Partridge v. Partridge, 1270S293
Decision Date | 30 August 1971 |
Docket Number | No. 1270S293,1270S293 |
Citation | 257 Ind. 81,272 N.E.2d 448 |
Parties | Sarah Elisabeth PARTRIDGE, Appellant, v. Hugh PARTRIDGE, Appellee. |
Court | Indiana Supreme Court |
Ralph Hamill, Thomas Carroll, Hamill, Price & Carroll, Indianapolis, for appellant.
Henry J. Price, Jon D. Noland, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for appellee.
Appellant was granted an absolute divorce from appellee on September 9, 1969. Custody of the parties' minor child was given to the appellant. Appellee was given rights of reasonable visitation.
On April 29, 1970, the appellee filed a motion for an order setting specific visitation rights wherein it was alleged that appellee had accepted a position as assistant professor in the School of Music at Wichita State University, and that he would henceforth be residing in the city of Wichita, Kansas.
Following a hearing the trial court entered the following order:
'IT IS ORDERED that defendant-petitioner Hugh Partridge shall have the right to visit with and have in his temporary custody his minor son Hugh Partridge III from Friday morning, August 7, 1970, to Sunday night, August 9, 1970, and from Friday morning August 14, 1970, to Friday night August 21, 1970, with such visitation to take place in Indianapolis, Indiana; and
'IT IS FURTHER ORDERED that the defendant-petitioner Hugh Partridge shall have the right of visitation and temporary custody of his minor son, Hugh Partridge III, for a period of two weeks after December 25, 1970, and before January 17, 1971, such visitation and custody to take place at Mr. Partridge's residence; and
'IT IS FURTHER ORDERED that the defendant-petitioner Hugh Partridge shall have the right of visitation and temporary custody of his minor son Hugh Partridge III for a period of three weeks during the month of August, 1971, such visitation and custody to take place at Mr. Partridge's residence or such other place as he may be vacationing at that time; and
'IT IS FURTHER ORDERED that defendant-petitioner Hugh Partridge shall have the right of visitation and temporary custody of his minor son Hugh Partridge III for a period of two weeks after December 25, 1971, and prior to January 17, 1972, such visitation to take place at Mr. Partridge's residence; and
'IT IS FURTHER ORDERED that thereafter defendant-petitioner Hugh Partridge shall have the right of visitation and temporary custody of his minor son Hugh Partridge III for a period of two weeks between May 14th and June 7 of each year; for the entire month of August each year; and for a period of two weeks after December 25th and prior to January 17th each year, such visitation to take place at Mr. Partridge's residence; and
'IT IS FRUTHER ORDERED that defendant-petitioner Hugh Partridge shall have the right of visitation with his minor son Hugh Partridge III in the place of residence of plaintiff-respondent Sarah Partridge on an occasional basis when petitioner has occasion to be in the vicinity of the residence of plaintiff-respondent Sarah Partridge.'
The first question to be determined by this Court is whether or not the action of the trial court was in fact a change of custody or merely a modification of visitation rights. Appellant contends that this Court has jurisdiction of this appeal by virtue of Burns' Ind.Stat., 1968 Repl., § 4--214, IC 1971, 33--3--2--7, which reads in part as follows:
'Hereafter all appeals in appealable cases in the following classes shall be taken directly to the Supreme Court of Indiana, as follows:
Appellee contends that thic Court does not have jurisdiction over this appeal maintaining the order of the trial court concerned visitation rights only, and that the above statute does not apply in this case. The decree of the trial court in this case is far more reaching than the mere fixing of visitation rights. At the time of the divorce of the parties both were residing in Indiana, the custody was awarded to the mother with no recitation of any specific time the child was to spend with his father. The father was merely granted reasonable visitation rights.
Later when the father learned he was to be employed by Wichita State University, it then became apparent visitation as previously conducted would be much more difficult and inconvenient. It is, of course, obvious that it would be much more convenient for the father to be able to obtain the child for periods of time which would permit the visitations to occur in Kansas rather than periodic visitation of the father to the home of the child in the custody of his mother. There can be no question but what visitation is a right which should be enjoyed by the parent who does not have the legal custody of the child, and in this case he should be afforded such visitation within all reasonable application of the law so long as this can be accomplished in keeping with the best interests and the welfare of the child.
The far reaching scope of the order of the trial court...
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