Poret v. Martin
| Decision Date | 07 May 1982 |
| Citation | 434 N.E.2d 885 |
| Parties | In re the Marriage of Karin Louise (Martin) PORET, Appellant (Respondent Below), v. Craig Charles MARTIN, Appellee (Petitioner Below). 2-1180S382 (582S174) |
| Court | Indiana Supreme Court |
Philip F. Boberschmidt, L. Craig Turner, Quill, Steckler & Boberschmidt, Indianapolis, for appellant.
Kim S. Walker, Miller, Tolbert & Wildman, Logansport, for appellee.
ON PETITION TO TRANSFER
This cause is before us upon the petition of the husband (Appellee) to transfer the cause from the Court of Appeals, Second District, following the reversal of the judgment of the trial court granting the husband's petition for modification of the prior decree awarding custody of the children to the wife (Appellant). Said decision of the Court of Appeals was by an unpublished memorandum filed July 8, 1981.
The petition to transfer is now granted and the aforesaid decision and opinion of the Court of Appeals is vacated, for the reasons hereinafter set forth.
The appeal presents the following issues:
(1) Whether the Trial Court had before it evidence, or inferences therefrom, serving as a rational basis for its finding that a substantial and continuing change in circumstances had occurred so as to make the previously existing custody order unreasonable.
(2) Whether the trial court erred in overruling the wife's motion for summary judgment.
(3) Whether the trial court abused its discretion in requiring the wife to bear the expenses of her visitations with the children.
The Court of Appeals reversed the judgment of the trial court, holding that, as a matter of law, there had been shown no change of circumstances, since the issuance of the last custody order, which warranted the grant of a change in custody. Said ruling contravenes a ruling precedent of this Court clearly expressed in Mikels v. Mikels, (1967) 248 Ind. 585, 228 N.E.2d 20, wherein it was acknowledged that in order for a change of custody to be warranted from that previously ordered, there must be a change in condition from the date of the last order and that the change must be of such a decisive character as to make the change necessary for the welfare of the child. However, we held, in that case, that the evidence therein was sufficient to sustain a finding of such a change and continued: "If there is any evidence, or legitimate inferences therefrom, to support the finding and judgment of the trial court, this Court will not intercede or interfere and exercise or use its judgment as a substitute for that of the trial court." 248 Ind. at 586, 228 N.E.2d 20.
In this regard, our standard of review is no different from that utilized in other matters wherein the legality of the judgment depends upon the evidence presented at the trial. Our function in appeals such as the one before us has been amply stated as follows:
Campbell v. Campbell, (1979) Ind.App., 396 N.E.2d 142, 143.
The rule is annotated in detail in Marshall v. Reeves, (1974) 262 Ind. 107, 311 N.E.2d 807, wherein, on transfer, we adopted the dissenting opinion from the Court of Appeals and affirmed the judgment of the trial court changing the prior custody order in the case remarkably similar to the one with which we are here concerned.
emotional development. After being discharged from her job Martha carried on an illicit relationship, apparently both in Indiana and Arizona, to which Andrea was exposed. The trial court could well have concluded from the evidence that Martha was unable to cope with her own problems and was indifferent or insensitive to the well-being of Andrea.
" 'In sum, there was evidence indicating a new set of circumstances affecting the welfare of the child." 262 Ind. at 114, 311 N.E.2d 807.
In the case before us, the Court of Appeals predicated its holding upon Ind.Code § 31-1-11.5-22(d) (Burns Code Ed.) which allows the trial court to modify custody provisions only upon "a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable." The statute is nothing more than a codification of the case law of this jurisdiction. The words "substantial and continuing," with reference to the change of condition are merely a rephrasing of our case law requirement that it be of a "decisive nature"; and the requirement that it "make the existing order unreasonable" is no different than the case law requirement that the change be "necessary for the welfare of the child."
Neither has there been any change with respect to the appellate standard of review. It is, therefore, for the trial judge to determine whether the change has been so substantial and continuing as to make the existing order unreasonable; and upon an affirmative finding, our function is merely to determine whether or not there was substantial probative evidence supportive of that conclusion. If so, it cannot be said that the trial judge abused his discretion.
Although a change in a custody order must be necessitated by a substantial change in conditions since the order was made, it does not follow that there must be such a change that it compels the change in and of itself. The change, if its effect upon the child is to be properly assessed, must be judged in the context of the whole environment. It is, after all, the effect upon the child that renders the change substantial or inconsequential; and a change that might be regarded as slight or inconsequential in one case might be catastrophic in another. The trial judge, therefore, must consider all circumstances, including those previously weighed, in order to determine, in context, the substance of the change giving rise to the review.
The marriage of the parties was dissolved upon their joint petition in November of 1973. Custody of their sons, then ages five years and three and one-half years was awarded to the wife. The husband was to pay support money for the children and to have them every other week-end, plus Sundays on the alternate week-ends, all in accordance with the agreement of the parties, which the court approved.
On July 8, 1974, the husband filed a petition to modify the custody order, alleging a change in conditions. Upon hearing, it was determined that since the dissolution, the husband, a farmer, had continued to reside in the same farm residence as had been the family home but that he had re-married. His new wife had two children by a former marriage, a son, who resided with his father by agreement of the parents, and a daughter who resided with her mother and new husband, by agreement of the parents. The husband's new wife was willing and able to love and care for the boys and would be a good step-mother to them; and the husband was a fit and proper person to have custody of them.
It was further determined that since the dissolution, the wife had completed college and was employed by a bank in Logansport. While working, she left the children at a daycare center. She was then and had been since March 1974, living and cohabiting with Mark Krantz, with whom she testified she was considering marriage, but that the boys, then five and one-half and four years old, were well cared for and loved by their mother.
Upon that evidence, the court found that there had been no change of such a decisive nature as to warrant removing the children from the wife's custody and...
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