Morrison v. Morrison

• Decision Date: 28 January 1960
• Docket Number: No. 19170,No. 1,19170,1
• Citation: 164 N.E.2d 113,130 Ind.App. 270
• Parties: Rita A. MORRISON, Appellant, v. Thomas P. MORRISON, Appellee
• Court: Indiana Appellate Court

Page 113

164 N.E.2d 113

130 Ind.App. 270

Rita A. MORRISON, Appellant, v. Thomas P. MORRISON, Appellee.

No. 19170.

Appellate Court of Indiana, Division No. 1.

Jan. 28, 1960.

Jenkins & Fiely, Frank B. Jaqua, Portland, for appellant.

Abromson & Grimes, Portland, for appellee.

COOPER, Justice.

This appeal is from the Jay Circuit Court wherein the trial court made an order modifying a prior order concerning the custody of a minor child. The cause was originally appealed to the Supreme Court and transferred to this court pursuant to § 4-217, Burns', 1946 repl.

The record before us reflects that the parties to this appeal are the parents of an infant girl, born on May 20, 1956, and that the appellant herein was granted an absolute divorce from the appellee herein and awarded the custody of said minor child on the 30th day of March, 1957.

Thereafter, the record reveals the appellee, in the matter now before us, filed a petition seeking a modification of the custody order originally rendered on the 6th day of May, 1957.

The trial court thereafter (a Special Judge trying said petition) heard evidence upon submission and later made and entered findings and an order relative to the custody of said child, which said order is appealed from.

Appellant filed her motion for a new trial averring the insufficiency of the evidence to sustain said decision and that the same is contrary to law, said motion was overruled by the trial court on September 25, 1957.

The transcript of record and the appellant's assignment of error were duly filed with the Clerk of the Supreme and Appellate Courts on the 11th day of December, 1957; that on February 21, 1958, the appellee herein filed a motion to dismiss upon the theory that a motion for a new trial was not contemplated in such proceedings and that the filing of such motion would not extend the appellant's time for filing the transcript of record and assignment of errors and that since the transcript of record and assignment of errors were not filed within ninety (90) days after the trial court entered its order, said transcript and assignment of errors were not filed within the time fixed by Rule 2-2 of the Supreme Court. The appellee's motion on the aforesaid ground was by this court overruled on March 21, 1958. The matter was then assigned for oral argument, and, in the course of said oral argument, the appellee raised another jurisdictional question for the first time--namely, that the matter before us was an appeal from a hearing upon a petition that was interlocutory in nature, and, if that were true, the appellant was required, under Rule 2-2 and § 2-3219, Burns', 1946 repl., to file the transcript of record and assignment of errors within thirty (30) days from the court's final order or ruling upon the motion for a new trial, if one was filed. If this be true, the defect being jurisdictional, the appellee could raise the question at any time, even during oral argument, and his failure to raise the question until such time 'cannot constitute a waiver, an agreement or an estoppel'. Hansbrough v. State, 1952, 230 Ind. 397, 400, 103 N.E.2d 203, 204.

In a previous opinion written in this cause we were in accord with the appellee herein and held that such orders were interlocutory by virtue of what the Supreme Court had said in the case of State ex rel. Davis v. Achor, 1947, 225 Ind. 319, 326, 75 N.E.2d 154, 157, wherein the court stated:

'Such orders (for the custody of children) therefore are interlocutory in nature * * *.'

We further thought that by reason of the Supreme Court's following statement in the case of Rosenbarger v. Marion Circuit Court, Ind.1959, 155 N.E.2d 125, 127, 'Therefore, it is proper and consistent with the nature of the action that the court may enter a decree, interlocutory in character, by which it determines the custody of the children, subject to further and final disposition of the case' (our emphasis) that this matter should have been appealed under the statutes and rules relating to interlocutory orders.

In the recent case of Haag v. Haag, Ind., 163 N.E.2d 243, the Supreme Court held that said foregoing statements were gratuitous and lent no support to the position that such orders are interlocutory and held that such matters are appealable under the rules of civil procedure as a final judgment. We are now compelled to abide by such decision in this cause and consider this appeal as an appeal from a final judgment.

The petition filed in the court below, omitting the formal parts, reads as follows:

'Comes now the defendant, Thomas P. Morrison, and for his amended petition to modify order of court relative to custody of minor child alleges and says:

'1. That the plaintiff was granted an absolute divorce from the defendant March 30, 1957 at which time the custody of the minor child of the parties, Susan Leigh Morrison, was granted to the plaintiff.

'2. That shortly after the granting of the divorce, as aforesaid, and within a few days thereafter, without the knowledge of the defendant, the said child was placed with Dorwin Myers and his wife, who reside on a farm west of the City of Portland, Indiana, and which parties have said child in their possession and are caring for her.

'3. That the conduct of the plaintiff in placing said child with Dorwin Myers and wife, as aforesaid, and without the knowledge and consent of the defendant, is detrimental to the welfare and best interests of the infant child of the parties and constitutes a change of condition and circumstances such as did not exist at the time of granting the divorce to plaintiff and giving her custody of said child, which change of condition and acts on her part warrants a modification of the order as to custody of said infant child.

'4. That the conduct of the plaintiff since the granting of the divorce and order of custody, as aforesaid, has rendered her unfit to have the care and custody of said child.

'5. That since the granting of the divorce, as aforesaid and granting the custody of said minor child with the plaintiff by said court order of March 30, 1957, the conditions have changed to the extent that the former order of court as to the custody of said child should be modified and the custody of said child be given to the defendant.

'6. That it would be to the best interest of said child that said order of court be modified and custody changed and said child placed with this petitioner.

'Wherefore the defendant prays that the order of court as to the custody of said minor child be modified after notice to the plaintiff and for all other relief just and proper in the premises.'

The evidence in the record before us appears without conflict, and it was the duty of the trial court to apply the correct principles of law to such facts; otherwise, the decision of the court would be contrary to law.

It is apparent from the record that the trial court permitted much evidence to be introduced upon both direct and cross examination that was not pertinent to the issues involved in this cause.

The evidence, concisely stated, shows that the parties were married very young, the appellee herein being twenty-one years of age, and the appellant being sixteen years of age; that at the time of the divorce, the trial court placed the custody of the minor child (year and one-half old) involved herein, in the appellant and that the appellee was ordered to pay the sum of eight ($8) dollars a week for the support of said child; that shortly after the divorce, the appellant returned to high school in order to further and complete her education, and thereby enabling her to better support herself and child; that as a matter of convenience while attending her school work, the appellant made arrangements to have the child attended temporarily by an aunt and uncle, both admittedly moral and reputable people, having other children and living in a suitable, modern farm home. The appellee herein, after learning that his ex-wife had returned to school and had made the temporary placement of the child, held a conference with his parents, and, as a result thereof, filed the petition for the modification of the custody order on May 6, 1957, which was thirty-seven (37) days after the original order.

The record is devoid of any evidence showing any change in the conditions which existed at the...