Milligan v. Milligan, 3-576A115

• Decision Date: 09 August 1977
• Docket Number: No. 3-576A115,3-576A115
• Citation: 174 Ind.App. 40,365 N.E.2d 1244
• Parties: In re the Marriage of William Howard MILLIGAN, Appellant, v. Darlene Janice MILLIGAN, Appellee.
• Court: Indiana Appellate Court

Page 1244

365 N.E.2d 1244

174 Ind.App. 40

In re the Marriage of William Howard MILLIGAN, Appellant, v. Darlene Janice MILLIGAN, Appellee.

No. 3-576A115.

Court of Appeals of Indiana, Third District.

Aug. 9, 1977.

Thomas E. Rucinski, Sachs & Hess, Hammond, for appellant.

HOFFMAN, Judge.

Appellant William Howard Milligan appeals from the order of the trial court modifying his visitation rights with his minor children. On February 7, 1975, the marriage of Darlene Janice Milligan (wife) and William Howard Milligan (husband) was dissolved. The decree of dissolution incorporated by reference a settlement agreement giving the wife custody of the minor children, subject to the husband's visitation rights.

On April 1, 1975, wife filed a motion for rule to show cause and petition to modify decree. Pursuant to such petition, the parties agreed to modify the husband's visitation privileges.

On October 22, 1975, wife filed a second motion for rule to show cause. Thereafter husband filed a motion for rule to show cause and for modification of visitation. After a hearing, the trial court found both parties in contempt and entered its second order of the case modifying visitation as follows:

"The Court now modifies the visitation and orders that respondent is entitled to visitation with the parties' minor children on the first Sunday of every month from 8:00 a. m. until 8:00 p. m. Petitioner shall prepare the children for the visitation by taking them to James and Anita VanVleet's residence located at R.R. # 1, Box 273, Lake Village, Indiana, promptly at 8:00 a. m. on the first Sunday of every month and respondent shall be entitled to visit with the minor children from 8:00 a. m. until 8:00 p. m. on said day and shall return the children to the VanVleet's residence promptly at 8:00 p. m. on the day of visitation."

Husband contends that the trial court erred in restricting his rights to visitation without making the requisite statutory findings.

The appellee has not filed a brief in response to the issues raised by the husband.

IC 1971, 31-1-11.5-24(b) (Burns Supp. 1976), governs the visitation rights of a noncustodial parent as follows:

"The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation might endanger the child's physical health or significantly impair his emotional development."

The major thrust of husband's argument depends upon whether the trial court's aforementioned modification order permitting visitation on the first Sunday of every month was a "restriction" of his visitation rights.

The original decree of dissolution delineated the husband's visitation rights as follows:

"Visitation:

"These provisions shall govern the visitation rights of the parties in the absence of a contrary agreement. These provisions shall not prejudice the parties' right to mutually agree to other reasonable provisions regarding visitation.

"1. The husband shall have the right of overnight visitation with the two children in his home on one weekend per month commencing on Friday evening and ending on Sunday afternoon at approximately 1 P.M. The particular weekend per month on which this visitation shall take place shall be agreed upon by the husband and wife at least one week (5 days) prior to the commencement of such weekend visitation, or in the absence of such agreement shall occur on the second weekend of the month.

"2. The husband shall have the right of daytime visitation with the children in the wife's home on one of the Husband's non-working days per week for a period of 2 hours. The day and time of such visitation shall be agreed upon by the parties at least 24 hours in advance. Such visitation shall be to the exclusion of the wife and shall in no case extend beyond 8 P.M.

"3. The husband shall have the right of all day visitation with the children (outside the wife's home) on alternate holidays, as per the following example:

                Thanksgiving  1974--Wife
                Christmas     1974--Husband
                New Years     1974-5--Wife
                Thanksgiving  1975--Husband
                Christmas     1975--Wife
                New Years     1975-6--Husband
                

"4. The Husband shall have the right of all day visitation with the two children outside the wife's home on alternate birthdays of each respective child."

The first modification of the husband's visitation privileges provided as follows:

"Respondent shall be entitled to visitation with his children during the daylight hours at the home of petitioner and in petitioner's absence during his regular visitation times heretofore set forth in the settlement agreement.

"It is further agreed that the children shall not...