.

Furthermore, cooperation or lack of cooperation is not an appropriate justification for a change in custody. Pierce v. Pierce, 620 N.E.2d 726, 730 (Ind.Ct.App.1993), trans. denied. It is not permissible for a court to punish a parent for noncompliance with a custody agreement. Id. It is only when the child's welfare is at stake that the court should undertake to modify custody. Id. When a parent requests a modification of custody, the substantial change in circumstances cannot be the result of that parent's misconduct with regard to custody. Id. at 731. To allow that would be to reward the parent for misconduct. Id.

In reviewing the modification decision, even if the evidence might support a different conclusion, we will not substitute our judgment for that of the trial court. Hunsberger v. Hunsberger, 653 N.E.2d 118, 122 (Ind.Ct.App.1995), reh. denied, trans. denied. We will reverse only if the trial court's decision is against the logic and effect of the facts and circumstances before it or the reasonable inferences to be drawn therefrom. Id. at 121. We will not reverse the trial court's decision on the basis of conflicting evidence alone. Id.

First, in support of her argument that the findings are not supported by the evidence, Meade points to various evidence which she contends contradicts the trial court's findings of fact. She also complains that the trial court ignores her evidence and relies solely on the evidence presented by Levett and his witnesses. This, however, is simply an invitation to reweigh the evidence and reevaluate the credibility of witnesses which we will not do. ³ DeHaan, supra.

Second, Meade argues that the trial court incorrectly applied the law to the findings of fact. In order to prevail in her motion to modify custody, Meade was required to prove that there had been a change of circumstances making the existing custody arrangement unreasonable. Lamb, supra.

Here, the evidence shows that both Meade and Levett have engaged in a pattern of conduct designed to irritate and inconvenience each other. The evidence also indicates that the children are being emotionally harmed by their parents' inability to communicate and maintain a civil relationship. However, the trial court determined from its interviews with the children that they are well-rounded children and that the stability of Levett's home will continue to promote the best interests of the children. As noted above, lack of cooperation alone is not sufficient to justify a modification in custody. Pierce, supra. This is especially true when both parties are guilty of not cooperating. Rather, Meade must show a substantial change in circumstances which makes the present custody arrangements unreasonable. Lamb, supra. Considering the conflicting evidence presented to the trial court, we cannot say that its determination that it is in the children's best interests for Levett to retain physical custody is clearly against the logic and effect of the facts before it. Hunsberger, supra. Accordingly, we conclude that the trial court did not err in denying Meade's motion to modify custody.

II. Admission of Affidavit Testimony

Meade next alleges that the trial court erred in excluding a portion of the affidavit of Dr. Sheehan, her expert witness, at the hearing. The admission or exclusion of evidence is a determination entrusted to the discretion of the trial court. Paullus v. Yarnelle, 633 N.E.2d 304, 307 (Ind.Ct.App.1994), reh. denied, trans. denied. We will reverse a trial court's decision only for an abuse of discretion, that is, only when the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before it or the reasonable inferences to be drawn therefrom. Id. Where evidence is erroneously excluded, the error is harmless if the excluded evidence was otherwise presented to the jury. Indiana Ins. Co. v. Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1088 (Ind.Ct.App.1992).

Here, Meade offered Dr. Sheehan's affidavit during rebuttal. The trial court determined that all but one paragraph of the affidavit was rebuttal to Levett's case-in-chief. The remaining paragraph, containing Dr. Sheehan's conclusions regarding custody, was excluded because it was not proper rebuttal evidence. Even if it were error for the trial court to exclude the paragraph from Dr. Sheehan's affidavit, the error was harmless. Dr. Sheehan was permitted to testify several times, including when the affidavit was offered, concerning his opinion that the trial court should grant custody of the children to Meade. The excluded...