Owen v. Owen

• Decision Date: 13 December 1990
• Docket Number: No. 45S03-9012-CV-788,45S03-9012-CV-788
• Citation: 563 N.E.2d 605
• Parties: Christine Ann OWEN, Appellant, v. David Todd OWEN, Appellee.
• Court: Indiana Supreme Court

Page 605

563 N.E.2d 605

Christine Ann OWEN, Appellant, v. David Todd OWEN, Appellee.

No. 45S03-9012-CV-788.

Supreme Court of Indiana.

Dec. 13, 1990.

Rehearing Denied Feb. 11, 1991.

David E. Mears and Robert G. Berger, Merrillville, for appellant.

Martin H. Kinney and John R. Pera, Merrillville, for appellee.

ON PETITION TO TRANSFER

PER CURIAM.

This cause comes to us on a petition to transfer from the Third District Court of Appeals. Owen v. Owen (1990), Ind.App., 549 N.E.2d 410. The petition is brought by David Todd Owen, Appellee, who was successful in his petition for custody of two minor children in the trial court. The trial court found that a substantial change of circumstances compelled a change of custody. The Court of Appeals found that the trial court's conclusion that substantial changes had occurred was not sustained by the factual findings and that the trial court therefore abused its discretion in modifying its original custody decree. Id. at 416. The facts as set out by the Court of Appeals are as follows:

Christine and David Owen's marriage was dissolved on May 7, 1987. They are the parents of two daughters, Laura, born June 20, 1980, and Lisa, born August 18, 1984. Pursuant to the agreement of the parties, Christine was granted custody of the children. Even before their divorce, Christine had been hospitalized to undergo psychiatric treatment.

On April 23, 1988, Christine was admitted to our Lady of Mercy Hospital in Dyer, Indiana, for treatment of a mental disorder. At the time, her mother, the children's grandmother, was living in her home and helping her to care for the children when she was working. On the day she was admitted, the children were at David's home for weekend visitation. On Monday, April 25, 1988, David filed a verified petition for an emergency custody order based upon the fact that Christine had been admitted to a hospital for an as yet unknown period of time for treatment of a mental disorder. Christine did not know of these proceedings, but David's attorney contacted Christine's attorney who appeared on her behalf, though he had not conferred with Christine. The court granted David temporary custody of the children subject to an immediate hearing when Christine was ready to appear.

Christine was discharged from the hospital on May 13. On May 26, she requested an immediate hearing, and hearing was granted for June 1. On May 27, David filed an amended petition for modification of custody. Hearing was held on June 1, and David had time only to present as evidence the testimony of Stana Michaels, who testified that it was her opinion that the children had been sexually abused. The hearing was adjourned, but based on Ms. Michael's testimony, the court continued temporary custody in David and restricted Christine's visitation. The hearing was continued until August 16. (Later in the proceedings, the trial court, on Christine's motion, ordered all parties evaluated by a court-appointed psychologist and struck the testimony of Ms. Michaels.)

On August 8, Christine moved for a continuance and the hearing was reset for September 29. On August 22, David moved to continue and hearing was reset for October 27. On August 26, Christine moved to have psychological evaluations performed. Trial was finally held on February 7 and 8, 1989. Christine had moved to have special findings of fact entered before any evidence was presented on June 1. On February 24, 1989, the court entered its special findings of fact and conclusions of law, and granted David custody of the children.

Id. at 412.

Appellant Christine Owen claimed her right to due process was violated when the court granted David's petition for an emergency custody order without giving her notice and opportunity to present evidence before the children were removed and, further, did not grant her request for an immediate hearing and did not conduct a hearing on the merits for eight months. The Court of Appeals concluded that Christine's due process rights were not violated. We find the Court of Appeals adequately disposed of this issue and adopt their language in Issue I, captioned "Due Process" in their opinion.

The facts pertinent to the resolution of the second issue, concerning substantial change of circumstances, involved the mental disease or disorder of Christine and its effect on her ability to give responsible care to the children. The Court of Appeals found there was insufficient evidence to show such a change of conditions since there was evidence that before the final dissolution, Christine had been hospitalized for some weeks because of a mental disorder. The reasoning of the Court of Appeals seemed to be that there was insufficient showing of an increase in this disorder meriting a finding of change in circumstances before the trial court. We disagree. In reversing the trial court, the Court of Appeals violated its own stated standards for reviewing a trial court judgment. In Isom v. Isom (1989), Ind.App. 538 N.E.2d 261, the Court of Appeals found that the function of appellate court in an appeal from a custody modification decree is to determine whether the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Custody may be modified upon a showing of changed circumstances so substantial and continuing as to make the existing order unreasonable in view of the best interest of the child. I.C. 31-1-11.5-22(d); Poret v. Martin (1982), Ind., 434 N.E.2d 885, 888.

This issue was somewhat complicated by the fact that Christine resisted efforts of David to obtain medical records. David attempted to discover her medical records to ascertain and present into evidence matters pertinent to her physical and mental condition up to the day of trial. By way of answers to interrogatories Christine identified each and every physician and hospital providing her treatment during the months leading up to the hearing in the trial court, but during her pretrial deposition, she refused to answer questions concerning the nature and extent of her treatment or to disclose any of her medical records related thereto. She claimed the physician-patient privilege as a basis for such refusal. Her refusal was the subject of a motion to compel discovery filed by David in advance of trial and, after a hearing, her refusal was sustained by the trial court. David was thus put in the position of being frustrated in his attempt to put in the pertinent evidence on this issue and then having the courts find he failed to carry his burden by the lack of that very evidence.

The Court of Appeals correctly noted that in child custody proceedings, the mental and physical health of all parties involved become subjects for consideration by the trial...