Moutaw v. Moutaw

• Citation: 420 N.E.2d 1294
• Decision Date: 28 May 1981
• Docket Number: No. 3-880A241,3-880A241
• Parties: Patricia Ann MOUTAW, Petitioner-Appellant v. Roy Gilbert MOUTAW, Respondent-Appellee.
• Court: Court of Appeals of Indiana

Page 1294

420 N.E.2d 1294

Patricia Ann MOUTAW, Petitioner-Appellant v. Roy Gilbert MOUTAW, Respondent-Appellee.

No. 3-880A241.

Court of Appeals of Indiana, Fourth District.

May 28, 1981.

Steven W. Handlon, Portage, for petitioner-appellant.

James V. Tsoutsouris, Valparaiso, for respondent-appellee.

MILLER, Judge.

Patricia Ann Moutaw appeals from the trial court's modification of a custody decree which changed custody from her to the father, Roy Gilbert Moutaw, of the parties' son, Roy. ¹

The marriage of the parties to this appeal was dissolved on March 8, 1974. On May 16, 1974, a property and custody agreement was approved giving custody to the mother of the son and of the parties' other two children, Erika and Kristen Moutaw, and further providing the father would have reasonable visitation rights. Thereafter, on August 20, 1975, the father filed his initial motion for change in custody of all three minor children, which motion was denied by the trial court on August 28, 1975, in an order establishing an every other weekend visitation schedule. ² The instant action was initiated by the father on May 5, 1980 by way of a second petition to modify custody, which alleged "it would be in the best interest of the children if custody of said children were transferred" to the father. After hearing, the trial court determined the father should have custody of the son, age 9, and that custody of the two girls, age 12 and 14, should remain with the mother. The court also provided the father should have visitation with the daughters one weekend per month plus holidays, and that the mother should have a similar visitation with the son.

We reverse, concluding there was no evidence of "substantial and continuing" changed circumstances occurring after the last custody proceeding between the parties which would make continued custody of the son by the mother "unreasonable" pursuant to Ind.Code 31-1-11.5-22(d), and that the cause should be remanded to permit an appropriate redetermination of the father's support obligation and visitation rights.

The sole issue on appeal is whether the modification decree constituted an abuse of discretion. Both prior to and after the adoption of the Dissolution of Marriage Act, Ind.Code 31-1-11.5-1 et seq., the function of an appellate tribunal in an appeal from a custody modification decree has merely been to determine whether the lower court's decision is "clearly against the logic and effect of the facts and circumstances before the Court," Campbell v. Campbell, (1979) Ind.App., 396 N.E.2d 142, 143, a standard of review which necessarily requires this Court to look to the language and meaning of the current appropriate statute, IC 31-1-11.5-22(d), to determine whether the party seeking modification presented evidence on each element of his burden of proof. See Whitman v. Whitman, (1980) Ind.App., 405 N.E.2d 608. That statutory subsection provides:

"(d) The court (,) in determining said child custody, shall make a modification thereof only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable. In making its determination, the court shall not hear evidence on matters occurring prior to the last custody proceeding between the parties unless such matters relate to a change of circumstances."

In any custody determination, the "overlying concern" of our courts is with the "best interest" of the children involved, Whitman v. Whitman, supra at 609. However, it is also the law that whenever one party seeks the modification of an existing custody determination, only the "strict showing" that the present arrangement is unreasonable will suffice to justify a change in custody, in light of its potentially disruptive influence upon the child or children. Id. at 611. As this Court has explained:

"When initially determining the custodian of a child in a dissolution, IC 31-1-11.5-21(a) requires the court make its determination in accordance with the best interest of the child. At that point, there is no presumption favoring either parent, the statute requiring certain factors to be considered by the trial court, all focusing on the child's welfare. Once the initial determination has been made pursuant to these guidelines, a petition seeking modification must establish a substantial and continuing change in the original conditions necessitating the modification. IC 31-1-11.5-22(d). Such strict showing promotes the stability of the child, therefore ensuring the child's best interest will be paramount."

Id. at 610. Evidently, such strict showing is an outgrowth of the general proposition that "a change of custody disrupts the child's living arrangements and the channels of its affection and a change in the environment of a child is ordinarily not conducive to its welfare, but is highly detrimental, ...." 27B C.J.S. Divorce § 317(2) at 542-43 (1959). Thus, this Court has concluded with respect to our own statute, "the Indiana legislature sought to discourage modification attempts, perhaps 'because of the extent to which former spouses use the modification process repeatedly for vexatious purposes only." Lovko v. Lovko, (1979) Ind. App., 384 N.E.2d 166, 171, quoting Covalt v. Covalt, (1976) 171 Ind.App. 37, 45, 354 N.E.2d 766, 771. ³

As we have previously indicated, the father's petition to modify custody did not allege there had been any change in circumstances whether substantial, continuous, or otherwise but rather represented merely that it would be in the children's best interest if he were made the custodial parent, a claim which on its face does not comport with the showing required by our Legislature in order to modify custody. Since it is apparent, however, the trial court's order may have been based on appropriate evidence which was elicited at trial, our analysis proceeds to consider the findings which were made and the evidence, if any, supporting them.

The court's formal entry indicating ultimate factual determinations (rather than basic underlying facts) was as follows:

"The Court bases its decision on the support and custody modification pursuant to Burns Indiana Statute 31-1-11.5-21.

The Court specifically bases its decision upon the following findings.

1. The wishes and decisions of the three minor children. The Court specifically took quite some length of time in discussing this matter with them.

2. The Court specifically finds that the present alternating weekend schedule is not satisfactory to the three minor children, not (sic) the parents, mainly because of the distance involved between Valparaiso and Brownsburg. The Court specifically found that the father had not been adequately and sufficiently informed and updated as to the minor children's life and well-being; and had been somewhat deprived of an opportunity to develop a working parental relationship with his son and daughters.

3. Court specifically finds that this has been somewhat detrimental to the son's upbringing and welfare. Court specifically further finds that the son does desire a closer and better relationship with his father. Court specifically finds that all three minor children will ultimately benefit with this new custody and visitation order, and there will be ample opportunity for all three children to have an inner-relationship with each other and with their mother and father. The Court specifically finds that the two daughters have indicated that they wish to have this type of liberal visitation that is spelled out in this order. However, because of the oldest girl, Erika, the Court makes this order concerning her visitation subject to her consent. If she does not wish to visit with her father, she should so indicate this to him."

Apparently unintentionally, the court's order was expressly founded on the provisions of IC 31-1-11.5-21, ⁴ the statute pertaining to initial custody determinations (and in this sense such order was consistent with the husband's failure in his petition to allege a substantial change of circumstances), although the language of the order was later amended "to reflect that the Court's findings which were entered into the July 3rd order were findings that were substantial and continual and that these chain of circumstances accumulated in making the original custody order for the minor boy of the parties unreasonable." ⁵

In support of the order, the following evidence was elicited at trial: Although both parties evidently lived in Valparaiso, Indiana, when the marriage was dissolved and custody given to the mother, at some time "shortly" thereafter, the mother moved to Brownsburg, Indiana, a distance requiring approximately two and one-half hours' traveling time. Significant to his contentions in the instant appeal, the father concluded such act "could be" and "most likely was" viewed by the trial court as an effort, after the move was accomplished, to destroy his relationship with the children. After the move, the mother acknowledged she had left visitation arrangements "up to the children" or "up to the children and their father" on at least one occasion (during the summer), and that she had failed to notify the father of the son's baptism. The father also testified, however, the mother was responsible for "getting them (the children) involved" in various social and sports programs which would conflict with his court-ordered visitation. In this regard, the father speculated the mother's "new" job had caused the son to become involved with the sports and social activities so he would not have to go home "where there is no one home until 5:00 or 6:00 or 7:00 at night," although the mother asserted, by contrast, that her father (who lives in the same house) is present when the children come home from school. The specific evidence of alleged interference with the father's visitation consisted principally of his testimony that during the summer of 1979 he had "extended visitation" of only 10 days with the...