Ohman v. Ohman
| Decision Date | 02 August 1990 |
| Docket Number | No. 79A02-8810-CV-00395,79A02-8810-CV-00395 |
| Citation | 557 N.E.2d 694 |
| Parties | Lenn F. OHMAN, Respondent-Appellant, v. Sandra M. OHMAN, Petitioner-Appellee. |
| Court | Indiana Appellate Court |
E. Kent Moore, Cooke Bache Lazynski & Moore, Lafayette, for respondent-appellant.
Larry L. Dill, Wolcott, for petitioner-appellee.
Lenn F. Ohman (Husband) appeals the trial court's order granting Sandra Ohman's (Wife) petition for modification of the court's prior order as to custody of the parties' daughter, Jennifer.
We reverse.
Husband argues that the trial judge's decision to modify custody was not based upon sufficient evidence and was contrary to law.
Husband was given custody of the parties' daughter pursuant to the Dissolution Decree, entered on April 16, 1984. Subsequently, Wife filed a petition requesting a modification of visitation, and an agreed order was entered March 31, 1987, specifically setting forth the times for visitation. Wife was entitled to visitation every other weekend, alternating holidays and one week during the summer. Wife testified at the custody hearing that there was no problem with visitation after the more specific order modifying visitation was entered until Husband moved.
On January 9, 1988, Husband moved from Indiana to Winchester, Virginia. Husband admits that he did not provide notice of this move to the court as required by I.C. 31-1-11.5-21.1. 1 He did, however, call his attorney and the school prior to moving. Husband testified that he sent a letter to Wife on January 11, 1988, notifying her of the move. He stated that the move was motivated by economic necessity. He received a job offer on January 8, 1988, from George Johnson Construction Company in Virginia and had to report to work Monday morning in order to secure the job.
Wife testified that she received Husband's letter on January 12 and contacted her attorney. Wife testified that she did not write directly to Husband concerning visitation until July of 1988, nor did she attempt to locate a telephone number for Husband between January and June of 1988.
On May 23, 1988, Wife filed her affidavit for contempt citation against Husband. A hearing was held on June 20, 1988, and the court found that Husband was in contempt of court. The court ordered that "husband can purge himself of his contempt by bearing the burden of visitation expenses." Record at 51. After the contempt hearing, the parties apparently began negotiating for visitation rights different from the March, 1987, visitation order which was still in effect. Pursuant to a letter from Wife sent near the end of July, Husband proposed, through his attorney, to allow visitation from the beginning of August until August 31, 1988. Wife accepted this proposal, drove to Virginia and brought Jennifer back to Indiana. Visitation went as planned except that Husband, with Wife's agreement, took Jennifer for one day for a family gathering.
Prior to this visitation, on July 8, 1988, Wife petitioned to modify custody, alleging in particular that "notwithstanding this Court's finding of contempt, Petitioner has failed or refused to provide or allow Respondent visitation as set out in this Court's order of March 31, 1987." Record at 52. A hearing was held August 23, 1988. At the conclusion of the hearing the court changed custody from Husband to Wife. The court's order was, in relevant part, as follows:
"And the Court having heard the evidence, the arguments of counsel and being duly advised in the premises, does now FIND, ORDER AND DECREE that the allegations of the Motion to Modify as to Custody are true and that the Decree of Dissolution herein be modified, and that the best interests of the child, Jennifer, require that said Decree be modified to provide that the custody of said child, born November 3, 1981, be awarded to the petitioner and natural mother, Sandra M. Ohman Pearson." Record at 73.
An order modifying custody will be reversed on appeal only upon a showing that the trial court abused its discretion. Poret v. Martin (1982) Ind., 434 N.E.2d 885, 887. An abuse of discretion has occurred if the court's decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Marshall v. Reeves (1974) 262 Ind. 107, 115, 311 N.E.2d 807, 812 (original emphasis); see also Poret, supra, 434 N.E.2d at 887.
The standard which the trial court must apply to petitions to modify custody is set out in I.C. 31-1-11.5-22(d) (Burns Code Ed.Repl.1987) which provides:
The party petitioning for a change of custody must show that a decisive change in the conditions of the custodial home or the treatment of the child has occurred such that it would no longer be in the best interests of the child to maintain the status quo. Owen v. Owen (1990) 3d Dist.Ind.App., 549 N.E.2d 410, 414, trans. pending; Bays v. Bays (1986) 4th Dist.Ind.App., 489 N.E.2d 555, 560, trans. denied. The crucial consideration for the trial court in determining custody questions is the best interest of the child. Thompson v. Thompson (1990) 2d Dist.Ind.App., 550 N.E.2d 1332, 1336. Therefore, it is the effect upon the child which renders a change substantial or inconsequential. Poret, supra, 434 N.E.2d at 888. The custody of children may not be used as a means of punishing the actions of the parents. Marshall, supra, 311 N.E.2d at 810.
In the present case, Wife's petition to modify the dissolution decree as to custody was filed July 8, 1988. The pertinent allegation in Wife's petition was that despite the court's finding of contempt, Husband failed or refused to provide visitation "as set out in this Court's order of March 31, 1987." Record at 52. The contempt hearing was held June 20, 1988. There was, therefore, only an eighteen day period during which, according to Wife's allegations, Husband failed to provide visitation.
Under the March 31, 1987 order, still in effect at the time Wife's petition to modify custody was filed, Wife was entitled to visitation during the weekend of June 24 to June 26. Husband was entitled to the 4th of July holiday. Wife was again entitled to visitation beginning at 6:00 P.M. on July 8, which would have been after the petition for modification of custody was filed. Therefore, there was only one weekend during the eighteen day period in which Wife was entitled to visitation. The March 31, 1987 order also provided that Wife was responsible for "picking up and returning the minor child to the father's address." 2 Record at 36. The record is devoid of any evidence that Wife attempted to visit with Jennifer during the one weekend to which she was entitled under the visitation order then in effect. Further, any failure by Husband to provide visitation on one weekend would not be sufficient grounds to justify a change in custody.
The court's finding with respect to Wife's petition to modify custody was merely that "the allegations of the Motion to Modify as to Custody are true." Record at 73. As noted, to the extent that the allegations concern denial of visitation, they are insufficient to support a change of custody.
At the conclusion of the custody hearing, the trial judge stated that
"the...
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