Patterson v. Patterson
| Decision Date | 08 June 1973 |
| Docket Number | No. 2--773A157,2--773A157 |
| Citation | 165 Ind.App. 538,333 N.E.2d 115 |
| Parties | William D. PATTERSON, Appellant, v. Margaret L. PATTERSON, Appellee. . Aug, 28, 1975. Betty L. Shelton, Muncie, Frank E. Spencer, Indianapolis, for appellant. Perry W. Cross, Dennis Cross, Raisor, Jordan & Marshall, Muncie, for appellee. WHITE, Judge. This is an appeal from a denial of a post-divorce petition seeking a change in the custody of minor children from the mother to the petitioning father. Finding no abuse of discretion, we affirm. The evidence is without substantial conflict. The mother remarried shortly after the divorce. Her present husband is unemployed, except for a weekend bartending job. He suffers from phlebitis. She has worked and made the family's living most of the time. They have moved several times, living for a time in Pensacola, Florida, where they took the children with permission of the court. When they returned to Indiana the mother did not immediately notify the father, saying she had lost his unlisted telephone number which she originally obtained by telephoning his mother from Florida when she had to call him concerning his arrearage in support payments. The family of six now lives in a crowded, two-bedroom trailer in a trailer park. They are in poor financial condition and move often. They lost their home by foreclosure. The school age child has been in several schools and has done poorly, but may now be making passing grades. When the divorce was granted, the father 'went into the service.' After discharge he returned to the Muncie area and remarried. He and his present wife have no children and live in a large trailer, on a large lot in a trailer court which has a playground, tennis courts, and a swimming pool. He is steadily employed. At the conclusion of the hearing the trial judge stated: 'According to my understanding of the law pertaining to change of custody and the rules set out by the Supreme Court, whenever the Court changes custody there must be a change in condition and circumstances which are compelling, urgent and coge |
| Court | Indiana Appellate Court |
Betty L. Shelton, Muncie, Frank E. Spencer, Indianapolis, for appellant.
Perry W. Cross, Dennis Cross, Raisor, Jordan & Marshall, Muncie, for appellee.
This is an appeal from a denial of a post-divorce petition seeking a change in the custody of minor children from the mother to the petitioning father. Finding no abuse of discretion, we affirm.
The evidence is without substantial conflict. The mother remarried shortly after the divorce. Her present husband is unemployed, except for a weekend bartending job. He suffers from phlebitis. She has worked and made the family's living most of the time. They have moved several times, living for a time in Pensacola, Florida, where they took the children with permission of the court. When they returned to Indiana the mother did not immediately notify the father, saying she had lost his unlisted telephone number which she originally obtained by telephoning his mother from Florida when she had to call him concerning his arrearage in support payments. The family of six now lives in a crowded, two-bedroom trailer in a trailer park. They are in poor financial condition and move often. They lost their home by foreclosure. The school age child has been in several schools and has done poorly, but may now be making passing grades.
When the divorce was granted, the father 'went into the service.' After discharge he returned to the Muncie area and remarried. He and his present wife have no children and live in a large trailer, on a large lot in a trailer court which has a playground, tennis courts, and a swimming pool. He is steadily employed.
At the conclusion of the hearing the trial judge stated:
On the basis of that statement the appellant-father contends the decision is contrary to law, in that the legal principle on which it is based is erroneous in requiring the change in condition and circumstances to be 'urgent'. The only custody case which he cites in support of that argument is Landing v. Landing (1972), Ind.App., 284 N.E.2d 857, 858, from which he quotes the following:
Landing is a case in which the petitioning party had shown to the satisfaction of the trial court, 'that such changes have taken place that the prior order is no longer in the best interests of the child'. The Court of Appeals therefore affirmed, after quoting, as follows, from Partridge v. Partridge (1971), 257 Ind. 81, 86, 272 N.E.2d 448, 451:
'As was stated by this Court in Wible, supra:
245 Ind. 235, 241, 196 N.E.2d 571, 574.'
Appellee-mother points to no case, and we have found none, which uses the trial court's precise descriptive phrase (i.e., 'compelling, urgent, and cogent') in establishing a standard against which the trial court should weigh the evidence to determine the sufficiency of the change of condition relied on by the party petitioning for a change of custody. On the other hand the appellant-father has failed to demonstrate that in using those particular words the trial judge was not saying in his own words what the Indiana Supreme Court said in Wible v. Wible (1964), 245 Ind. 235, 239, 196 N.E.2d 571, 573, in these words: '(T)he burden is on the petitioner below, who asks for a modification of a custody order, to allege and also to prove a substantial and material change in the condition affecting the welfare of the children.' (Our emphasis.) Or in Adams v. Purtlebaugh (1951), 230 Ind. 269, 274, 102 N.E.2d 499, 501, as follows:
We do not approve of the use of the word 'urgent' because it ordinarily implies a necessity for immediacy which is not among the criteria for modification of custody orders found in the reported cases. However, we are not convinced that the judge's remarks taken as a whole carry that implication. Furthermore, his observations that he ...
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