Owen v. Owen

• Decision Date: 08 February 1990
• Docket Number: No. 45A03-8904-CV-143,45A03-8904-CV-143
• Citation: 549 N.E.2d 410
• Parties: In re the Marriage of Christine Ann OWEN, Respondent-Appellant, v. David Todd OWEN, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 410

549 N.E.2d 410

In re the Marriage of Christine Ann OWEN, Respondent-Appellant, v. David Todd OWEN, Petitioner-Appellee.

No. 45A03-8904-CV-143.

Court of Appeals of Indiana Third District.

Feb. 8, 1990.

Robert G. Berger, David E. Mears, Highland, for respondent-appellant.

John R. Pera, Grego, Pera & Bishop, Martin H. Kinney, Merrillville, for petitioner-appellee.

GARRARD, Judge.

Christine Ann Owen appeals the decision of the Lake Circuit Court granting David Todd Owen's petition to modify the order of custody of their two children. Christine presents two issues for our review:

(1) Whether the trial court violated Christine's procedural due process rights when it granted David temporary custody of the children at a hearing of which Christine had no notice and when it failed to hold a hearing on the evidence for almost nine months after the children were removed from her home.

(2) Whether the trial court's findings of fact support its conclusion that substantial changes in circumstances had occurred such that custody of the children should be modified.

We reverse.

Facts and Procedural History

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.

I. Due Process

Christine argues that her right to due process was violated in two ways. First, the court granted David's petition for an emergency custody order without giving her notice and the opportunity to present evidence before the children were removed. Second, the trial court did not grant her request for an immediate hearing and did not conduct a hearing on the merits for eight months.

As to Christine's first contention, this is the first time in Indiana that granting of a petition for emergency temporary custody has been challenged on due process grounds. Temporary custody has, however, been recognized as a reasonable response to protect the children from irreparable harm in an emergency. Brown v. Brown (1984), Ind.App., 463 N.E.2d 310, 313; Hayden v. Hite (1982), Ind.App., 437 N.E.2d 133, 136. In an analogous situation a preliminary order suspending the father's support obligations was found not to violate the mother's right to due process where the order contemplated only a temporary interruption of support payments to be followed by proper notice and a full hearing. Hayden v. Hite, supra. We find the court's holding applies to the case at bar. The change in custody was temporary. Christine had been admitted to a hospital for an indefinite period of time. The law presumes that it is in the child's best interest to be placed in a parent's custody rather than in the custody of a grandparent. Marriage of Steward (1986), Ind.App., 507 N.E.2d 585, 587. David already had visitation rights. Therefore, the court did not abuse its discretion in granting David temporary custody.

Christine complains that she did not receive notice of the hearing and did not have the opportunity to present evidence on her behalf. The record bears this out. ¹ At this stage in the proceedings, however, it was not certain when or if Christine would be able to appear in court. The court, therefore, ordered that temporary custody be placed in David until Christine was released and a further hearing could be held. The court recognized Christine's due process right and ensured that she would have the opportunity to be heard. The court, however, also recognized that emergency circumstances of indefinite duration kept Christine from appearing and placed the children in some danger. Given the circumstances, we cannot say that Christine's right to due process was violated. Moreover, her right to due process was preserved. To hold otherwise would discourage noncustodial parents from seeking temporary custody in court and encourage them to take matters into their own hands. David's seeking temporary custody through court order is the preferred and legal way.

While granting the temporary custody order did not violate due process, due process requires that an evidentiary hearing be scheduled as soon as possible and that Christine receive notice and a full hearing on the evidence before the original custody order is modified. Brown v. Brown, supra; Marriage of Henderson (1983), Ind.App., 453 N.E.2d 310, 313. We, therefore, turn to Christine's second contention, that she was denied due process because she was not given an immediate hearing. Christine was hospitalized on April 23, 1988, and on May 13 she was discharged. On May 26, she requested an immediate hearing, which was scheduled six days later on June 1. Under the circumstances we cannot say she was denied an immediate hearing.

The hearing on June 1 had become a hearing to modify the original custody order by virtue of David's petition to modify custody filed on May 27. At this hearing, there was time only for a psychologist to testify that she believed the children had been sexually molested by their mother. The hearing was continued, and the court ordered that temporary custody be continued in David. Christine does not contest David's retaining temporary custody; she does, however, argue that a delay of almost eight months until the hearing on the merits--held February 7 and 8, 1989--while David retained temporary custody, deprived her of due process. She cites Brown v. Brown, supra, for the proposition that a delay of two months before hearing prejudices the custodial parent and argues that the eight month delay has prejudiced her.

Custody proceedings are to receive priority in being set for hearing. IC 31-1-11.5-23. We are concerned that the June 1 hearing had to be continued to a date more than two months later. David points out that prior dates were available, but that both sides deemed the time available on those dates as insufficient; therefore, they agreed to August 16, a day on which there was a sufficient block of time to have a full hearing. Moreover, Christine, on August 8, moved for a continuance, which the court granted. The hearing was reset for September 29. Further continuances were granted in part to allow time for a court-appointed psychologist to complete his evaluation, Christine's motion for a continuance on February 7, 1989 was denied. We find that in light of the continuances, some of which were granted at Christine's request, the two-month delay was harmless and the eventual delay of eight months was not error.

II. Substantial Change in Circumstances.

Pursuant to Trial Rule 52, the trial court entered its special findings of fact and conclusions of law. The court concluded that there had been a substantial change in circumstances since May, 1987. This court is bound by these findings and may not set them or the judgment of the trial court aside unless they are clearly erroneous. TR 52(A). The function of this 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. Isom v. Isom (1989), Ind.App., 538 N.E.2d 261, 263. Custody may be modified only when the petitioner shows a decisive change in the conditions of the custodial home or a change in the treatment of the child which necessitates removal. Id. Even when the petitioner has demonstrated a change in circumstances, the changes must be of such magnitude that the existing custody order is unreasonable. Poret v. Martin (1982), Ind., 434 N.E.2d 885, 888; Isom v. Isom, supra; Brown v. Brown (1984), Ind.App., 463 N.E.2d 310, 313. There does not have to be a change that compels a...